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dev | 001-66765 | ENG | POL | ADMISSIBILITY | 2,004 | R.P. AND J.P. v. POLAND | 4 | Inadmissible | Nicolas Bratza | Mrs R.P. (“the first applicant”) is a Polish national born in 1970. Until 2002 her initials were R.G. Mr J.P. (“the second applicant”) is a Polish national born in 1954. The applicants live in Poland. Since 2000 the applicants had been co-habiting. On 19 June 2001 the first applicant give birth to a boy, L.P. On 6 August 2001 L.P.’s maternal grandparents, Mrs T.G. and Mr M.G., lodged with the Poznań District Court a foster family application. They asked the court to deprive the applicants of their parental rights in respect of L.P. and designate themselves as the boy’s foster family. T.G. and M.G. submitted that since 6 August 2001 L.P. had remained in Śrem Hospital as a result of the first applicant’s negligence. They pointed out that the boy, who was two months old, had been admitted to the hospital because he was emaciated. He weighed only 3,450 grams, whereas his weight at the time of his birth was 3,700 grams. Moreover, T.G. and M.G. submitted that the first applicant suffered from a serious disability. In particular, she suffered from infantile cerebral paralysis, paraparesis, and was mentally retarded. The applicants lived in a building owned by the state railway company which was located near the railway and did not have any sanitary facilities. The toilet was situated in the courtyard and there was no running water, which had to be fetched from a well. The applicants could not afford to pay the rent, electricity and heating bills, and the second applicant could not earn money to pay those bills because he was receiving a disability allowance. On 20 August 2001 T.G. and M.G. made an application to the Poznań District Court for an interim residence order requiring L.P. to reside with them. On 27 August 2001 the Poznań District Court made an interim residence order requiring L.P. to reside with his maternal grandparents. At the same time it decided that the foster family application should be transmitted to the Środa Wielkopolska District Court. The court referred to Article 569 of the Code of Civil Procedure and gave the following reasons for its decision: “The minor L. was born on 19 June 2001 out of a relationship between R.G. and J.P. Both parents are handicapped pensioners. R.G. suffered from infantile cerebral paralysis. The family lives in very bad accommodation, which does not have running water, a bathroom or a toilet. The flat is damp, neglected and requires renovation. The parents are unable to properly take care of the child because of their disabilities. In addition, they are in a very difficult financial situation as they receive disability allowances in the total amount of PLN 961 and they are helped by the social services in Śrem. On 6 August 2001 the child was admitted to the hospital because of underweight and malnutrition. While the boy remained in the hospital his condition improved. He requires proper nutrition and care. The minor’s grandparents – the applicants – have proper conditions to provide the child with adequate care. The court has established the foregoing facts on the basis of the information received from the Śrem Hospital, where the minor L. is hospitalised, and social services in Kórnik. This information makes it clear that the child’s parents are unable to provide him with proper care because of their disabilities and inadequate accommodation. In these circumstances, the court has come to the conclusion that the well-being of the minor child is threatened – this is also shown by the child’s malnutrition. It has therefore decided to issue an interim residence order under Article 569 of the Code of Civil Procedure. The background check carried out in respect of the minor’s maternal grandparents has confirmed that they have proper conditions to take care of the child until the end of the proceedings and clarification of the situation of the family.” On 31 August 2001 the applicants filed with the Poznań Regional Court an appeal against the decision of 27 August 2001. The first applicant made allegations of abuse against her parents in the appeal and submitted that they should not be given the custody of L.P. as he might suffer the same abuse. On 13 November 2001 the Poznań Regional Court dismissed the applicants’ appeal. The Regional Court agreed with the reasoning of the District Court. In addition, it noted that L.P. was four months old, i.e., was of the age when the most important processes in the development of a child took place. Therefore, a situation where such a minor was in the custody of the parents who could not provide him with proper hygiene and nutrition amounted to an urgent case. On an unspecified date in 2002 the applicants married. In February 2002 J.P. approached the Poznań Committee for the Protection of the Rights of a Child (Terenowy Komitet Ochrony Praw Dziecka). The Committee carried out interviews in the neighbourhoods where the applicants and T.G. and M.G. lived, as well as in the health centre in Szczodrzykowo and social services in Kórnik. On 29 March 2002 the Committee sent to the Środa Wielkopolska District Court a letter in which it submitted that the application to deprive the applicants of the parental rights was unjustified. The letter was signed by a pedagogue and a psychologist and emphasised that the applicants were “morally and materially competent to take care of their child”. The letter also expressed the Committee’s astonishment that social services in Kórnik, which were responsible for helping parents, supported the removal of the child from their custody. On 26 August 2002 the applicants asked the Środa Wielkopolska District Court to order T.G. and M.G. to undergo psychiatric examination. On 27 August 2002 the applicants decided that they would stop visiting their son because of the hostile attitude of the grandparents. On 4 September 2002 the applicants filed with the President of the Środa Wielkopolska District Court a request challenging the presiding judge. However, on 21 September 2002 that request was dismissed. On 16 January 2003 the Poznań Family Consultation Centre (Rodzinny Ośrodek Diagnostyczno-Konsultacyjny) submitted to the Środa Wielkopolska District Court an expert opinion in the case concerning the foster family application. The opinion was signed by the director of the centre, two psychologists and a medical doctor. It included the following conclusions: “1/ presently the emotional bonds of the minor L.P. with the grandparents are the strongest as they have been taking care of him since September 2001 (i.e. for 16 months). The minor considers the grandparents to be his closest persons, he feels loved and safe in their presence, shows them his feelings and spontaneously receives from them signs of affection and closeness; 2/ the emotional bonds between the child and the biological parents have been loosened because of the lack of constant positive contacts between them. The meetings of the parents with the son showed emotional tension which resulted from the conflicts between the biological parents and the present carers of the child (...); 3/ the psychological condition of R.P. does not allow her presently and in the future to take care of the child on her own. [It is characterized by] low intellectual ability, significant mental and social immaturity, low level of critical assessment of her abilities and behaviour, excessive dependence on dominant personalities – including that of her husband, lack of ability to receive and show feelings, lack of proper assessment of the development needs of a child, as well as lack of sufficient predisposition and abilities to direct a child; R.P. has suffered from infantile cerebral paralysis and her mobility is limited. She needs constant support and help from others. For the above reasons the biological mother is not able to fully secure the emotional and psychomotor needs of the child as well as the proper living conditions and accommodation; 4/ despite the help declared by the child’s father, who himself is ill and has low educational capabilities, it is impossible to provide the minor L. with the proper conditions for his development if he is given over to the permanent and direct care of the biological parents; 5/ from the psychological and medical point of view, both parents do not guarantee the proper care of the child and the proper stimulation of his development. Both parents are disabled, have very low incomes and modest accommodation – without basic facilities (toilet located outside, no running water which is taken from a well); 6/ in view of the above, we consider that it is in the best interest of the minor L.P. to stay with the foster family of grandparents (...) who presently give the best guarantee of providing the child with better living conditions; 7/ in order to provide the child with direct contacts with his biological parents and to secure his proper emotional development we suggest that R.P. and J.P. take the minor L. for a walk twice a week (...) and in addition take him to their flat in the first and third weekend of the month (...); 8/ the supervision of both parents by a court curator is necessary in order to know whether they properly fulfil their obligations relating to the care and education of the minor L.P.; 9/ we suggest that after a year a new examination take place in our centre in order to decide whether the change of the present recommendations is necessary; 10/ if the court curator finds gross negligence on the part of the biological parents, consideration should be given again to the application to deprive R.P. and J.P. of the parental rights over their son; 11/ it has proved impossible to mediate between the parties in our centre in view of the lack of mutual understanding and negative attitudes to each other (...); 12/ the most difficult problem to solve in the present case is the lack of proper relationship between the parties. We think that a psycho corrective approach should be taken in that respect (...).” On 25 February 2003 the applicants submitted to the Środa Wielkopolska District Court a letter in which they contested the conclusions of the expert opinion. On 27 March 2003 a hearing took place before the Środa Wielkopolska District Court. The court heard two expert witnesses who had signed the opinion of 16 January 2003. Both expert witnesses confirmed the conclusions of the expert opinion. The court decided to request the Committee for the Protection of the Rights of a Child in Poznań to submit an opinion concerning the bonds between L.P. and his parents. It also decided that mediation between the child’s parents and maternal grandparents should take place. | 0 |
dev | 001-5190 | ENG | GBR | ADMISSIBILITY | 2,000 | SEHMI v. THE UNITED KINGDOM | 4 | Inadmissible | Nicolas Bratza | The applicant is a British national, born in 1957 and he is currently in prison in Kent, the United Kingdom. He is In or around 1996 the applicant was charged with conspiring to contravene section 20 of the Misuse of Drugs Act 1971, contrary to section 1(1) of the Criminal Law Act 1977. The particulars of the offence were that between 1 January 1991 and 8 May 1996 the applicant conspired with others to assist in the commission in the Netherlands of an offence punishable under the law of the Netherlands and corresponding to the law of the United Kingdom, namely, the manufacture of methylenedioxymethylamphetamine (“Ecstasy”). The applicant was alleged to have played a role in arranging for the purchase of the constituent chemicals used in the production of Ecstasy from Russia for transportation to the Netherlands or Belgium where the Ecstasy would be produced. Much of the evidence against the applicant and his co-conspirators came from a British under-cover police officer who had infiltrated the organisation in a joint British and Dutch operation. The trial of four of the applicant’s co-conspirators began in the Netherlands in November 1996. They had been charged with a number of offences relating to the same conspiracy including charges relating to the manufacture of Ecstasy. The prosecutor requested a custodial sentence of 6 years (which took account of the time spent in pre-trial detention) for WF, who was alleged to be a main player in the conspiracy. However, the Dutch court declared one of the principal charges against WF relating to the manufacture of Ecstasy inadmissible in so far as it related to acts committed outside the Netherlands and decided that that charge was otherwise not proven against him. Between December 1996 and 26 February 1997 these co-conspirators were convicted on the other charges which were not directly related to Ecstasy production. WF was found guilty of having been concerned in the importation of cannabis, of possession of firearms and ammunition, of possession of Ecstasy pills and of having being concerned in the supply of cocaine and amphetamines, and he was sentenced to 40 months’ imprisonment. The second accused was found guilty of offences almost identical to WF and he was sentenced to 30 months’ imprisonment. The third accused was found guilty of having been concerned in the importation of cannabis, of handling two stolen watches, of having been in possession of a pistol and of having been concerned in the supply of cocaine and amphetamines, and he was sentenced to 24 months’ imprisonment. The fourth accused was found guilty of having been concerned in the importation of cannabis and he was sentenced to 24 months’ imprisonment (6 months of it being suspended). In April 1997 the applicant pleaded guilty in the Crown Court in the United Kingdom to the above-described charge against him. He pleaded not guilty to 4 other related charges and these were not proceeded with. In September 1997 he was sentenced to nine and a half years’ imprisonment. The maximum sentence was 14 years’ imprisonment and he received a credit of one third in the light of his guilty plea. Submissions as to the lower sentences received by his co-conspirators in the Netherlands were rejected during his sentencing hearing. Senior Counsel’s advice dated 11 October 1997 suggested requesting leave to appeal from a single judge of the Court of Appeal (Criminal Division) on the basis that the appeal court would benefit from arguments addressing the terms of Recommendation No. R(92)17 concerning sentencing policy and the effect of that recommendation on the case of Gavin Lillie ([1995] 16 Cr. App. R (S) 534), which prohibited an English court from considering as relevant sentences imposed in other jurisdictions. The applicant applied to a single judge of the Court of Appeal (Criminal Division) for leave to appeal against sentence to that court, arguing that the sentence imposed was excessive in that it was manifestly disproportionate to that imposed on his co-conspirators in the Netherlands. On 30 December 1997 the single judge rejected the leave request, finding that there was no basis in English law upon which he could grant leave. He pointed out that the above-cited case of Gavin Lillie was binding upon him and that, in English sentencing terms, the sentence passed was unexceptional, the contrary not having been suggested by the applicant. He also found that a sentence suggested by a Dutch prosecutor would not provide any basis to challenge what was otherwise an appropriate sentence imposed by an English court. | 0 |
dev | 001-60931 | ENG | NOR | CHAMBER | 2,003 | CASE OF HAMMERN v. NORWAY | 2 | Violation of Art. 6-2 | null | 10. The applicant was born in 1949 and lives in Bjugn. 11. On 10 March 1992 the head of the social services in the municipality of Bjugn contacted the local police after having received reports from Botngård kindergarten indicating that the applicant, who was an assistant at the kindergarten at the time, had sexually abused one or more of the children there. Subsequently, a criminal investigation was carried out. On 13 March 1992 the applicant was interrogated. He denied the accusations. On the same date he was suspended from his post. 12. On 1 September 1992 the applicant was formally indicted with respect to various offences under Articles 195, 198 and 228 of the Penal Code (straffeloven) concerning the sexual abuse of minors, allegedly committed against two children at the kindergarten, and under Article 192 of the Penal Code with respect to one of them. On 12 October 1992 the indictment was extended to 14 children at the kindergarten and, on 21 October 1992, a new indictment was issued involving 15 children. On 9 January 1993 the indictment was again extended to offences of sexual abuse of 36 named children and an unknown number of children at the kindergarten. 13. On the latter date, 6 further persons were indicted for sexual offences in relation to the same matter: the applicant's wife, two employees at the kindergarten and the local sheriff. 14. As a result of the above, the applicant spent three periods in pre-trial detention – respectively 7, 7 and 32 days – a total of 46 days. In the course of the investigations, three searches were carried out at the applicant's home. 15. On 22 September 1993 the applicant was formally indicted under Articles 195, 198 and 213 of the Penal Code for having allegedly committed various offences of sexual abuse against 10 kindergarten children. 16. On the same date the charges against the six other accused persons were dropped. They later claimed compensation under Articles 444 to 446 of the Code of Criminal Procedure (straffeprosessloven). The local sheriff obtained a settlement of NOK 200,000 in compensation for non-pecuniary damage; the five others obtained a court order requiring the State to pay NOK 200,000 to each of them. The applicant's wife obtained, in addition, NOK 140,000 in compensation for pecuniary damage. 17. The applicant's trial took place before the Frostating High Court (lagmannsrett), sitting with three judges and a jury, over a period of 43 days, between 15 November 1993 and 31 January 1994. After the jury had answered all of the 25 questions relating to the indictment in the negative, the applicant was acquitted by a judgment of 31 January 1994. 18. The applicant subsequently filed a petition with the High Court, claiming compensation under Articles 444 to 446 of the Code of Criminal Procedure. The High Court, sitting with two of the judges who had taken part in the trial and a new judge (replacing the judge who had presided at the trial, disqualified from sitting in the compensation case), held an oral hearing between 13 and 15 February 1995. In its decision of 28 February 1995, the High Court ordered the State to award him the entirety of his claim of NOK 45,000 in compensation for pecuniary damage under Article 445, according to which provision such “compensation for special or disproportionate damage as a consequence of the criminal prosecution” could be awarded as was “reasonable in the circumstances”. Moreover, under Article 446, cf. 445, the High Court awarded him NOK 125,000 in compensation for non-pecuniary damage suffered as a result of the prosecution. However, on the basis of an assessment, the relevant parts of which are quoted in the Supreme Court's (Høyesterett) decision cited below (paragraph 23), the High Court rejected his claim for supplementary compensation under Article 444, it not having been shown probable that he did not commit the act which was the basis of the charge. The High Court referred to the evidence presented during the trial hearing between November 1993 and January 1994 and during the oral hearing in the compensation case in February 1995. 19. The applicant appealed against the High Court's decision of 28 February 1995 to the Appeals Selection Committee of the Supreme Court (Høyesteretts kjæremålsutvalg). He complained that the High Court's decision contained assumptions of criminal liability and that, consequently, it violated Article 6 § 2 of the Convention. He requested the Supreme Court to quash the High Court's decision. 20. By a decision of 8 June 1995, notified to the applicant by mail on 20 July 1995, the Appeals Selection Committee, considering that the applicant's appeal concerned the High Court's application of Article 444 of the Code of Criminal Procedure, rejected the appeal. 21. In its reasoning, the Appeals Selection Committee first recalled that in its decision reported in Norsk Retstidende 1994, p. 721, the Supreme Court had stated (at p. 725): “It is the accused who carries the burden of proof that he did not carry out the act. It is sufficient that it is more probable than not. I do not agree with counsel for the defence that the accused has discharged the burden of proof where both alternatives, on the basis of the available evidence, appear to be equally likely. In this assessment the ordinary standards of evidence shall apply and the requirements in respect of the strength of the evidence must then to some extent be adapted to the possibilities for the accused to show that he did not carry out the act. Given the manner in which the provision has been formulated the situation may easily arise that an acquittal is not sufficient to justify a compensation claim when the accused is unable to discharge this burden of proof. I should like to stress that the refusal of a compensation claim does not entail that the previous acquittal is undermined or that the acquittal is open to doubt. The compensation case must be determined on an independent basis and the rules on evidence applying in such compensation cases do not differ from those which apply to ordinary compensation claims. The legislator has as a starting point opted for a solution whereby the financial burden caused by the institution of criminal proceedings, which are discontinued or which end with an acquittal, must be borne by the accused unless he is able to show that it is probable that he did not commit the act.” 22. The Appeals Selection Committee further recalled that in the above case the Supreme Court considered the relationship between the conditions for compensation under Article 444 of the Code of Criminal Procedure and the case-law of the European Court of Human Rights, in particular the Sekanina v. Austria judgment of 25 August 1993 (Series A no. 266-A). The Supreme Court concluded that the rules in Article 444 of the Code of Criminal Procedure were not, as such, contrary to Article 6 § 2 of the Convention. The Appeals Selection Committee affirmed that it would base itself on this view in its assessment of the present case. It further recalled that, in the 1994 decision, the Supreme Court had expressed the following view on the Sekanina judgment: “[In this case] decisive importance was attached to the reasoning in the particular case for rejecting the compensation claim. If in the reasoning for refusing compensation doubt is voiced as to whether the acquittal was correct or if the reasoning contains assumptions about criminal liability, then the relationship to Article 6 § 2 of the Convention would be problematic.” 23. Then the Appeals Selection Committee went on to state: “As pointed out by the prosecution in its reply to the appeal, the High Court had to justify why it considered that the conditions for making an award for compensation under Article 444 of the Code of Criminal Procedure had not been fulfilled. The Appeals Selection Committee must determine whether the reasoning of the High Court conflicted with the requirements of Article 6 § 2 of the Convention. The Committee refers to the fact that the reasoning must be formulated in the light of the conditions for compensation as mentioned above. It is further clear that the High Court ... was aware of the rules in Article 6 § 2 of the Convention, the European Court's Sekanina judgment and the 1994 decision of the Supreme Court. In its decision concerning compensation under Article 444, the High Court, after having quoted the provision, specifies the subject-matter of the case as follows. 'Following the High Court's acquittal, Mr Hammern is not guilty under the criminal law. This question has not been submitted to the High Court which will not deal with it. The present case is a compensation claim brought by Mr Hammern. The question is whether he, in view of the rules of evidence under the law of compensation, is able to show that he did not carry out the acts which were referred to in the indictment.' The Committee points to the fact that here the High Court clearly specifies that Mr Hammern is not liable under the criminal law. Furthermore it is specified that the compensation claim must be determined on the basis of the rules of evidence applying under the law on compensation. The High Court then concludes, against the background of the evidence adduced, that considering the case as a whole, Mr Hammern 'has not shown it to be probable that he did not carry out the acts which grounded the charge.' Moreover, in the concluding remarks, it is stated: 'When the High Court, considering the case as a whole, reached the conclusion that Mr Hammern had not discharged his burden of proof, account was also taken of the fact that the requirements as to the strength of the evidence must to a certain extent be adapted to the possibility which he has for showing that he [Mr Hammern] did not commit the acts.... Nevertheless, in the assessment, it is the usual rules on evidence which should apply....' In support of his submission that the High Court's reasoning contains assumptions about criminal liability, he points to certain intermediate passages in which the High Court states: 'Medical experts have in the light of their investigations reached conclusions which in practice imply a very high degree of probability that the 10 children referred to in the indictment have been exposed to sexual abuse. The medical experts have discounted the possibility of self-inflicted injuries, that the injuries are caused by pathological conditions or conditions at variance from the norm. As pointed out by the prosecution, the children themselves gave statements to their parents, during the judicial examinations and to a psychologist, about abuse by Mr Hammern. Through the video recording of the judicial examinations of the children, the Court has been able to see how the children expressed themselves. The Court has been able to apprise itself of how the children during the examinations changed their behaviour when presented with questions of sexual abuse. Nor does the following fact make it less likely that he carried out the acts for which he was charged: the children markedly changed their behaviour, inter alia, in the form of bedwetting, refusing or expressing fear about going to the kindergarten, several children had a sore crotch, sore abdomen and, on one or several occasions, blood on their underwear, circumstances which essentially occurred after Mr Hammern started to work at the kindergarten and which diminished after his departure. The High Court further finds it established that at the kindergarten it was possible to perpetrate such abuse without it being revealed either from a technical or practical point of view. In the aftermath, several of the employees at the kindergarten have pointed to a few surprising situations: for instance the governor's eyewitness evidence, her perception of the situation, when she came over to Mr Hammern while he was washing a child in the crotch under peculiar circumstances. The High Court does not find any reason to go further into the discussion about the possibility of paedophilia. It is not only the so-called real paedophiles who commit abuse against children. Nor can a diagnosis which excludes paedophilia be deemed accurate, or notional paedophilia be defined precisely.' Having regard to the fact that the High Court clearly specified that its assessment was confined to the compensation case which was to be determined on the basis of the rules of evidence applying in such cases, the Appeals Selection Committee finds that the High Court' s reasoning does not go further than is necessary to carry out a careful examination of the compensation claim and that it does not entail any infringement of the presumption of innocence laid down in the Convention. The Committee once more emphasises that a refusal to award compensation under Article 444 does not imply that the previous acquittal is being undermined. In the light of the foregoing, the appeal must be rejected.” 24. Under the Norwegian jury system, when an accused is acquitted the jury is not entitled to disclose whether any of its members held a different opinion, and no records are kept which could disclose that a negative answer as to the applicant's guilt was not unanimous. The criminal system knows only two conclusions in a criminal case – guilt or acquittal (see Articles 365, 366, 372 and 373 of the Code of Criminal Procedure). There is no third alternative, which was known in some other European countries, where a criminal charge could result in the finding that there was not sufficient evidence for establishing guilt. 25. Articles 444 to 446 of the Code of Criminal Procedure provide for compensation where a person has been acquitted, or the prosecution discontinued. The provisions read as follows: “Article 444: If a person charged is acquitted or the prosecution against him is discontinued, he may claim compensation from the State for any damage that he has suffered through the prosecution if it is shown to be probable that he did not carry out the act that formed the basis for the charge. If a sentence of imprisonment or other custodial sanction has already been served, any damage resulting from this shall be compensated without regard to what has been shown to be probable. Compensation shall not be awarded when the person charged, by making a confession or otherwise, has wilfully instigated the prosecution or the conviction. If he has otherwise contributed to the damage by negligence, the compensation may be reduced or dispensed with entirely. Article 445: Even if the conditions prescribed in Article 444 are not fulfilled, the court may award the person charged compensation for special or disproportionate damage as a consequence of the criminal prosecution whenever this appears to be reasonable in the circumstances. Article 446: If the conditions relating to compensation prescribed in Articles 444 or 445 are fulfilled, the court may, when special reasons so indicate, award the person charged a suitable amount as redress for the indignity or other damage of a noneconomic nature that he has suffered as a result of the prosecution.” 26. In addition, there are certain formal conditions set out in Article 447 for the submission and examination of a compensation claim made under Articles 444 to 446: “Any claim for compensation or redress must be submitted not later than three months after the person charged has been informed of the decision that finally concludes the case. The provisions of Article 318, first paragraph, shall apply correspondingly. If the case has been concluded without any judicial trial of the evidence relating to the issue of guilt, the claim shall be submitted to a court of summary jurisdiction. Otherwise the claim shall be submitted to the court that shall conduct or has last conducted any such trial. If the claim is submitted to the District Court or the City Court, but has not been decided when an appeal against the assessment of evidence in relation to the issue of guilt proceeds to an appeal hearing, the Court of Appeal shall also decide the question of compensation. On the hearing of the claim the court shall as far as possible sit with the same judges who decided the criminal case. In the Court of Appeal lay judges or the selected jurors who join the court pursuant to Article 376 e shall not take part unless the decision is made at the same court sitting as that at which judgement is pronounced in the case.” 27. Compensation after acquittal or a discontinued prosecution is not automatic and is not granted unless the conditions in the above-cited Articles are met. 28. When compensation is granted to persons considered innocent as they have been acquitted or the prosecution against them has been discontinued, Articles 445 and 446 are the general provisions and, de facto, the main provisions providing for compensation. In the present case the applicant was awarded compensation both under Articles 445 and 446. In addition the applicant requested compensation under the special provisions of Article 444, under which the State may be liable to pay compensation even in the absence of any proof of negligence or fault on the part of the authorities. The liability of the State to pay compensation is strict where it has been shown to be probable that the claimant did not carry out the act of which he or she was charged. In the assessment of the latter, none of the other constitutive elements of a criminal offence, such as criminal intent, is in issue. 29. According to the case-law of the Norwegian Supreme Court, the evidentiary standard applying with respect to liability to pay compensation under Article 444 differs from that applying to criminal liability. Whereas in criminal proceedings it is for the prosecution to prove beyond reasonable doubt that the defendant committed the incriminated act, in compensation proceedings it is for the claimant to show that, on the balance of probabilities, it was more than 50% probable that he or she did not carry out the act grounding the charge. The requirement of proof in compensation cases may nevertheless be adjusted (i.e. to less than 50%) in the light of the claimant's ability to adduce evidence, especially where a long time has elapsed since the alleged criminal act. The competent court has to make a new assessment, independently of the acquittal, of all the evidence available in order to establish whether it is probable that the claimant did not carry out the act which formed the basis of the charge. 30. It is not a requirement for obtaining compensation that the acquitted claimant adduce new evidence. The compensation claim may thus be made with reference to the evidence made available in the criminal proceedings or obtained by the court of its own motion. 31. In 1996 the Norwegian Council on Criminal Law (Straffelovrådet) made a recommendation to the Ministry of Justice that Articles 444 to 446 of the Code of Criminal Procedure be amended in a number of respects, including the abolition of the condition whereby the claimant must prove that on the balance of probabilities he or she did not carry out the act giving rise to the charge. Nevertheless, the Council was of the view that the provisions in force are not inconsistent with Norway's obligations under Article 6 § 2 of the Convention, as interpreted by the Court in its case-law (see Norges Offentlige Utredninger (Official Norwegian Report), Erstatning i anledning straffeforfølgning (Compensation in connection with Criminal Proceedings), 1996: 18, pp. 20-22, 36, 5 2). On 15 May 2002 a Government Bill was presented to Parliament (Ot.prp.nr.77, 2001-2002), proposing inter alia the repeal of this condition. | 1 |
dev | 001-4682 | ENG | NLD | ADMISSIBILITY | 1,999 | SUART v. THE NETHERLANDS | 4 | Inadmissible | Gaukur Jörundsson;Josep Casadevall | The applicant is a Netherlands national, born in 1962 and resident on Curaçao (Netherlands Antilles). He is represented before the Court by Mr G.P. Hamer, a lawyer practising in Amsterdam. A. The applicant hails originally from Curaçao (Netherlands Antilles). It appears that at some time before the events complained of he was convicted of drugs dealing there and spent fourteen months in prison. He subsequently moved to the Netherlands. In the spring of 1993 the applicant went to visit his native Curaçao. He returned to the Netherlands on 13 April 1993, arriving at Schiphol (Amsterdam) Airport on 14 April. Passing through customs the applicant stated that he had nothing to declare. Nonetheless his luggage was inspected by customs officials. A clock was found which had a wooden casing decorated with a picture of a typical Curaçao house. It appears from an official record subsequently drawn up by the customs officials concerned that they had felt the clock body to be “rather thick” and that, when they tapped it, it had sounded hollow. They had drilled a hole into it and some white powder had come out on the drill. When opened the clock was found to contain 620 grams of a substance identified as cocaine. The cocaine and the clock were seized. The applicant was arrested and questioned by a police officer and a customs officer. He stated that he had not known that the clock contained cocaine. The police officer placed him in police custody (inverzekeringstelling). The applicant was questioned by the police officer and the customs officer on 16 April 1993. According to his statement on this occasion, he had met a young woman, one D., on Curaçao, with whom he had entered into an intimate relationship. The applicant and D. had planned to travel to the Netherlands together. For this reason he had postponed his departure for a few days. His airline ticket, which had cost 1,900 guilders, had been bought for him by a friend. He had given this friend 1,200 guilders and the friend had paid the balance himself. He declined to give the name of the friend. On the day of the applicant’s and D.’s planned departure, 13 April 1993, D. had told the applicant that she would not accompany him. She had given him a souvenir clock. The applicant had travelled to the Netherlands alone. The applicant stated that he was not prepared to relinquish title (afstand doen) to the clock and the cocaine because they were not his. An unsigned document which was apparently appended to a receipt dated 14 April 1993 and delivered to the applicant by the police officer and the customs officer states that the applicant had in fact relinquished title to the clock and the cocaine. This document further states that the clock and the cocaine would be kept by the police at Schiphol Airport pending a decision of the public prosecutor. The applicant was questioned by an investigating judge on 16 April 1993. He made a brief statement confirming the statement made earlier the same day to the police officer and the customs officer. The investigating judge placed him in detention on remand (voorlopige hechtenis). On 19 May 1993 the applicant was released pending trial by order of the Haarlem Regional Court after a brief hearing in camera. According to the applicant’s counsel the clock was present at that hearing. The Regional Court’s order, however, does not refer to it. Proceedings in the Regional Court On 19 July 1993 the public prosecutor (officier van justitie) sent the applicant a notification that he would be prosecuted for importing or, in the alternative, possessing a quantity of cocaine. The applicant was summoned to appear before the Regional Court (arrondissementsrechtbank) of Haarlem on 29 November 1993. The summons was served at the applicant’s registered address in Lelystad on 28 October 1993. As the applicant was not at home at the time, the summons was handed to his sister, who agreed to take charge of it and ensure that it reached the applicant without delay. On 24 November 1993 the applicant’s lawyer sent two fax messages, one to the Regional Court’s registrar and one to the public prosecutor, both asking for the clock to be produced at the hearing. Two days later the applicant’s lawyer received a message by telephone from the secretary of the public prosecutor to the effect that the clock had not been deposited at the registry of the Regional Court and could not be traced. The applicant did not appear at the hearing on 29 November 1993. His counsel, who was present, stated that the applicant was apparently living in Amsterdam and that he had the impression that the summons had reached the applicant. He did not seek an adjournment for lack of any arguments on which to base such a request. The Regional Court proceeded with the trial in the applicant’s absence. Invoking the report of the European Commission of Human Rights in the case of Lala v. the Netherlands (4 May 1993, no. 14861/89, Series A no. 297-A), the applicant’s counsel asked to be allowed to address the court in the applicant’s defence. The prosecution objected on the ground that no compelling reasons were apparent which prevented the applicant from attending the hearing. This objection was accepted by the Regional Court, which accordingly proceeded to a judgment without hearing any defence argument. On 13 December 1993 the Regional Court gave its judgment. It found the applicant guilty of having intentionally imported 620 grams of cocaine into the Netherlands and sentenced him to twelve months’ imprisonment. It withdrew the clock and the cocaine from circulation. Proceedings in the Court of Appeal The applicant appealed to the Court of Appeal (gerechtshof) of Amsterdam. A summons to appear before the Court of Appeal on 1 September 1994 was addressed to the applicant at his address in Lelystad. However, it appeared that the applicant had in the meanwhile returned to Curaçao, and so the Court of Appeal declared the summons null and void. The applicant was summoned anew, this time to appear before the Court of Appeal on 4 January 1995. The applicant’s counsel – not the same lawyer who had tried to defend the applicant before the Regional Court – submitted grounds of appeal in writing. Relying on the European Court’s Lala v. the Netherlands judgment of 22 September 1994 (Series A no. 297-A) he argued that the first-instance proceedings had not been fair because the defence had not been heard. He asked for the case to be referred back to the Regional Court for rehearing in the applicant’s presence. Relying on, inter alia, the judgment of the European Court of Human Rights in the case of Salabiaku v. France (7 October 1988, Series A no. 141-A), he argued that criminal intent on the part of the applicant could not be proved. The clock which D. had given the applicant had appeared perfectly normal and there had been nothing to suggest that it might contain any illicit substance. He asked for the clock to be produced at the hearing. The Procurator General (procureur-generaal) of the Court of Appeal wrote to the applicant’s counsel on 22 December 1994 informing him that the clock could not be produced because it had been destroyed. The applicant and his counsel were present at the hearing on 4 January 1995. Counsel asked the Court of Appeal first to rule on the preliminary objections contained in his statement of grounds of appeal. The Court of Appeal withdrew to consider these objections. After deliberating in private it rejected the objection that the summons to the first-instance hearing had been served at the wrong address, noting that the address to which it had been served had been the address at which the applicant was registered and that it did not appear that the applicant had not been resident there. It further found that Article 6 of the Convention did not oblige it to refer the case back to the Regional Court on the ground that the applicant’s counsel had not had the opportunity to address that court in the applicant’s absence. The hearing was resumed. The applicant availed himself of his right to remain silent. The applicant’s lawyer again asked for the clock to be produced. The Procurator General again stated that it had been destroyed. The lawyer then argued that the prosecution ought to be declared inadmissible because what it considered to be the most essential item of prosecution evidence, the clock, had been destroyed; in the alternative, since the clock could not be produced, it should be assumed that the applicant had not had any real reason to examine it when it was given to him, and so the clock could not be relied upon to ground a conviction. The Court of Appeal gave its judgment on 18 January 1995. It found the applicant guilty of having intentionally imported cocaine into the Netherlands and sentenced him to twelve months’ imprisonment. The Court of Appeal noted that although the applicant had not formally relinquished title to the clock, it could be inferred from his “procedural attitude” (proceshouding) at the relevant time that he had not been interested in having the clock re-examined at a later stage. There was therefore no need to declare the prosecution inadmissible merely because the clock had been destroyed by mistake. Moreover, the clock was not so important an item of prosecution evidence as the defence claimed. In any event, sufficient information about it was available in the form of descriptions and photographs, and to that extent the rights of the defence were not impaired to any material extent. In so far as the defence claimed that it had not been apparent that there had been anything unusual about the clock, the Court of Appeal referred to the official report by the customs officers who had arrested the applicant, from which it appeared that the applicant had been found in possession of a clock comprising a wooden body which had appeared “rather thick” and which, when tapped on, had sounded hollow. Proceedings in the Supreme Court The applicant, through his lawyer, lodged an appeal on points of law to the Supreme Court (Hoge Raad) on 29 May 1995. He complained, as his first ground of appeal, that since the prosecution had been responsible for the destruction of the clock, the prosecution ought to have been declared inadmissible or, in the alternative, all evidence based on the clock ought to have been rejected. It was of essential importance whether or not the appearance of the clock had been such as to justify any reasonable suspicion that it might contain cocaine – which in his contention was not the case. Moreover, even if the applicant should be considered to have relinquished title to the clock – which in his contention was not so either – he had not waived the right to base a defence on it. Finally, the photographs contained in the file were not adequate substitutes for the clock itself. He claimed, as his second ground of appeal, that since he had consistently denied all knowledge of the fact that the clock contained cocaine, it could not be proved that he had intentionally imported that substance into the Netherlands. In his contention the finding of intent had been based solely on the presence of the cocaine in his luggage. As his third ground of appeal, relying on the European Court’s above-mentioned Lala judgment, he complained about the refusal by the Court of Appeal to refer the case back to the Regional Court for a rehearing at first instance, given that the Regional Court had refused to allow his counsel to address it in his defence. Finally, should the above grounds of appeal in themselves not constitute sufficient reason to overturn the judgment of the Court of Appeal, he argued that, taken together, they reflected a general lack of fairness of the proceedings. The Supreme Court gave its judgment on 7 November 1995. It rejected the appeal in its entirety. With regard to the third ground of appeal, the Supreme Court referred to its own case-law according to which the failure by the first-instance court to allow counsel to plead in the absence of the accused, although unlawful per se, did not entail any obligation on the part of the Court of Appeal to refer the case back to the Regional Court for a rehearing at first instance. The fourth ground of appeal was rejected in view of what had been held with regard to the other three points. | 0 |
dev | 001-106646 | ENG | SWE | ADMISSIBILITY | 2,011 | HAJJ HUSSEIN v. SWEDEN | 4 | Inadmissible | Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert | The applicant, Zeina Hajj Hussein, was born in 1965 and claims to be Lebanese. However, the Swedish authorities found that she had not made it probable that she originates from Lebanon and therefore held that her case should be tried not only against Lebanon but also against the neighbouring countries Turkey and Syria. In 2006, the applicant had a relationship with a man who turned out to be a drug addict and dealer. After her parents banned her from seeing him, he started to harass her and threatened to kill her. Her brother also threatened to kill her due to that relationship. On 7 May 2009 the Migration Board rejected her asylum application as it found the alleged incident to be an act of criminality which was for the domestic authorities to handle. The applicant had neither turned to those authorities for protection nor made it probable that they could not provide protection against the threats in question. The Board therefore held that, should the applicant be victim of further crimes upon return, she could seek protection from the authorities in Lebanon, Syria or Turkey. On 22 November 2010 the Migration Court upheld the decision of the Board. As stated by herself in the present application, the applicant did not appeal against the Migration Court’s judgment to the Migration Court of Appeal. With the rejection of the applicant’s asylum application she has no right to remain in Sweden and can be removed without further proceedings. The provisions applicable in the present case are laid down in the Aliens Act (Utlänningslagen, 2005:716). The Act defines, inter alia, the conditions under which an alien can be deported or expelled from Sweden as well as the procedures relating to the enforcement of such decisions. The Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden (Chapter 5, section 1). The term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country (Chapter 4, section 1). This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, section 2). As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, section 1). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, section 2). Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This is the case where new circumstances give reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or where there are medical or other special reasons why the order should not be enforced (Chapter 12, section 18). If a residence permit cannot be granted under these rules, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, sections 1 and 2, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not having done so. Should the applicable conditions not be met, the Migration Board shall decide not to grant a re-examination (Chapter 12, section 19). Matters concerning the right of aliens to enter and remain in Sweden are dealt with by three instances: the Migration Board, the Migration Court and the Migration Court of Appeal. The applicants are entitled to be represented before these bodies by publicly-appointed counsel (Chapter 14, section 3, Chapter 16, section 9, and Chapter 18, section 1). The time-limit for appeals to the final instance is three weeks from the date of the appealed judgment (Chapter 16, section 10). For a case to be considered by the Migration Court of Appeal, leave to appeal is required and will be granted if there are special reasons for hearing the appeal or if the determination of the Migration Court of Appeal may be of importance as a precedent. If leave to appeal is granted, the Migration Court of Appeal can decide the case on the merits (Chapter 16, section 12). | 0 |
dev | 001-57713 | ENG | GBR | CHAMBER | 1,991 | CASE OF VILVARAJAH AND OTHERS v. THE UNITED KINGDOM | 2 | No violation of Art. 3;No violation of Art. 13 | C. Russo;R. Pekkanen | 9. The first applicant, Mr Nadarajah Vilvarajah, born in 1960, is a citizen of Sri Lanka, of Tamil ethnic origin. He worked as an assistant in his father’s shop in Paranthon, Kilinochchi District, in the northern part of the island. On several occasions the Sri Lankan army had attacked his district, killing people and destroying property. His cousin and five other men were killed by the army in 1986 and the family shop was raided and damaged on 28 March 1987. 10. He stated that he was detained on two occasions by naval forces in March and April 1986 and assaulted. On the first occasion he was driving a minibus which broke down close to a naval base. He and his passengers were detained by a navy patrol for ten hours. He claimed to have been heavily beaten. On the second occasion, whilst driving the minibus, he was stopped by a naval patrol and detained for twenty-four hours. They accompanied the bus back to his home town of Karainagar where they opened fire at random on people there. Fire was also exchanged between a Tamil separatist group, the Liberation Tigers of Tamil Eelam ("LTTE"), and the naval personnel, who used the bus passengers as shields. 11. During a major Sri Lankan army offensive to retake the Northern Province from the LTTE, the first applicant’s family lost their shop and belongings and were at serious risk of losing their lives. In May 1987 his father arranged with an agent in Colombo for him to be sent to London. He travelled on his own passport to Madras on 6 June 1987. On 10 June he travelled with a Malaysian passport (provided by an agent in Madras) to London via Bombay. He arrived in London on 11 June seeking entry to the United Kingdom as a visitor for two days, in transit to Montreal, Canada, where he said he was going for a holiday. He was detained pending enquiries. On admitting that he was not the rightful holder of the Malaysian passport in which his photograph had been substituted for that of the true owner, he was refused leave to enter the United Kingdom, under paragraph 3 of the Statement of Changes in Immigration Rules (see paragraph 84 below) which requires that a person seeking admission must produce a valid passport or other identity document. 12. On 12 June he requested asylum in the United Kingdom under the 1951 United Nations Convention relating to the Status of Refugees as amended by the Protocol of 1967 ("the 1951 Refugee Convention"). On 19 June he was interviewed by immigration officers in the Tamil language with the assistance of an interpreter. He stated that it was unsafe for him to remain in Sri Lanka for the reasons outlined above. 13. The applicant’s asylum request was then referred to the Refugee Section of the Immigration and Nationality Department of the Home Office. However, they concluded that he had not shown that he had a well-founded fear of persecution for the purposes of the 1951 Refugee Convention. On 20 August 1987 the Secretary of State refused his request for asylum. He was informed of this decision in the following terms: "You have applied for asylum in the United Kingdom on the grounds that you hold a well-founded fear of persecution in Sri Lanka for reasons of race, religion, nationality, membership of a social group or political opinion. You said it was unsafe for you to remain in Sri Lanka due to Government operations around Jaffna. You also said you had been detained on two occasions in March and April 1986 for 10 hours and 24 hours respectively and that on 28 March 1987 the army raided your family business. But it is noted that the incidents you have related were random and part of the army’s general activities directed at discovering and dealing with Tamil extremists and that they do not constitute evidence of persecution. You have produced no other evidence in support of your application for asylum. The Secretary of State has considered the individual circumstances of your case and in addition the situation in Sri Lanka and has concluded that you have not established a well-founded fear of persecution in Sri Lanka. Accordingly your application for asylum is refused. Since you do not otherwise qualify to enter the United Kingdom, the Immigration Service has been instructed to arrange for your removal to Sri Lanka to which country you are returnable under para. 10 of schedule 2 Immigration Act 1971." 14. Arrangements for his removal to Sri Lanka were made for 22 August 1987. The applicant then instituted proceedings for judicial review in which he sought, unsuccessfully, to have the Secretary of State’s decision quashed (see paragraphs 67-69 below). 15. The applicant was returned to Sri Lanka on 10 February 1988. He was escorted by police officers, the Sri Lankan authorities having been forewarned. His name was published in Sri Lankan newspapers. He was interviewed briefly on arrival by Sri Lankan immigration authorities at the airport. A member of the British High Commission was also present at the airport on arrival. The removal expenses were paid by the Home Office and the first applicant had funds in excess of £100. 16. After his return an appeal was lodged in the United Kingdom by his solicitors under section 13 of the Immigration Act 1971 against the asylum refusal (see paragraphs 71-72 below). They went to Colombo to interview and take statements from him. He confirmed that thanks to the publicity surrounding his case and the presence of the member of the British High Commission he was given little trouble at the airport. He stated that he was questioned for about three hours by the Sri Lankan police as to whether he had connections with Tamil separatist groups like the People’s Liberation Organisation of Tamil Eelam ("PLOTE") and the LTTE, which he denied. The police noted his address and took his fingerprints. 17. The applicant stated that he returned to his native village to avoid the Sri Lankan authorities and denunciation by the PLOTE with whom he had been associated, in fact, but who were now cooperating with the Indian Peace Keeping Forces ("IPKF") in identifying their former members and alleged LTTE members. 18. He also said that two weeks after his return he was denounced to the IPKF and summoned to the local Chief Officer’s Office. He was accused of connections with the LTTE and became frightened. However, he was allowed to return home after questioning. On a visit to Jaffna in April 1988 he was rounded up with other Tamils and detained for ten hours by the IPKF. They were paraded in front of masked men who identified certain persons. He was afraid they would make an error, but he was released. 19. The applicant recounted other incidents which led him to fear IPKF ill-treatment because of his earlier involvement with the PLOTE and the IPKF’s arbitrary manner of dealing with Tamils. When he went to Colombo to see his solicitors he had to go through numerous IPKF and Sri Lankan checkpoints doubling the length of the normal eight hour journey. 20. On 13 March 1989 the Adjudicator found in the applicant’s favour and he was subsequently allowed to return to the United Kingdom on 4 October 1989 (see paragraphs 71-72 below). Shortly after his return he made a further application for asylum which is still under consideration. He has been granted exceptional leave to remain initially for 12 months and thereafter until 22 March 1992. 21. The second applicant, Mr Vaithialingam Skandarajah, born in 1958, comes from Jaffna in the north of Sri Lanka, an area which had been under the control of the LTTE when he was living there. He stated that in 1985 the Sri Lankan army staged a reign of terror. People could not go out in the street. Young men were arrested without reason; some were tortured or "disappeared" or were shot on sight. Everyone was suspected of being a Tamil separatist and lived in fear. When the army conducted searches the applicant and his family hid in trenches. His house was searched regularly until 1985. It was destroyed in 1986. The family had to go for days without food and starved because it was dangerous to go out to fetch it. The army’s daily bombing of the Tamil area was indiscriminate. It was this and damage to his home and business on 24 April 1987 which made him decide to leave. He claimed to have been questioned by the police about the LTTE, although he has never belonged to them. 22. The applicant left Jaffna having lost all his possessions apart from 150,000 rupees. He went to Colombo where he was arrested by the police on 2 May 1987 at his uncle’s home. He stated that he was held for twenty hours and tortured, resulting in injury and scarring to his right leg. 23. On 6 June 1987 the applicant travelled by air from Colombo to Madras on his Sri Lankan passport. On 10 June he then travelled with a false Malaysian passport, obtained through an agent in Madras, via Bombay to London. He sought entry as a visitor for two days, in transit to Montreal, Canada. 24. The applicant was refused leave to enter by the United Kingdom immigration authorities on 12 June under paragraph 3 of the Statement of Changes in Immigration Rules (see paragraph 11 above). He then revealed his Sri Lankan nationality and requested asylum. On 17 June he was interviewed by immigration officers about his asylum application in the Tamil language with the assistance of an interpreter. He explained his fear of persecution if returned to Sri Lanka. 25. His case was then referred to the Refugee Section of the Home Office. It was concluded that he had not demonstrated that he had a well-founded fear of persecution within the meaning of the 1951 Refugee Convention. On 20 August 1987 the Secretary of State refused his asylum request. He was informed of this decision in the following terms: "You have applied for asylum in the United Kingdom on the grounds that you hold a well-founded fear of persecution in Sri Lanka for reasons of race, religion, nationality, membership of a social group or political opinion. The Secretary of State has considered your application. You said it was unsafe for you to return to Sri Lanka because of the Government operation around Jaffna. You stated that your house and business premises had been destroyed by Government shelling. You also said that you had been detained for 20 hours in May 1987 and had been assaulted. But it appears that the destruction of your house and business resulted from a random shelling arising from civil disorder and it appears that your arrest and brief detention were part of the army’s general activities directed at discovering and dealing with Tamil extremists. The Secretary of State has considered the individual circumstances of your case and in addition the situation in Sri Lanka and has concluded that you have not established a well-founded fear of persecution in Sri Lanka. Accordingly your application for asylum is refused. Since you do not otherwise qualify to enter the United Kingdom, the Immigration Service has been instructed to arrange for your removal to Sri Lanka to which country you are returnable under para. 10 of schedule 2 Immigration Act 1971." 26. Arrangements for his removal to Sri Lanka were made for 22 August 1987. The applicant then instituted proceedings for judicial review in which he sought, unsuccessfully, to have the Secretary of State’s decision quashed (see paragraphs 67-69 below). 27. The applicant was returned to Sri Lanka on 10 February 1988. His reception at the airport was the same as that of the first applicant (see paragraph 15 above). He was then interviewed by the Sri Lankan police for several hours and fingerprinted. He stayed at his uncle’s house in Colombo for about a month until it was safe to travel to Jaffna. 28. After his return to Sri Lanka an appeal was lodged in the United Kingdom by his solicitors under Section 13 of the Immigration Act 1971 against the refusal of asylum. They went to Colombo to interview and take statements from him (see paragraphs 71-72 below). He told them that on 10 March 1988 he was travelling to Jaffna by bicycle from his home when he was stopped at an IPKF checkpoint. Tamil men and boys were lined up for identification by two masked men, one of whom picked out the applicant. He was taken with about ten others to an IPKF camp in a Jaffna house where he was beaten for about three hours. Part of the time he was clubbed with sand-filled PVC pipes. At the same time questions were shouted at him about the LTTE, of which the applicant denied any knowledge. He was kept in a small room without bedding or sanitary facilities, with six other detainees who were receiving similar ill-treatment. Some of them were hung upside down and beaten. The applicant was beaten intensely on three occasions over the next seven days for periods of about half an hour. 29. He was detained until 24 May 1988, and questioned by the same men. He lost 20-30 lbs in weight, had bad headaches and was very frightened. The Indian soldiers constantly told him that if he did not talk they would keep him locked up for ever. The detainees were given rice, dahl and chapatis and insufficient water. They became dehydrated and constipated. They were filmed and apparently later shown on television as surrendered LTTE men. The applicant was rescued by members of his family who bribed the local IPKF commander with gold. 30. On release he was told to report daily. He then fled to Colombo. He stated that life there at that time was very tense for Tamils. There was a constant danger of arbitrary arrest, detention and denunciation by informers. However, he felt safer in Colombo than in Jaffna. To justify his stay in Colombo he registered as a student. 31. On 13 March 1989 the Adjudicator found in the applicant’s favour and he was subsequently allowed to return to the United Kingdom on 4 October 1989 (see paragraphs 71-72 below). Shortly after his return he made a further application for asylum which is still under consideration. He has been granted exceptional leave to remain initially for twelve months and thereafter until 22 March 1992. 32. The third applicant, Mr Saravamuthu Sivakumaran, born in 1966, comes from Point Pedro, where his family lives, in the north of Sri Lanka. In April 1984 he witnessed the killing of his brother by navy personnel. His brother was fishing in a boat with a friend off the coast at Point Pedro. Navy personnel came by in a boat and shot and killed both of them without warning or reason. 33. In March 1984 security forces came to the area and rounded up male Tamils, including the third applicant. They were detained for one day and assaulted with rifle butts and sticks. Their names and family details were noted. Some of them were taken away by the army. In June 1984 300 male Tamils, including the applicant, were detained in Point Pedro. They were assaulted. The security forces took away fifteen people and shot and killed them the same day. The bodies were burned. 34. In September 1984 male Tamils were also rounded up and detained for one day. The applicant was again detained. About twenty people were taken away, shot and killed. The bodies were burned on the spot. 35. Point Pedro has been regularly subjected to air bombardment and shelling by the army. The applicant’s family house was damaged during an air bombardment in October 1985 and the family had to move to another house in the area. 36. The applicant stated that he was in the LTTE from late 1984 until he left Sri Lanka. He did some military training and was a sentry for the camp. He also carried communications for them. He claimed, however, never to have been involved in any violence or terrorist activities. 37. His father decided that the applicant should leave Sri Lanka as he feared for his son’s safety as a young male Tamil. Arrangements were made through a Tamil agent in Point Pedro for his son to leave the country. The applicant travelled to Colombo on 28 November 1986 and stayed with the agent until 11 December 1986. He travelled to the United Kingdom via India, Nepal and Dhaka. On the way to Colombo airport, the minibus in which he was travelling was stopped at an army checkpoint just before the airport. The applicant and the other passengers were accused of going for training with militants in India. They were taken to an office and held for three hours, questioned and fingerprinted. 38. The applicant was one of a group of some 64 Tamils who arrived at Heathrow Airport, London, on 13 February 1987 and claimed asylum. He originally stated that he was in transit to Norway. The 64 Tamils were all detained pending the proceedings. 39. He was interviewed by immigration officers in the Tamil language with the aid of an interpreter. He described the events outlined above. At that stage he averred that he was not a member of the LTTE and, in fact, did not make this claim to the British authorities until September 1987 as he feared it would have adverse effects on his asylum application. His case was referred to the Refugee Section of the Home Office. They concluded that the applicant had not established a well-founded fear of persecution within the meaning of the 1951 Refugee Convention and his application for asylum was refused on 16 February 1987. However, an application for leave to apply for judicial review was made to the Divisional Court and granted on 24 February. On 2 March the Home Office informed the applicant’s solicitors that a fresh decision would be taken on the asylum claim. 40. Representations from the United Kingdom Immigrants’ Advisory Service ("UKIAS") were received and the applicant was re-interviewed about his asylum claim on 14 April 1987. The application for asylum was reconsidered in the Refugee Section but they again concluded that the applicant had not demonstrated that he had a well-founded fear of persecution. Details of the case were referred to the Secretary of State, who reached a similar conclusion. Accordingly, on 20 August 1987 a refusal letter was served on the third applicant, which read as follows: "You have applied for asylum in the United Kingdom on the grounds that you hold a well-founded fear of persecution in Sri Lanka for reasons of race, religion, nationality, membership of a social group or political opinion. The Secretary of State has further considered your application. You said it was too dangerous to stay in Sri Lanka. People were being arrested indiscriminately and killed by the security forces. You also said that you had been detained on three occasions between 1984 and 1985 and that you had been detained for three days after being arrested with your travelling companions on the way to Colombo. Lastly you said your brother, Kamarajah, had been shot by the navy in 1984. But it is noted that the experiences to which you refer were the result of civil disorder in Sri Lanka rather than persecution within the terms of the United Nations Convention relating to the Status of Refugees and that your arrests were part of the army’s general activities directed at discovering and dealing with Tamil extremists and that on each occasion you were released without charge after a short period. It is further noted that your brother was shot dead by the navy when he failed to obey a lawful order. The Secretary of State has considered the individual circumstances of your case and in addition the situation in Sri Lanka and has concluded that you have not established a well-founded fear of persecution in Sri Lanka. Accordingly your application for asylum is refused. Since you do not otherwise qualify to enter the United Kingdom, the Immigration Service has been instructed to arrange for your removal to Sri Lanka to which country you are returnable under para. 10 of schedule 2 Immigration Act 1971." 41. Arrangements for his removal to Sri Lanka were made for 22 August 1987. The applicant then instituted proceedings for judicial review in which he sought, unsuccessfully, to have the Secretary of State’s decision quashed (see paragraphs 67-69 below) 42. The applicant was removed to Sri Lanka on 12 February 1988. His reception at the airport was the same as that of the first applicant (see paragraph 15 above). 43. On 9 January 1990 the applicant’s representatives submitted a statement he had made to them about his treatment in Sri Lanka on his return there as of 13 February 1988. He alleged that on his return he was held by the Sri Lankan Police (Criminal Investigation Division) for a day and treated like a criminal whilst being interrogated about his reasons for having gone to the United Kingdom. He then stayed with his parents for a few weeks. On 2 April 1988 whilst passing through a checkpoint he was identified by a masked man as having being involved with the LTTE and detained by the IPKF. He was interrogated about the LTTE and tortured every four or five days. He was stripped and beaten with iron bars and sand-filled PVC pipes. Sometimes he was tied upside down and a fire, with chillies, lit underneath his head lasting 10 or 15 minutes until he passed out. On four or five occasions he was subjected to electric shock treatment to his genitals. He admitted his previous involvement with the LTTE. He was released on 3 October 1988 after his parents managed to bribe the Commanding Officer. He then spent two weeks in hospital as he could hardly walk. However, he was rearrested on 29 November 1988 by the IPKF, accompanied by members of the Eelam People’s Revolutionary Liberation Front ("EPRLF"). He received the same ill-treatment as before and was released on 30 December 1988 following a further bribe from his parents. He went into hiding for two months and tried to travel to Canada but was cheated by an agent who left him in Malaysia. He then had to return to Sri Lanka in April 1989 and hid in Colombo. There he was once beaten up by navy personnel. Since his return to the United Kingdom he stated that the IPKF and EPRLF are still harassing his family. 44. Although the applicant’s whereabouts were undisclosed for some time, he kept in contact with his solicitors, who lodged an appeal in the United Kingdom on his behalf against the refusal of asylum. This appeal was successful. The Adjudicator upheld his claims on 13 March 1989 (see paragraphs 71-72 below). The applicant was subsequently allowed to return to the United Kingdom on 4 October 1989, where he was granted exceptional leave to remain initially for twelve months and thereafter until 22 March 1992. Shortly after his return he made a further application for asylum which is still under consideration. 45. The fourth applicant, Mr Vathanan Navratnasingam, born in 1970, comes from Achelu but received his schooling in Point Pedro until December 1986. He claimed to have been detained five times by the Sri Lankan armed forces: in 1983 for one month, in 1984 for one day, in 1985 for one week, in 1986 for half a day and in 1987 for one and a half days. 46. In May 1984 the army set fire to his school at Point Pedro. The day after the raid he was detained at the local army camp for six or seven hours and accused of burning down the school. The principal of the school protested and secured his release. 47. In May 1986, while the applicant was on his way to school by bus, an army helicopter bombed a bridge which the bus was to cross and everyone was ordered off the bus. He was detained at an army camp for seven hours and threatened with ill-treatment. His elder brother in the meantime fled to France (January 1986) where he was granted political asylum. 48. After August 1986 there was intensive shelling by the army and on 1 January 1987 the family home in Achelu was destroyed. He has not seen either his mother or sister since. His father returned to the family house to find it destroyed and on 15 January 1987 took his son to Colombo by bus. They were arrested at Elephant Pass, 30 miles from Jaffna, and held at the army camp there for one and a half days. 49. They arrived in Colombo on 18 January 1987, where his father arranged with an agent for his son to leave Sri Lanka. The applicant had felt insecure in Colombo as he had Tamil identity cards and the authorities knew he was not a local. He subsequently flew to London, arriving at Heathrow airport on 13 February 1987 where he requested asylum. Several pages of his passport had been removed. He was one of the group of 64 Tamil asylum seekers (see paragraph 38 above). 50. The applicant was detained pending the proceedings. He was interviewed on two occasions by an immigration officer in the Tamil language with the assistance of an interpreter. During these interviews he described the events outlined above. He also stated that he had not been politically involved in Sri Lanka. 51. His case was then referred to the Refugee Section of the Home Office. They concluded that the applicant had not established a well-founded fear of persecution within the meaning of the 1951 Refugee Convention and his application was refused on 17 February 1987. However, an application for leave to apply for judicial review was made to the Divisional Court and granted on 24 February. On 2 March the Home Office informed the fourth applicant’s solicitors that a fresh decision would be taken on the asylum claim. 52. Representations from UKIAS were received and the applicant was re-interviewed about his asylum claim on 23 April 1987. The application for asylum was reconsidered in the Refugee Section but they again concluded that he had not demonstrated that he had a well-founded fear of persecution. Details of the case were referred to the Secretary of State, who reached a similar conclusion. The fourth applicant was informed of this decision by the Home Office on 1 September 1987 in a letter which read as follows: "You applied for asylum in the United Kingdom on the grounds that you have a well-founded fear of persecution in Sri Lanka for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Secretary of State has further considered your application. Sri Lanka has in recent years experienced considerable disorder which the Sri Lanka authorities have had to take measures to control. As a result of this disorder individuals of all ethnic groups have suffered. However the Secretary of State, having considered all the available evidence, does not consider that Tamils in Sri Lanka are a persecuted group who have a claim to refugee status under the 1951 UN Convention Relating to the Status of Refugees simply by virtue of their ethnic or national origins. Nevertheless the Secretary of State does consider individual applications for asylum made by Tamils from Sri Lanka to see whether they fall within the terms of the 1951 UN Convention. This depends on the circumstances in the individual case. In support of your application you said that your life was in danger in Sri Lanka and that your house had been damaged by army shelling. You also said that you had once been held up by the army with the others on your school bus for six hours, and also that the bus you were travelling on from Jaffna to Colombo had been held up by the army for 24 to 36 hours. At your interview on 13 April 1987 you added that you had been picked up by the army and held for an hour in 1984. However the Secretary of State has also taken account of the fact that the damage to your house had been caused by indiscriminate shellings, that neither you nor your travelling companions had been harmed in any way on the two occasions you were held up and that you had not been harmed while detained for an hour in 1984. Moreover the United Kingdom Immigrants’ Advisory Service have stated on your behalf that you did not stay in Colombo after reaching there on 18 January 1987 because you felt insecure on account of holding a Tamil identity card and because the authorities knew that you were not a local. You stated at a further interview in April 1987 that you thought your father, who had accompanied you to Colombo and saw you off on the plane on 2 February, had probably gone back to take up his job as a teacher in a government run school and had re-established contact with your mother and sister. Having taken account of all the matters you have put forward in support of your application and of the other matters set out in this letter the Secretary of State is not satisfied that you have a well-founded fear of persecution in Sri Lanka within the terms of the 1951 UN Convention Relating to the Status of Refugees. Since you do not otherwise qualify for leave to enter the United Kingdom, the Immigration Service have been instructed to arrange your removal to Sri Lanka to which country you are returnable under para. 10 of schedule 2 to the Immigration Act 1971." 53. Arrangements for the applicant’s removal to Sri Lanka were made for 4 September 1987. The applicant then instituted proceedings for judicial review in which he sought, unsuccessfully, to have the Secretary of State’s decision quashed (see paragraphs 67-69 below). 54. The applicant was removed to Sri Lanka on 12 February 1988. His reception at the airport was the same as that of the first applicant (see paragraph 15 above). He was then interviewed aggressively by the Sri Lankan police for four hours about his association with Tamil groups and the travel agencies who had been involved in his escape to the United Kingdom. His fingerprints were taken. 55. After his return to Sri Lanka an appeal was lodged in the United Kingdom by his solicitors against the refusal of asylum. They went to Colombo to interview and take statements from him. He told his solicitors that on his return he stayed with a family friend in Colombo because no trace had been found of his family. He did not go out unless escorted by a Sinhalese speaker who could deal with any trouble from the police. He had many difficulties because he did not have his identity card which had been lost by the Home Office immigration service. He did not try to find his family because he could not get through the many checkpoints. 56. The applicant was arrested without any identity card by the police on or around 10 March 1988, detained for four hours and questioned about his activities in Colombo. A family friend persuaded the police to release him. The atmosphere in Colombo for Tamils was very tense since they were subject to attack by Sinhalese. In May 1988 the applicant was again arrested by the police, detained overnight, beaten with belts and kicked for about half an hour. He was accused of hiding Tamil terrorists from the LTTE group. The family friend managed to bribe someone to obtain his release. The beating aggravated an ulcer condition that began when the applicant was in the United Kingdom. As a result he had to spend a week in hospital. 57. The applicant was further distressed to see a television report in which two of his relatives were shown to have been killed in crossfire between the LTTE and the IPKF several miles from his home village. 58. The applicant’s appeal in the United Kingdom was successful. The Adjudicator upheld his claims on 13 March 1989 (see paragraphs 71-72 below). He was subsequently allowed to return to the United Kingdom on 4 October 1989, where he was granted exceptional leave to remain initially for twelve months and thereafter until 22 March 1992. Shortly after his return he made a further application for asylum which is still under consideration. 59. The fifth applicant, Mr Vinnasithamby Rasalingam, born in 1961, comes from Manor Town which is in the north west of Sri Lanka about 90 miles from Jaffna. This town was constantly bombarded by the State’s military forces towards the end of 1986. Many Tamils were hiding in the jungle. His family home and shop were burnt down in 1985 by soldiers. He believed that two of his brothers had been shot dead by the army in 1986. He had already witnessed the army killing two people in 1985. At that time the applicant was hiding in the jungle for his safety. He was also shot at by soldiers passing through his town. Since 1983 problems have existed in the applicant’s area with the town’s Sinhalese majority. Many people have been killed and buildings destroyed. There had been rumours of massacres elsewhere. 60. An army camp was situated five miles from the applicant’s home. Young men were particularly at risk. If the military saw them they were liable to summary arrest, torture or even murder. People ran away when they saw soldiers coming, although by the time the applicant left Sri Lanka they were mostly confined to their camps. Nevertheless soldiers would search for people in convoys. The applicant’s area was controlled by Tamil separatists. His house was searched weekly by the army. He was not a member of any political group or terrorist organisation. 61. The applicant paid an agent 50,000 Sri Lankan rupees to help him leave Sri Lanka. He arrived at Heathrow Airport on 19 March 1987 and claimed asylum, although he had originally planned to go to Canada. Several pages had been removed from his passport. On 20 March he was interviewed in the Tamil language with the assistance of an interpreter. During this interview he described the events outlined above. 62. The applicant’s request for asylum was then referred to the Refugee Section of the Home Office. They concluded that he had not demonstrated a well-founded fear of persecution within the meaning of the 1951 Refugee Convention. Details of the case were referred to the Secretary of State, who reached a similar conclusion. In a letter dated 1 September 1987, the applicant was informed of the refusal of his asylum request in the following terms: "You have applied for asylum in the United Kingdom on the grounds that you have a well-founded fear of persecution in Sri Lanka for reasons of race, religion, nationality, membership of a particular group or political opinion. Sri Lanka has in recent years experienced considerable disorder which the Sri Lanka authorities have had to take measures to control. As a result of this disorder individuals of all ethnic groups have suffered. However the Secretary of State, having considered all the available evidence, does not consider that Tamils in Sri Lanka are a persecuted group who have a claim to refugee status under the 1951 UN Convention Relating to the Status of Refugees simply by virtue of their ethnic or national origins. Nevertheless the Secretary of State does consider individual applications for asylum made by Tamils from Sri Lanka to see whether they fall within the terms of the 1951 UN Convention. This depends on the circumstances in the individual case. In support of your application you said that it was impossible to live in Sri Lanka because Tamils are being persecuted. There was an army camp 5 miles from your village and villagers were always being chased away by troops. You said that your parents’ home was burnt down in 1985 together with the rest of your village and that you had been questioned and threatened by troops in February 1985 and your shop had been burnt down. You also said that two of your five brothers had been shot dead by troops. However the Secretary of State has also taken account of the fact that you lived safely in Sri Lanka for two years following the destruction of your parents’ home and your shop and that your parents have lived in a small house the other side of the forest from where they used to live and that you helped on your father’s land. Your parents, three other brothers and four sisters, some married with families of their own have, on the information which you have provided, continued to live safely in Sri Lanka to the present time. Having taken account of all the matters you have put forward in support of your application and of the other matters set out in this letter the Secretary of State is not satisfied that you have a well-founded fear of persecution in Sri Lanka within the terms of the 1951 UN Convention Relating to the Status of Refugees. As you do not otherwise qualify for entry under the Immigration Rules I therefore refuse you leave to enter." 63. Arrangements for the applicant’s removal to Sri Lanka were made for 4 September 1987. The applicant then instituted proceedings for judicial review in which he sought, unsuccessfully, to have the Secretary of State’s decision quashed (see paragraphs 67-69 below). 64. The applicant was returned to Sri Lanka on 12 February 1988. His reception at the airport was the same as that of the first applicant (see paragraph 15 above). 65. On returning to Sri Lanka he had difficulties because, like the fourth applicant, he had no identity card. It had been temporarily lost by the Home Office immigration service and was returned to him by post later. He obtained a forged card and managed to escape arrest during numerous police searches. His brother joined the LTTE and the applicant had money extorted out of him for their cause. He was suspected by the Sri Lankan and Indian authorities and is still being sought by them. In April 1988 he fled to France after learning that his father and brother had been detained by the IPKF. 66. Although his whereabouts were undisclosed for some time, the applicant kept in contact with his solicitors, who lodged an appeal in the United Kingdom on his behalf against the refusal of asylum. This appeal was successful. The Adjudicator upheld his claims on 13 March 1989 (see paragraphs 71-72 below). The applicant was subsequently allowed to return to the United Kingdom on 28 August 1989, where he was granted exceptional leave to remain initially for twelve months and thereafter until 22 March 1992. He made a further application for asylum in October 1989 which is still under consideration. 67. The first three applicants instituted proceedings before the High Court seeking leave to apply for judicial review of the Secretary of State’s refusal to grant asylum. Their applications were refused by a single judge on 21 August 1987. Further applications to a single judge in the Court of Appeal were also rejected on the same day. The Home Office refused to defer the removal of the first three applicants, scheduled for the next day, to enable applications to be made to a full Court of Appeal on Monday 24 August. Applications were then made to the Duty Judge of the High Court on the morning of 22 August (a Saturday) alleging that the Secretary of State’s refusal to defer removal unreasonably denied the first three applicants’ right to renew their applications to the Court of Appeal. The Duty Judge accepted the submission and issued an injunction against their removal. On 26 August 1987 the Court of Appeal granted the applicants leave to apply for judicial review of the Secretary of State’s decision. After the refusal by the Secretary of State of the fourth and fifth applicants’ application for asylum they too instituted proceedings for judicial review and were granted leave to apply. 68. All five applications were dismissed by the High Court on 24 September 1987 by Mr Justice McCowan. On appeal, however, the Court of Appeal quashed the decisions refusing asylum on 12 October 1987. The Secretary of State then appealed to the House of Lords which, on 11 December 1987, gave judgment in his favour (R. v. Secretary of State for the Home Department, ex parte Sivakumaran and conjoined appeals [1988] 1 All England Law Reports 193). 69. The applicants’ case before the House of Lords concerned the proper interpretation of Article 1 (A)(2) of the 1951 Refugee Convention as amended which defines a refugee as a person who has a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country ...". The House of Lords found that the test was an objective one and that there has to be demonstrated a reasonable degree of likelihood, or a real and substantial risk, that the person will be persecuted if returned to his own country. The evidence before the House of Lords confirmed that in reaching his decision not to grant asylum the Secretary of State had applied the test in the 1951 Refugee Convention. In the course of the judgment the following opinions were delivered: Lord Keith of Kinkel: "The terms of [the Secretary of State’s] decision letters make it clear that he has proceeded on the basis of the objective situation in Sri Lanka as understood by him. The affidavit of Mr Pott, an official of the Home Office, indicates that the Secretary of State took into account reports of the refugee unit of his department compiled from sources such as press articles, journals and Amnesty International publications, and also information supplied to him by the Foreign Office and as a result of recent visits to Sri Lanka by ministers. It is well known that for a considerable time Sri Lanka, or at least certain parts of that country, have been in a serious state of civil disorder, amounting at times to civil war. The authorities have taken steps to suppress the disorders and to locate and detain those responsible for them. These steps, together with the activities of the subversives, have naturally resulted in painful and distressing experiences for many persons innocently caught up in the troubles. As the troubles occurred principally in areas inhabited by Tamils, these are the people who have suffered most. The Secretary of State has in his decision letters expressed the view that army activities aimed at discovering and dealing with Tamil extremists do not constitute evidence of persecution of Tamils as such. This was not disputed by counsel for any of the applicants, nor was it seriously maintained that any sub-group of Tamils, such as young males in the north of the country, were being subjected to persecution for any Convention reason. It appears that the Secretary of State, while taking the view that neither Tamils generally nor any group of Tamils were being subjected to such persecution, also considered whether any individual applicant had been so subjected and decided that none of them had been. Consideration of what had happened in the past was material for the purpose of assessing the prospects for the future. It was argued that the Secretary of State’s decision letters did not clearly indicate that he had applied the ‘real and substantial risk’ test, but left it open that he might have applied a ‘more likely than not’ test. But there is clearly to be gathered from what the Secretary of State has said that in his judgment there existed no real risk of persecution for a Convention reason." Lord Templeman: "In order for a ‘fear’ of ‘persecution’ to be ‘well-founded’ there must exist a danger that if the claimant for refugee status is returned to his country of origin he will meet with persecution. The Convention does not enable the claimant to decide whether the danger of persecution exists. The Convention allows that decision to be taken by the country in which the claimant seeks asylum. Under the [Immigration] Act of 1971 applications for leave to enter the United Kingdom, including applications based on a claim to refugee status, are determined by the immigration authorities constituted by the Act. By the Rules made under the Act the appropriate authority to determine whether a claimant is a refugee is the Secretary of State. The task of the Secretary of State in the present proceedings was and is to determine in the case of each appellant whether the appellant will be in danger of persecution if he is sent back to Sri Lanka. Danger from persecution is obviously a matter of degree and judgment. The Secretary of State accepts that an appellant who fears persecution is entitled to asylum in this country unless the Secretary of State is satisfied that there is no real and substantial danger of persecution. The Secretary of State has concluded that there is no real and substantial danger of persecution ... In the present case an examination of the decision-making process does not disclose any error on the part of the Secretary of State or justify the court in contradicting his view that the applicants will not be in danger of persecution if they are returned to Sri-Lanka." Lord Goff of Chieveley: "First, I respectfully agree with my noble and learned friend Lord Keith, for the reasons given by him, that the requirement that the applicant’s fear must be ‘well founded’ means no more than that there has to be demonstrated a reasonable degree of likelihood of his persecution for a Convention reason; indeed, I understand the submission of counsel for the Secretary of State, that there must be a real and substantial risk of persecution, to be consistent with that interpretation. Second, it is not to be forgotten that the Secretary of State has in any event an overriding discretion to depart from the immigration rules and admit an applicant for refugee status if he considers it just to do so. Third, I am with all respect unable to agree with the view expressed by Sir John Donaldson MR that different tests are applicable under Art. 1 and Art. 33 of the Convention (see [1987] Weekly Law Reports (WLR) 1047 at 1051). Article 33 (1) provides as follows: ‘No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.’ Sir John Donaldson MR suggested that, even if the Secretary of State decides that an applicant is a refugee as defined in Art. 1, nevertheless he has then to decide whether Art. 33, which involves an objective test, prohibits a return of the applicant to the relevant country. I am unable to accept this approach. It is, I consider, plain, as indeed was reinforced in argument by counsel for the [United Nations High Commissioner for Refugees] with reference to the travaux préparatoires, that the non-refoulement provision in Art. 33 was intended to apply to all persons determined to be refugees under Art. 1 of the Convention. I cannot help feeling, however, that the consistency between Arts. 1 and 33 can be more easily accepted if the interpretation of well-founded fear in Art. 1 (A)(2) espoused by the Secretary of State is adopted rather than that contended for by the High Commissioner." 70. Following this decision the solicitors acting on behalf of all five applicants wrote to the Home Office indicating that they would be making further representations and that they would be applying to the European Commission of Human Rights seeking an indication under Rule 36 of its Rules of Procedure. They also sought the Home Office’s confirmation that no steps would be taken against their clients for seven days, which confirmation was given. The Commission refused the applicants’ request for an indication under Rule 36 on 18 December 1987. Representations that they should not be removed were also made by the British Refugee Council, UKIAS and a Member of Parliament at the request of the Tamil Action Committee U.K. The Secretary of State considered that asylum candidates who failed to qualify for refugee status should be returned to Sri Lanka unless there were strong compassionate circumstances in any particular case. In the applicants’ case he did not consider that such compassionate circumstances existed. 71. Following the applicants’ removal to Sri Lanka their solicitors lodged an appeal against the asylum refusals to an Adjudicator in the United Kingdom, pursuant to section 13 of the Immigration Act 1971. They filed voluminous documentary material concerning the past and present situation for Tamils in Sri Lanka. None of this material was challenged by the Secretary of State’s representatives and no other material upon which the latter based his decisions to refuse asylum was put before the Adjudicator. In a decision of 13 March 1989 the Adjudicator accepted the applicants’ claim that they had left Sri Lanka for fear that as young Tamils they were at risk of, inter alia, "interrogation, detention and even physical harm". He largely believed the accounts given by the applicants of their personal situations: - as regards the first applicant, the raid on the family business, the death of his cousin, his arrests and detention in 1986 and later, on his return to Sri Lanka, his interrogation by the police (but not his claim to membership of PLOTE); - as regards the second applicant, his family situation, the alleged detention and assault, destruction of his home and, on his return to Sri Lanka, his arrest and ill-treatment in Jaffna; - as regards the third applicant, his arrests, interrogations and death of his brother (but not his claim to membership of the LTTE); - as regards the fourth applicant, the destruction of his family home by shelling, the incidents he witnessed and, on his return to Sri Lanka, his detention several times due to his lack of an identity card; - as regards the fifth applicant, the arson of his home, the shooting dead of two of his brothers and, after his return to Sri Lanka, the arrest of his family and relatives. The Adjudicator also accepted that in general the victims of ill-treatment at the hands of Sri Lankan forces had been young male Tamils and that excessive force had been used against non-combatants in the North by both Sri Lankan armed forces and the IPKF afterwards. Finally he concluded that the applicants had had a well-founded fear of persecution and he held, inter alia, as follows: (1) that they were all entitled to asylum at the time of the Secretary of State’s decision; (2) that the circumstances since that time had not materially changed; (3) that the Secretary of State’s decisions in respect of all the applicants were not in accordance with the law; (4) that the applicants’ appeals were accordingly allowed; and (5) that they should be returned to the United Kingdom with the minimum of delay. 72. The Secretary of State’s appeal to the Immigration Appeal Tribunal was rejected on 19 April 1989 as being out of time, the fourteen day time-limit for lodging appeals having been missed due to an administrative error. On 12 May 1989 the Secretary of State applied for judicial review of the Tribunal and Adjudicator’s decisions. In particular he challenged the lawfulness or reasonableness of the directions that the applicants be returned to the United Kingdom. Leave for judicial review was granted by Mr Justice McCowan on 17 May 1989 and the case was heard on 11 July 1989 by Lord Justice Lloyd and Mr Justice Auld. The High Court upheld the decision of the Immigration Appeal Tribunal. On 31 July 1989 the Secretary of State applied for a stay of execution against the return of the five applicants pending a possible appeal against the refusal of judicial review. This application was rejected on 31 July 1989. On 17 May 1990 the Court of Appeal dismissed an appeal by the Secretary of State against the finding by Mr Justice Auld in the above proceedings that Mr Vilvarajah and Mr Skandarajah were entitled to raise their asylum claim on appeal to the Adjudicator notwithstanding the fact that they had first presented forged Malaysian passports and sought leave to enter as visitors (R v. Immigration Appeal Tribunal and Another, ex parte Secretary of State for the Home Department [1990] I Weekly Law Reports 1126). 73. Sri Lanka has a population of 16.1 million, of which 74% are Sinhalese and 18% are Tamil Hindus. The Tamils are concentrated in particular areas, and in the northern peninsula of Jaffna account for over 90% of the population. The history of the ethnic conflict between Tamils and Sinhalese goes back for generations, with Sinhalese, anti-Tamil chauvinism being a major factor in Sri Lankan politics since 1948. One result of the anti-Tamil sentiment in Sri Lanka has been a series of pogroms against Tamil communities, particularly since 1956, and which increased dramatically in 1983, triggered off by the killing of thirteen Sri Lankan soldiers by a Tamil liberation group. A state of emergency was proclaimed which is still in force. This resulted in considerable governmental violence against the Tamil community, including organised massacres tolerated, if not approved of, by the Government. 74. Following an Accord which was signed between Sri Lanka and India on 29 July 1987 the Indian Army entered Tamil areas with a view to protecting the Tamil community and the Sinhalese forces were to be returned to barracks. However, the IPKF became involved in fighting Tamil extremists who rejected the Accord. Incidents of arrest, arbitrary detention, torture and destruction were reported, especially in October and November 1987, with indiscriminate shelling and shooting in villages and towns in the north. There was a siege of Jaffna town during which it was estimated that some 2,000-5,000 civilians were killed by the IPKF with a high level of atrocities committed during the assault on the town and thereafter. Identity cards were indispensable for Tamils at this time, not only a Sri Lankan identity card, but also a card issued by the IPKF for anyone in the north, in order to avoid the risk of summary detention. 75. When the applicants were returned to Sri Lanka in February 1988 reports of civil disturbance were still rife. The respondent Government analysed the situation as follows: they accepted that there was widespread disruption and violence, particularly in the north and east of Sri Lanka, although large parts of the country remained quiet. The disturbances seem to have eased off in December 1987. Having regard to the July 1987 Accord they considered that the Sri Lankan and Indian Governments were firmly committed to the restoration of law and order, civil rights for all communities and the democratic election of regional representatives. They were also aware of the voluntary repatriation of a large number of Sri Lanka Tamils, mostly having taken refuge in India, under a scheme organised by the United Nations High Commissioner for Refugees ("UNHCR") in response to provisions in the Accord to this effect. 76. Under the UNHCR scheme which was begun in late December 1987, 2,746 Sri Lankans had been repatriated by 11 February 1988. By August 1988 the total number of Sri Lankans voluntarily repatriated under this scheme was more than 23,000. The UNHCR has estimated that a further 12,000 had made their own arrangements to return voluntarily to Sri Lanka by August 1988. Some Western European countries were also beginning to send Tamils back to Sri Lanka during the period August 1987 - February 1988 (e.g. the Netherlands and France). Other countries had a policy of not returning Tamil asylum-seekers at this time (e.g. Federal Republic of Germany and Italy). 77. In December 1987 Amnesty International, the British Refugee Council and the UNHCR each urged the respondent Government not to send any Tamils back to Sri Lanka in view of the instability at that time, the uncertain effect of the July Accord and reports of human rights violations by both the Sri Lankan security forces and the IPKF. 78. A report by the Asia Committee of the British Refugee Council dated 15 December 1987 noted that there was widespread devastation of property as well as food and health problems. Although the situation had slightly eased since the beginning of November 1987, the view was maintained that the whole of the majority Tamil areas was subject to guerilla attack, and counter-attack by the IPKF, and that little resembling normal life was possible. 79. The information available to the Secretary of State about the situation in Sri Lanka came from numerous sources, including reporting telegrams from the British High Commission in Colombo and advice from the Foreign and Commonwealth Office, information and documentary evidence from thousands of asylum applicants from Sri Lanka, frequent contact with representatives of UNHCR, press articles, journals and reports from organisations like Amnesty International directly concerned with the situation in Sri Lanka. The Foreign and Commonwealth Office also supplied information derived from diplomatic representatives about developments in Sri Lanka. 80. In addition, Mr Timothy Renton MP, Minister of State at the Home Office, visited Sri Lanka from 10-14 September 1987. He was accompanied by the most senior official in the Immigration and Nationality Department, who had overall responsibility for asylum policy as well as the Head of the South Asian Department in the Foreign and Commonwealth Office. In the course of his visit he met President Jayawardene and other government Ministers. He visited Jaffna and Trincomalee, meeting local officials, members of the Sri Lanka Armed Forces, citizens, committees and representatives of the LTTE. 81. Special provision is made for the position of refugees and for those seeking asylum in the United Kingdom in the "Statement of Changes in Immigration Rules", House of Commons paper 169 of 9 February 1983 ("the 1983 Rules"). Paragraph 16 of the Rules provides as follows: "Where a person is a refugee full account is to be taken of the provisions of the Convention and Protocol relating to the Status of Refugees (Cmnd. 9171 and Cmnd. 3096). Nothing in these Rules is to be construed as requiring action contrary to the United Kingdom’s obligations under these instruments." 82. An application for asylum can be made by a person either on arrival at a port in the United Kingdom or after entering the country. If the application is made on arrival, it is, by virtue of section 4(1) of the Immigration Act 1971 ("the 1971 Act"), dealt with by an immigration officer in accordance with paragraph 73 of the 1983 Rules, which reads as follows: "Special considerations arise where the only country to which a person could be removed is one to which he is unwilling to go owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Any case in which it appears to the immigration officer as a result of a claim or information given by the person seeking entry at a port that he might fall within the terms of this provision is to be referred to the Home Office for decision regardless of any grounds set out in any provision of these Rules which may appear to justify refusal of leave to enter. Leave to enter will not be refused if removal would be contrary to the provisions of the Convention and Protocol relating to the Status of Refugees." 83. In cases to which paragraph 73 of the 1983 Rules applies, an immigration officer at the port of entry will, with the aid, if necessary, of an interpreter, interview the passenger. Immigration officers are trained in asylum matters as part of their general training. A recent development has been the involvement of the United Nations High Commissioner for Refugees in this training. The matter is then, in pursuance of paragraph 73 of the Rules, referred to the specialist Refugee Section of the Home Office’s Immigration and Nationality Department. No decision on an asylum application is taken by an immigration officer at the port. 84. The specialist Refugee Section has a large staff, who are divided into geographical sections under four Senior Executive Officers responsible for the Middle East, the Far East, Africa and Eastern Europe/the Americas. There is also a Research Unit which collates and disseminates background information on specific countries. An application is considered initially by an Executive Officer in the appropriate geographical section. It is then assessed with a recommendation to a Higher Executive Officer. He or she may decide to grant asylum or exceptional leave to enter; a decision to refuse outright must be taken at at least Senior Executive level. Cases which are complex or about which an officer has particular doubts can be referred up to higher grade officers and, as in the applicants’ cases, to a Minister for decision. 85. These arrangements are subject to the referral arrangements with UKIAS described below (see paragraphs 94-95). Where in any case referred to UKIAS officials feel unable to grant an application following representations from UKIAS against refusal, the case will be referred to a Minister for decision and UKIAS will be informed of the issues to be put before the Minister. 86. If an application for asylum is refused before leave to enter the United Kingdom is given there is a right of appeal on the merits against that refusal under section 13 of the 1971 Act to the appellate authorities set up under Part II of that Act ("the appellate authorities"), but such right may in general only be exercised from outside the United Kingdom. However, the refusal of asylum can also be challenged in judicial review proceedings (see paragraphs 89-93 below). Appeals under section 13 in the first instance are to an Adjudicator, who is a single judge, appointed by the Lord Chancellor. From there appeals lie, usually with leave, to a three-person Immigration Appeal Tribunal. Members of the Tribunal are appointed by the Lord Chancellor and need not have legal qualifications, although a lawyer must preside at sittings. 87. By virtue of section 17 of the 1971 Act, where directions are given for a person’s removal from the United Kingdom on his being refused leave to enter, he may appeal to an Adjudicator against the directions on the ground that he ought to be removed (if at all) to a different country or territory. It is for the person concerned to find another country which will accept him. 88. The procedure for determining an appeal by an asylum seeker against a refusal of leave to enter is governed by the Immigration Appeals (Procedure) Rules 1984 (Statutory Instruments, 1984/2041). An appellant can be represented at the appeal by UKIAS which is funded by the Secretary of State under section 23 of the 1971 Act for the purpose of enabling it to give free advice and assistance to those with appeal rights under the Act. Alternatively, an appellant can be represented by solicitors. Provision is made in the 1984 Rules for the submission of an explanatory statement by the Government (rule 8); for the appellate authority to require the furnishing of particulars (rule 25); for the summoning of witnesses (rule 27); for each party to the appeal to be heard (rule 28); for the receiving of oral, written or other evidence (rule 29); and for the inspection of documentary evidence (rule 30). No provision is made in the Immigration Rules for an appellant to return to the United Kingdom to attend his appeal, but his representations may be submitted in writing or through his representative. The appellant may seek an expedited hearing from the appellate authorities. If the appeal is successful, the Adjudicator under section 19 of the 1971 Act, or the Tribunal under section 20 of that Act, shall make such directions for giving effect to the determination as is necessary. In the case of a successful appeal from abroad by an asylum seeker the direction may require the entry clearance officer to grant the necessary entry clearance to enable the appellant to return to the United Kingdom. Either party may appeal the Adjudicator’s determination to the Immigration Appeal Tribunal. In addition, the Tribunal’s determination can be challenged by judicial review and legal aid is available, if necessary, for this purpose. 89. The question whether an application for asylum in the United Kingdom should be granted is one for the determination of the Secretary of State, subject to the above-mentioned statutory right of appeal on the merits. The courts (as opposed to the appellate authorities under the 1971 Act) have no power to determine whether a person is a refugee. However, the decision of the Secretary of State is subject to judicial review and may be quashed on a variety of grounds. Leave to apply for judicial review may be obtained at short notice and legal aid may be available to any person regardless of nationality. 90. The courts will examine whether the Home Secretary has correctly interpreted the law in relation to the grant or refusal of asylum. If the courts are satisfied that he has made no error of law they may nevertheless review the refusal of asylum in the light of the "Wednesbury principles" (Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] I Kings Bench 223), namely, an examination of the exercise of discretion by the Secretary of State to determine whether he left out of account a factor that should have been taken into account or took into account a factor he should have ignored, or whether he came to a conclusion so unreasonable that no reasonable authority could have reached it. The applicants, on the other hand, contest the scope of judicial control of the merits of the Secretary of State’s decision (see paragraph 118 below). 91. The extent and effect of judicial review was demonstrated by the House of Lords in the Bugdaycay case (R v. Home Secretary, ex parte Bugdaycay and Others [1987] 1 All England Law Reports 940) when it was held that the Home Secretary had indeed failed to appreciate a factor which he should have specifically dealt with. Lord Bridge stated (at 945 and 952): " ... all questions of fact on which the discretionary decision whether to grant or withhold leave to enter or remain depends must necessarily be determined by the Immigration Officer or the Secretary of State ... The question whether an applicant for leave to enter or remain is or is not a refugee is only one, even if a particularly important one ... of a multiplicity of questions which immigration officers and officials of the Home Office acting for the Secretary of State must daily determine ... determination of such questions is only open to challenge in the courts on well-known Wednesbury principles ... there is no ground for treating the question raised by a claim to refugee status as an exception to this rule ... Within those limitations the court must, I think, be entitled to subject an administrative decision to the more rigorous examination to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual’s right to life and when an administrative decision under challenge is said to be one which may put the applicant’s life at risk, the basis of the decision must surely call for the most anxious scrutiny." Lord Templeman added (at page 956): "In my opinion where the result of a flawed decision may imperil life or liberty a special responsibility lies on the court in the examination of the decision making process." In that case, following a careful review of the evidence the House quashed the removal orders in regard to one of the applicants on the ground that relevant facts had not been taken into account. The Secretary of State’s refusal of asylum was also quashed by the courts following judicial review proceedings in R v. Secretary of State, ex parte Jeyakumaran (High Court decision of 28 June 1985), R v. Secretary of State, ex parte Yemoh (High Court decision of 14 July 1988), and Gaima v. Secretary of State ([1989] Immigration Appeals Reports). In the Jeyakumaran case the court reviewed the decision of the Secretary of State on "Wednesbury principles". In his judgment, Mr Justice Taylor said "I am ... disturbed by some of the factors which do seem to have been taken into account and others which have not. It is, therefore, necessary to look at the respondent’s evidence in some detail". He concluded that the Secretary of State’s rejection of the claim for asylum should be quashed on the ground that "in reaching his decision he took into account matters which ought not to have been taken into account and failed to take into account matters he should". A similar approach was adopted by the High Court in the Yemoh case. In the Gaima case it was more a matter of the fairness of the procedures followed in reaching the decision to refuse political asylum in that the Court of Appeal held that the applicant was given insufficient opportunity to give her explanation of the facts taken into account by the Secretary of State in assessing her credibility. In his judgment, with which the other two judges agreed, Lord Justice May stressed that "in these refugee asylum cases the court is entitled to, and should, subject administrative decisions to rigorous examination. The court should ensure that the decision- making process has been wholly fair throughout". 92. Although the Home Secretary has stated that there can be no expectation that asylum seekers will automatically be allowed to stay in the United Kingdom until proceedings are complete, the practice is that no applicant is removed once he has obtained leave to apply for judicial review. Moreover, in R v. Secretary of State for Education and Science, ex parte Avon County Council ([1991] 88 Local Government Reports 737) the Court of Appeal held that a judicial review court has power to order a stay even where such an order would have the effect of restraining the Crown. 93. If an application for leave to apply for judicial review is refused a renewed application can be made to the Court of Appeal. Even where, after a full hearing, an application for judicial review is dismissed the applicant can appeal on a point of law to the Court of Appeal as of right and, subsequently, to the House of Lords with the leave of the Court of Appeal or the House of Lords. 94. Since 1983 where an asylum seeker is otherwise unrepresented, his case may be referred to the Government subsidised United Kingdom Immigrants’ Advisory Service (UKIAS) for advice or other welfare services. In such cases the Home Office regards UKIAS as the agent of the UNHCR. 95. Since 1 September 1988 (i.e. after the applicants’ removal) no category of asylum seeker is automatically excluded from the referral system although the Home Secretary retains the right at all times not to refer a case. Where a person can be sent to a third country where he does not fear persecution, UKIAS will be telephoned to establish whether they wish to interview that person, in which case two days will be allowed for this to be done and representations made. Where an unrepresented person is likely to be sent back to a country where he claims to fear persecution, if the Home Office proposes to refuse the asylum application it will refer the case to UKIAS who will have one week (for those in detention) or four weeks (for those not detained) to make representations. The Secretary of State is obliged to consider and answer any representations made. The representations and the response to them may then be used as material against which the reasons and conclusions of the decisions taken may be tested on review, if asylum is refused. 96. Members of Parliament frequently make representations to the Minister about unsuccessful asylum seekers or other expulsion cases. The first guidelines on the subject were issued in 1986. Prior to March 1987 a mere telephone contact could stop a removal pending further representations being made. On 3 March 1987 the Home Secretary announced that Members of Parliament could no longer assume that "stops" would be accepted in all cases. Under revised guidelines for handling representations from Members which came into force on 3 January 1989 removal may be deferred for eight working days to enable representations to be made if new and compelling evidence has become available which has not already been taken into account. 97. The power to give or refuse leave to enter and to remain in the United Kingdom, in a case of a person not having refugee status under the 1951 Refugee Convention, is exercisable at the discretion of the Secretary of State. Accordingly, if a person entering the United Kingdom is found not to be entitled to have refugee status, but nevertheless alleges that if he is returned to his own country he runs a real risk of being subjected to treatment inconsistent with the provisions of Article 3 (art. 3) of the European Convention, the Secretary of State, in the exercise of his discretion, could decide that exceptional leave to enter should be given. This entitles an asylum seeker to remain in the United Kingdom for a period of twelve months in the first instance. In 1988 57.4% of decisions in asylum cases were to give exceptional leave, usually on humanitarian grounds, and in 25.4% of the cases the entitlement to refugee status was accepted. 17.2% were outright refusals. In 1988 304 Sri Lankans were given exceptional leave. | 0 |
dev | 001-80484 | ENG | BGR | CHAMBER | 2,007 | CASE OF STEFAN ILIEV v. BULGARIA | 3 | No substantive violation of Art. 3;Violation of Art. 3 on account of the lack of an effective investigation into the applicant's complaints;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Peer Lorenzen | 7. The applicant was seventy-two years old at the time of the events and had previously suffered from tuberculosis on at least three occasions. 8. On 19 December 1996 the applicant visited a café-bar where he drank and became intoxicated. On his way home, at around 6 p.m., he passed by the building of the Bulgarian national television (“BNT”), in front of which there was a demonstration. The applicant was carrying a beer bottle, which he either dropped or threw against the building of the BNT. He then went to a nearby café. 9. Two police officers, who were providing security in front of the BNT, approached the applicant in the café. When they saw that he was intoxicated they led him off to the security guards' duty room in the BNT. 10. In response to the applicant's request to be informed why he was being detained he was told that it was for disturbing the peace and for throwing objects at the building of the BNT in an attempt to break its windows. 11. The applicant was kept in the security guards' duty room of the BNT until 8 p.m. He was then taken to the First District Police Station (Първо районно управление на МВР) for questioning, but, in view of his intoxicated state, was transferred to the Sobering-up Centre of the Sofia Police. The applicant arrived there at around 9 p.m. and remained overnight. 12. The applicant was discharged at around 9 a.m. on the next day, 20 December 1996, into the custody of the police and was taken to the Investigative Division of the First District Police Station for questioning. 13. At 11:15 a.m. on 20 December 1996 the applicant was given a written reprimand by the police to refrain from disturbing the peace, to drink with caution and not to resist inspections by the police. The applicant refused to be served with the written reprimand. 14. The applicant contended, which the Government did not challenge, that he was released from the police station sometime in the afternoon on 20 December 1996. 15. The applicant submitted that when he was detained by the two police officers in front of the building of the BNT he may have showed some resistance as he believed he was being wrongly detained. He contended, however, which the Government did not challenge, that while he was being led to the security guards' duty room of the BNT the police officers repeatedly hit him with a truncheon on his hands, kicked him in his ankles and punched him in the back and in the area of his kidneys. The applicant maintained that his injuries were not treated nor tended to by a doctor while he was in detention. 16. In their subsequent statements before the Prosecutor's Office, the police officers stated that the applicant was somewhat aggressive when they tried to detain him, but that they did not use any special measures to subdue him. 17. After being released on 20 December 1996 the applicant was examined by a doctor and a special medical report for use in legal proceedings was prepared, the relevant part of which stated the following. “Preliminary data: The [patient] indicates that on 19.12.1996 at approximately 6 p.m. he was beaten by uniformed police officers. The examination established: On the back of the right hand in the area of the [bracelet] joint it is visible that a linear contusion of the skin exists of reddish-dark colour with a size of 5 cm by 2 cm. On the back of the wrist of the right hand another contusion can be seen with a size of 4 cm by 2 cm. On the back of the left hand in the area of the palm bone of the thumb there is a contusion and abrasion resulting from almost parallel scratches of reddish-dark colour protruding above the skin around them with a size of 3 cm by 2 cm. CONCLUSION The examination of [the patient] established: contusions and abrasions on the skin of both hands. These injuries resulted from blows by or against solid blunt objects or blunt-cornered objects, as well as from the tangential affects of such objects and [considering] their morphological characteristics [they] reasonably correspond and could have been sustained in the manner and at the time indicated by [the patient]. They caused him pain and suffering.” 18. In 1998 the applicant received treatment to ailments in his ankles and wrists. 19. On 13 January 1997 the applicant complained to the Chief Prosecutor's Office regarding the beating by the police officers on 19 December 1996 and of being detained. On an unspecified date, he was informed that his complaint was being forwarded to the Sofia's Regional Military Prosecutor's Office. 20. On 21 March 1997 the Sofia Regional Military Prosecutor's Office refused to open a preliminary investigation because of lack of evidence of an offence. It based its decision on the applicant's complaint to the authorities and on statements from the police officers who arrested him and the officer on duty at the sobering-up centre. The Prosecutor's Office considered the applicant's assertions to be unfounded and unsupported by any facts other than his complaints. The applicant appealed against the decision of the Prosecutor's Office on an unspecified date. 21. By decision of 17 December 1997 the Armed Forces Prosecutor's Office upheld the decision of the Sofia Regional Military Prosecutor's Office. It found that the facts of the case did not warrant the opening of a preliminary investigation. The decision of 17 December 1997 stated, inter alia, the following: “From the materials [contained] in the file it [can be] ascertained that [the complaint] relates to the forced detention in a sobering-up centre of the applicant [following] a disturbance of public order [while] in an intoxicated state. The inquiries performed do not indicate that any unlawful actions [were performed] by the police. The collected data show that there was in fact a disturbance of public order – breaking of bottles, throwing objects at the building of the [Bulgarian national] television, etc. In such case quite rightly [the Sofia Regional Military Prosecutor's Office] refused to open a preliminary investigation.” 22. It is unclear whether a copy of the decision of the Armed Forces Prosecutor's Office was ever sent to the applicant. 23. On 30 December 1997 the applicant filed a complaint with the Chief Prosecutor's Office claiming that he had not received a response to his previous complaints. 24. On an undetermined date a prosecutor from the Armed Forces Prosecutor's Office responded, in the form of a resolution, which stated, inter alia, the following: “On 30 December 1997 a complaint was filed by [the applicant], who was not satisfied with the decision of the prosecutors from the Armed Forces Prosecutor's Office and the Sofia Regional Military Prosecutor's Office. I reject the complaint of [the applicant] because the Armed Forces Prosecutor's Office has already ruled on the matter and there is no necessity for it to change its position [expressed] in the decision of 17 December 1997.” 25. The Government contended that a copy of the above resolution was sent to the applicant on 14 January 1998. The applicant maintained, however, that he never received it and that he only became aware of the decisions of the Prosecutor's Office not to open a preliminary investigation on 21 November 1998. A note to that effect was inscribed in the applicant's handwriting on the copies of the decisions he provided to the Court. 26. Section 40 (1) of the National Police Act, as in force at the relevant time, provided, as relevant: “... [P]olice [officers] may use ... force ... when performing their duties only if they [have no alternative course of action] in cases of: 1. resistance or refusal [by a person] to obey a lawful order; 2. arrest of an offender who does not obey or resists a police [officer]; ... 5. attack against citizens or police [officers]; ...” 27. Section 41 (2) provided that the use of force had to be proportionate to, in particular, the specific circumstances and the personality of the offender. 28. Section 41(3) imposed upon police officers the duty to “protect, if possible, the health ... of persons against whom [force was being used]”. 29. Articles 128, 129 and 130 of the Criminal Code make it an offence to cause a light, intermediate or severe bodily injury to another individual. 30. Article 131 § 1 (2) of the Criminal Code provides that if the injury is caused by a police officer in the course of or in connection with the performance of his or her duties, the offence is an aggravated one. This offence is a publicly prosecutable one (Article 161 of the Criminal Code). 31. Under the Code of Criminal Procedure (1974), as in force at the relevant time, preliminary investigations for publicly prosecutable offences could be opened only by a decision of a prosecutor or an investigator (Article 192). 32. The prosecutor or the investigator must open a preliminary investigation whenever he or she receives information, supported by sufficient evidence, that an offence might have been committed (Articles 187 and 190 of the Code of Criminal Procedure). 33. During the relevant period, the Code of Criminal Procedure provided that if the information provided to the authorities was not sufficiently supported by evidence, the latter had to conduct a preliminary inquiry (verification) in order to determine whether the opening of a preliminary investigation was warranted (Article 191). | 1 |
dev | 001-104882 | ENG | LTU | ADMISSIBILITY | 2,011 | CESNULEVICIUS v. LITHUANIA | 4 | Inadmissible | András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Paulo Pinto De Albuquerque | The applicant, Mr Virginijus Česnulevicius, is a Lithuanian national who was born in 1956 and lives in Vilnius. In 1990, after the Republic of Lithuania had re-established independence, the applicant and J.U. started working at the Department of National Defence (Krašto apsaugos departamentas). On the evening of 12 January 1991 the Soviet army launched military operations against Lithuania. Soviet troops entered the television tower of Vilnius and the headquarters of Lithuanian public television, and also tried to take the Lithuanian parliament. Massive crowds of Lithuanian citizens came to the rescue of the institutions of the newly independent Lithuania. Thirteen Lithuanian civilians were killed and hundreds injured during the clash with the Soviet army (see Ždanoka v. Latvia [GC], no. 58278/00, § 20, ECHR 2006IV). At the time of the events, the applicant and J.U. were on the premises of the Lithuanian parliament building, where they worked as guards. In 2004 a publishing house released a book by J.U. According to the applicant, it contained false and defamatory information about him. On 12 July 2004 the applicant addressed the publishing house requesting the opportunity to respond critically to the content of the book. In his letter to the publisher the applicant described J.U. negatively and criticised J.U.’s actions during the events of January 1991. The applicant’s letter contained allegations that J.U. had deserted his post at the barricades of the Parliament building and that he had not passed the psychiatric check for permission to carry a gun. Following these events, on 2 March 2005 J.U. brought a private prosecution against the applicant for defamation. The applicant made a counterclaim, alleging that J.U. had defamed him in his private prosecution statement. The applicant states that during the initial examination of the case by the Vilnius City First District Court he was undergoing medical treatment. He asked for a longer break before the later hearings, for health reasons. The applicant states that the judge suggested that he did not have to be present at the final two hearings of his case, at which J.U. was due to give his final submissions and judgment would be adopted. The applicant admits that no request for a longer break was noted in the official hearing record. Although the applicant then informed the court that he would not be present at the two final hearings, they were not postponed. On 5 December 2005 the Vilnius City First District Court found the applicant guilty of defamation, given that his statements that “J.U. had deserted his post during the tragic events of January 1991” and “J.U. had not passed the psychiatric check for permission to carry a gun” had not been proved. The applicant was fined 1,250 Lithuanian litai (LTL, 362 euros (EUR)) and ordered to pay compensation for non-pecuniary damage in the sum of LTL 1,000 (EUR 290). The court terminated the proceedings in so far as the counterclaim by the applicant was concerned. J.U. and his lawyer, as well as the applicant, were present at the hearing. In finding the applicant guilty, the court noted that the applicant had failed to submit credible evidence in support of his statement that J.U. had deserted his post. In this connection the court noted that in an official document J.U.’s superior had given a positive evaluation of J.U.’s behaviour during the events of January 1991. The submissions of one independent witness, J.G., questioned in the courtroom, were also taken into account. The court further established that the statement that J.U. had not passed the psychiatric check for permission to carry a firearm was false, given that the medical records showed that he had passed the examination in respect of his mental health. The applicant states that he saw the record of the hearing of 5 December 2005 only on 8 December 2005, at approximately 3 p.m. The applicant appealed, mainly arguing that the trial court had distorted the testimony of J.G., had misunderstood the circumstances surrounding the events of January 1991, and assessed the evidence and applied domestic law wrongly. On 11 April 2006 the Vilnius Regional Court upheld the applicant’s conviction. In the appellate proceedings the applicant was represented by a lawyer. As the transcript of the hearing on appeal shows, the court deemed it unnecessary to question witness J.G., who had testified before the trial court, again, but granted the applicant’s request to add written evidence to the file and to question two more witnesses, J.Ž. and G.G. One more witness, A.Z., was questioned at the request of J.U. The Vilnius Regional Court dismissed the applicant’s argument that the official transcript of the hearing was inaccurate, finding that the applicant had had the right to comment on the record of the hearing within three days of its signing by the judge, if he believed there were mistakes or inconsistencies. However, he had not made use of this right. The court reviewed the findings of the lower court and decided that the latter had assessed the evidence correctly and reached reasoned conclusions. The appellate court also emphasised that J.G., who had testified before the trial court at the request of the applicant, could not unambiguously confirm the fact that J.U. had left his post at the barricades in January 1991. Another witness, A.Z., had testified that J.U. had not deserted his post. The appellate court also noted that written evidence - a report by J.U.’s superior - stated that during the events of January 1991 J.U. was “holding firm”. Lastly, the court observed that the lower court had correctly concluded that the assertion that J.U. had not passed the psychiatric check was a pejorative allusion to his mental health, and thus was damaging to his reputation. No procedural violations were found. This decision was final, as there is no right to appeal on points of law under the domestic law in private prosecution cases. Subsequently, the applicant unsuccessfully tried to reopen the proceedings, alleging that the courts were unfair. His requests were dismissed by the public prosecutor and the Vilnius City Second District Court as unsubstantiated; they found no procedural irregularities when handling the applicant’s case at both levels of jurisdiction. Articles 57-29 of the Code of Criminal Procedure provide that a participant in the criminal proceedings may raise an objection on the grounds of partiality of a judge. Article 261 §§ 4-8 of the Code of Criminal Procedure provides that a transcript of a hearing must be prepared and signed by the judge who heard the case and the recording officer of the hearing no later than three days after the hearing took place. The participants in the proceedings have the right to acquaint themselves with the transcript within three days of its signing. Any objections as to the accuracy of the transcript must be put to the judge who heard the case. If the judge agrees with the objections, he or she adds them to the transcript of the hearing. Should the judge deem that the original transcript was accurate, he may dismiss the participant’s objections by adopting a ruling in a new hearing. Article 367 § 3 of the Code of Criminal Procedure provides that an appeal on points of law may not be lodged in cases of private prosecution. | 0 |
dev | 001-105269 | ENG | ROU | CHAMBER | 2,011 | CASE OF GIURAN v. ROMANIA | 1 | Remainder inadmissible;No violation of Art. 6-1;No violation of P1-1 | Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria | 6. The applicant was born in 1930 and lives in Slatina. He is retired. 7. On 7 August 2001 he lodged a criminal complaint against E.I., claiming that she had stolen certain items from his flat. He stated that E.I. regularly came to his flat to clean it and that on 20 January 2001 she had removed several items of jewellery and clothing from his flat. He had only realised in July 2001 that those items had disappeared from his flat. 8. The case was heard by the Drăgăşani District Court, which delivered its first-instance judgment on 14 January 2002 finding E.I. guilty and sentencing her to three months’ imprisonment, suspended. E.I. was ordered to pay the applicant damages of 10,000,000 Romanian lei (ROL – approximately 350 euros (EUR) at the time), representing the estimated value of the stolen items, and ROL 2,500,000 (approximately EUR 90) in legal fees. The District Court based its decision on the statements of the parties and of two witnesses. According to one of the witnesses, the applicant had complained to him in July 2001 that several items were missing from his flat. According to the second witness, in February 2001 the defendant had shown him several items of jewellery and clothing, mentioning that she had received them as a gift from the applicant. 9. On 1 April 2002 the Vâlcea County Court dismissed an appeal by E.I. and the judgment of 14 January 2002 thus became final and enforceable. 10. On an unspecified date the Prosecutor General of Romania lodged an extraordinary appeal (recurs in anulare) against the judgment of 14 January 2002. The Prosecutor General argued that E.I. had been wrongfully convicted, as none of the evidence adduced was conclusive as to her guilt. This had led to a breach of her right to be presumed innocent until proved guilty. The prosecutor also indicated that E.I. had submitted two pieces of evidence as part of her defence which had been ignored in the ordinary proceedings. One of the documents was a request lodged by the applicant to the owners’ association in which he sought an exemption from utility costs for the period December 2000-April 2001, when he would be away in the United Kingdom. This document was relevant, as the applicant stated that E.I. entered his flat only when he was there and he had declared that the items had been stolen on the exact date of 20 January 2001, when, according to that document, he was not in Romania. The second document was a report of a search conducted by the police at the home of the defendant, which indicated that none of the items claimed to have been stolen from the applicant’s flat had been found there. 11. In a decision of 4 November 2003 the High Court of Cassation and Justice allowed the extraordinary appeal, quashed the judgments of 14 January and 1 April 2002, acquitted E.I. and relieved her of the obligation to pay the applicant compensation for the stolen items and the legal costs. The court held that the prior conviction had been based on the statements of two witnesses who declared that they knew that E.I. was doing housework for the applicant, that he owned the items mentioned in his criminal complaint and that after 20 January 2001 some of the items were seen by one of the witnesses in the house of E.I. Nevertheless, the court indicated that these statements were contradicted by the evidence in the case file indicating that the applicant had been away from Romania between December 2000 and April 2001. Furthermore, taking into account that he had always stated that E.I. only did housework in his flat when he was there, the court indicated that his submission that he had not noticed E.I. leaving the flat with so many items was not credible. The court further concluded that the evidence adduced in the case was both contradictory and inconclusive in respect of the date the alleged theft was committed and of whether the defendant had committed the theft. It therefore quashed the earlier decisions on the ground that they had not been lawful and acquitted E.I. of all charges, relieving her also of the obligation to pay compensation for the stolen items and for the court costs incurred by the applicant. 12. The applicant attended the hearing and submitted his arguments in support of his claims. 13. For a summary of the relevant domestic-law provisions concerning this type of extraordinary appeal (recurs in anulare) see the judgment in the case of Precup v. Romania (no. 17771/03, § 15, 27 January 2009). | 0 |
dev | 001-87242 | ENG | RUS | CHAMBER | 2,008 | CASE OF PETUKHOV v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property | Anatoly Kovler;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych;Zdravka Kalaydjieva | 4. The applicant was born in 1949 and lives in Kirov. 5. In August 1997 the applicant was mistreated by the police. He brought two civil actions against them. 6. On 29 March 2000 and 9 January 2001 the Oktyabrskiy District Court of Kirov held for the applicant and awarded him compensation. It appears that both judgments became binding ten days after their pronouncement. The judgment of 29 March 2000 was not enforced, because the Ministry of Finance had lost the writ of enforcement. The judgment of 9 January 2001 was enforced on 5 June 2006. 7. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within two months. Under section 242.2.6 of the Budget Code of 31 July 1998, the Ministry of Finance must enforce a judgment within three months. | 1 |
dev | 001-59616 | ENG | HRV | CHAMBER | 2,001 | CASE OF HORVAT v. CROATIA | 1 | Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award | Georg Ress | 7. On 19 October 1992 the applicant lent to MJB, a company in Zagreb, 10,000 German marks (DEM) for a period of three months at a rate of interest of 27%. On 23 November 1992 she lent to ZIP, a company in Zagreb, DEM 20,390 for a period of one month at a rate of interest of 20%. 8. As the said companies failed to repay the loans, the applicant instituted proceedings against ZIP and MJB in the Zagreb Municipal Court (Općinski sud u Zagrebu). 9. The proceedings against ZIP and its alleged owner Ž.M. commenced on 29 March 1995 when the applicant, together with thirty-nine other plaintiffs, filed an action for repayment of their loans. 10. On 17 May 1995 the court asked the applicant’s counsel to provide the address of the second defendant. On 23 May 1995 the applicant’s counsel submitted the address concerned. 11. A hearing was scheduled for 4 October 1995 but it was adjourned since the defendants failed to appear. It turned out that the defendants had not received notice of the date of the hearing as the address indicated was incorrect. The court asked the applicant’s counsel to submit the defendants’ correct address within thirty days. 12. The next hearing was scheduled for 24 January 1996. However, it appears that in the meantime ZIP had ceased to exist and, as Ž.M.’s address remained unknown, the court ordered the applicant’s counsel to request the Social Welfare Centre (Centar za socijalnu skrb) to appoint a legal representative for Ž.M. 13. On 20 June 1996 the applicant’s counsel informed the court that the Zagreb Social Welfare Centre had, by its decision of 11 March 1996, appointed a legal representative for Ž.M. 14. On 13 September 1996 the court asked the applicant’s counsel to submit within thirty days a certificate from the registry of the Zagreb Commercial Court (Trgovački sud u Zagrebu) concerning the legal status of ZIP. 15. The next hearing, scheduled for 2 December 1999, was also adjourned due to the absence of the defendants. It turned out again that ZIP and Ž.M. had not received notice of the hearing date as the address indicated was incorrect. The court invited the applicant’s counsel to inform it within thirty days whether ZIP had in fact ceased to exist. 16. According to the Government, during the next hearing on 7 June 2000, the court decided upon the parties’ application to return the proceedings to the status quo ante (zahtjev za povrat u prijašnje stanje). Due to the absence of ZIP the hearing was adjourned to 17 October 2000. It appears that the proceedings are still pending before the Zagreb Municipal Court. 17. The proceedings against MJB and its alleged owner B.J. commenced on 30 March 1995 when the applicant, together with thirty other plaintiffs, filed an action for repayment of their loans with the Zagreb Municipal Court. 18. The court asked the applicant’s counsel to provide the address of B.J. On 25 August 1995 the applicant’s counsel informed the court of B.J.’s address. 19. The hearing scheduled for 2 October 1995 was adjourned due to the absence of the defendants. It turned out that MJB was no longer at its previous address and that B.J. was in detention on remand. The applicant’s counsel informed the court that B.J. had been released from detention and requested that the notices for the next hearing be sent to the defendants at the same addresses as before. 20. The hearing on 27 November 1995 was again adjourned due to the defendants’ absence. It appears that MJB had in the meantime ceased to exist and that B.J. had changed her address. The court invited the applicant’s counsel to inform it within thirty days whether MJB had in fact ceased to exist and of the correct address of B.J. 21. On 7 December 1995 the applicant’s counsel informed the court of the defendants’ addresses. 22. The next hearing, on 14 February 1996, was also adjourned due to the defendants’ absence for the same reasons as before, that is that MJB had ceased to exist and that B.J. had changed address. The court decided to look into the criminal case file no. KO-1574/93 in the same court, where criminal proceedings had been instituted against B.J., in order to obtain her proper address. Through that the court found her address. 23. By order of 11 September 1996 the applicant’s counsel was requested to furnish the court with a certificate from the registry of the Zagreb Commercial Court regarding the legal status of MJB. 24. On 20 September 1996 the applicant’s counsel submitted the requested document. 25. The next hearing, scheduled for 7 November 1997, was adjourned due to the defendants’ absence. The documents indicate that they had not received the notice of the hearing date. 26. The next hearing, scheduled for 26 January 1998, was adjourned for the same reason. The court invited the applicant’s counsel to submit B.J.’s correct address within sixty days. 27. On 6 February 1998 the applicant’s counsel informed the court that in the police registry B.J.’s address was the same as before. He proposed that a legal representative be appointed for B.J. 28. On 13 February 1998 the court ordered the applicant’s counsel to request the Social Welfare Centre to appoint a legal representative for B.J. 29. On 2 April 1998 the applicant’s counsel informed the court that the Zagreb Social Welfare Centre had, by its decision of 26 March 1998, appointed a legal representative for B.J. 30. According to the Government, during the next hearing, on 2 July 1998, the court issued a default judgment (presuda zbog izostanka) against B.J. The available documents show that MJB had ceased to exist. 31. On 22 July 1998 the court sent a letter to the Zagreb Commercial Court asking for a certificate regarding the legal status of MJB. On 24 September 1998 the court received a letter from the Zagreb Commercial Court with a certificate that wrongly contained information about another firm, instead of MJB. 32. On 13 April 2000 the court again sent a letter to the Zagreb Commercial Court asking whether MJB still existed. On the same day the court also requested the applicant’s counsel to submit the same information. It appears that the case is still pending before the Zagreb Municipal Court. 33. The relevant part of the Constitutional Act on the Constitutional Court (“the Constitutional Court Act” – Ustavni zakon o Ustavnom sudu), which came into force on 24 September 1999, reads as follows: “The Constitutional Court may, exceptionally, examine a constitutional complaint prior to exhaustion of other available remedies, if it is satisfied that a contested act, or failure to act within a reasonable time, grossly violates a party’s constitutional rights and freedoms and that, if it does not act, a party will risk serious and irreparable consequences.” | 1 |
dev | 001-61309 | ENG | DNK | CHAMBER | 2,003 | CASE OF VASILEVA v. DENMARK | 3 | Violation of Art. 5-1;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses (Convention proceedings) - claim dismissed | Christos Rozakis | 7. On 11 August 1995 on a public bus in the city of Århus the applicant, born in 1928, had a dispute with a ticket inspector, who accused her of having travelled without a valid ticket. When he was about to issue a penalty fare she refused to disclose her identity and the police were consequently called. They requested that the applicant give her name and address, and since she refused, she was arrested at 9.30 p.m. in accordance with section 755, subsection 1, cf. section 750 of the Administration of Justice Act (Retsplejeloven) and brought to the police station. 8. From the police reports it appears that the police estimated that the applicant was approximately sixty years old. Having been deprived of her personal belongings, she was put in a waiting room at 9.45 p.m. and after a visit to the toilet at 11.00 p.m. she was moved to a detention cell. On 12 August 1995 at 10.45 a.m. the applicant revealed her identity and she was released at 11.00 a.m. 9. Immediately after her release, the applicant collapsed and was hospitalised for three days diagnosed with high blood pressure. 10. The charge with the offence of refusing to reveal her identity was not followed up by an indictment. The outcome of the applicant's dispute with the bus company is unknown. 11. On 16 August 1995 the applicant complained about the detention to the Chief Constable of Århus (Politimesteren i Århus). In a letter of 14 September 1995 the Chief Constable provided his comments on the course of event, stating inter alia that the applicant had not been in possession of any papers which could have revealed her identity, that she appeared hysterical and refused to reveal her identity and that in the light thereof for security reasons she was placed in a detention cell. Furthermore, the Chief Constable noted that during the detention the applicant was regularly attended to and called upon through the intercommunication system but that each approach was met with screaming and continuing refusal to reveal her identity, 12. On 14 June 1996 the applicant claimed compensation for having been detained. The Chief Constable decided on the matter on 18 July 1996, and in so far as relevant his letter of the same day to the applicant reads as follows: “In connection with your previous complaint ... you received a ... letter of 14 September 1995 from Chief Superintendent HJH. [My] reply to your complaint... will not differ essentially from the content of [that letter]. However, in view of your relatively advanced age I find reason to regret that you were not, as promised, attended to by a doctor in connection with your stay in the detention cell. In general, I find the fact that you were taken to the police station, that you were placed in the detention cell, and that the length of your stay in the detention cell from 11.00 p.m. until your release the following day at 11.00 a.m., totalling 12 hours can be ascribed substantially to your conduct and unwillingness to assist in replying to the question on which the police needed clarification. This decision can be appealed against to the Ministry of Justice... The claim for compensation made by you as regards the deprivation of liberty will be decided by the Regional State Prosecutor, who has received a copy of this letter”. 13. The applicant did not appeal to the Ministry of Justice against the Chief Constable's decision, but on 31 July 1996 she complained against the decision to the Regional State Prosecutor in Viborg (Statsadvokaten i Viborg), who refused to grant her compensation on 6 February 1997. 14. In accordance with section 1018 e of the Administration of Justice Act on 5 and 12 March 1997 the applicant appealed to the Prosecutor General, who upheld the decision on 25 November 1997. 15. Thereafter, pursuant to section 1018 a of the Administration of Justice Act the applicant brought her claim for compensation before the City Court of Århus (Retten i Århus). The prosecution maintained that the applicant's behaviour necessitated the arrest and the length of the detention. A court session was held on 26 June 1998, in which the applicant, represented by counsel, explained inter alia that she had refused to give her name to the ticket inspector partly because she was angry, partly because he already knew her. She alleged that the police did not question her or talk to her during the arrest, during the transportation to the police station, or after the arrival to the station. She had handed over various belongings among those, she believed, various letters from public authorities bearing her name. Four police officers were heard as witnesses on 17 September 1998. The two police officers who made the arrest explained inter alia that the applicant twice had refused to give her name and address on their request, once after they had warned her that she would be arrested did she not state the data required. It had been difficult to get in touch with the applicant, who screamed and appeared hysterical. At the police station she was brought before the officer on duty and again she refused to reveal her identity. She had not been in possession of any identification. The officer who had been on duty on 11 August 1995 explained among other things that after repeated attempts to obtain the applicant's name and date of birth, he gave up and the applicant was thereafter placed in a waiting room, whereto he went at least once without success to ask her to disclose her personal data before he was off duty at 11 p.m. The officer who had been on duty on 12 August 1995 as from 6.30 a.m. stated inter alia that several times during the morning he send a colleague down to try to get the requested data from the applicant, but they only succeeded around 10.45 a.m., whereupon she was released. A note of 9 July 1996 from the Chief of Police in Århus was submitted, of which it appeared that the applicant's case had been thoroughly talked over with the group of duty officers. It had been discussed in particular that the applicant had not been attended to by a doctor in connection with her placement in the detention cell, that she had been detained for many hours, and that no documentation existed to substantiate which steps had been taken during the evening, the night and the early morning hours in order to gain knowledge of the applicant's identity. The duty officers were ordered, in the future, to appoint at the commencement of every duty period one among them to be responsible for the detainees. 16. By judgment of 25 September 1998 the City Court decided as follows: “As the [applicant] did not disclose her name and address to the two [named] police officers, she infringed section 750 of the Administration of Justice Act, which authorises the imposition of a fine. Thus, pursuant to section 755, subsection 1 of the Administration of Justice Act the [applicant] could be arrested. Also, when brought to the police station immediately after the arrest [the applicant] refused to reveal her name and address and consequently, she was put in a waiting room. It is unknown, which efforts were taken to identify [the applicant] in the period between 11.00 p.m. and 06.30 a.m. during which, the sixty-seven year old [applicant] was placed in the detention cell at least for some time, and during which according to the information available she was denied medical treatment. Having regard to the fact that [the applicant] was detained for breaching section 750 of the Administration of Justice Act, the police officers on duty were under an obligation continuously to make attempts to establish her identity, and to secure that the detention did not exceed a period proportionate to the cause of the detention cf. the principles set out in section 760, subsection 1 and section 755, subsection 4 of the Administration of Justice Act. Under these circumstances, the court finds that there was no reason to extend the detention until the following day 11.00 a.m. Accordingly, [the applicant] is entitled to compensation in the amount of DKK 2,200 pursuant to section 1018 a, subsection 1 of the Administration of Justice Act.” 17. The prosecution appealed against the judgment to the High Court of Western Denmark (Vestre Landsret), before which the applicant amended slightly her statement given before the City Court in that she admitted that the police had asked her before and after the arrest to provide them with her personal data, but that she had refused because she had been angry. Two of the police officers who were heard as witnesses before the City Court repeated their testimonies. 18. On 11 February 1999 the High Court gave judgment against the applicant stating as follows: “Having breached section 750 of the Administration of Justice Act [the applicant] could be arrested pursuant to section 755, subsection 1 of the Administration of Justice Act. During the arrest, and the subsequent detention [the applicant] was requested continuously to reveal her name and address, which she refused. Furthermore, she did not possess any identity papers, which could have enabled the police to determine her name and address. Finally, [the applicant] was released as soon as she revealed her name and address. Under these circumstances, there is no basis for granting [the applicant] compensation pursuant to section 1018 a, subsection 1 of the administration of Justice Act. Moreover, as no circumstances has been established, which could provide a basis for granting compensation pursuant to section 1018 a, subsection 2, [the court finds for the prosecution.]” 19. The applicant's request of 24 February 1999 for leave to appeal to the Supreme Court (Højesteret) was refused by the Leave to Appeal Board (Procesbevillingsnævnet) on 25 May 1999. 20. The relevant provisions of the Administration of Justice Act reads as follows: Section 101, subsection 2: “The Regional State Prosecutors shall supervise the Chief Constables' conduct as to criminal trials, and hear appeals against decisions made by the Chief Constables as to instigation of criminal proceedings. Decisions by the Regional State Prosecutors cannot be appealed against to the Prosecutor General or to the Ministry of Justice... “ Section 109, subsection 1: “The Minister of Justice is the chief superior of the police and exercises his powers through the National Commissioner of Police, the Commissioner of the Copenhagen Police and the Chief Constables” Section 750: “... Every person has a duty to disclose his name, address and date of birth to the police upon request. Failure to do so is punishable with a fine.” Section 755: 1. “The police may arrest any person who is reasonably suspected of a criminal offence subject to public prosecution, if arrest must be deemed necessary to prevent further criminal offences, to secure the person's presence for the time being or to prevent his association with others. ... 4. “No arrest may be made if, in the nature of the case or the circumstances in general, deprivation of liberty would be a disproportionate measure.” Section 758 1. “An arrest must be carried out as leniently as the circumstances permit. In compliance with section 792 e, the police may search and examine the person affected and his clothes with a view to depriving him of belongings which can be used for violent behaviour or for his absconding, or which may cause danger to the person affected or to others. The police may temporarily seize such belongings and money that are found in the person's possession. Otherwise, during an arrest the person affected is not subject to any limitations of his personal liberty other than those necessitated for the purpose of the arrest and for the prevention of disorder. 2. The police shall as soon as possible inform the person being arrested of the charge against him and the time of his arrest. It must appear from the police report that this rule have been observed” Section 760, subsection 1: “Any person who is arrested must be released as soon as the basis for the arrest ceases to exists.” Section 1018 a: “1. Any person who has been arrested or held in custody as part of a criminal prosecution is entitled to compensation for the damage suffered thereby if the charges are withdrawn or the accused is acquitted ... 2. Even if the conditions for granting compensation under subsection 1 are not satisfied, compensation may be granted if the deprivation of liberty cannot be considered proportionate to the outcome of the prosecution, or if it is found unreasonable for other particular grounds. 3. The compensation may be reduced or refused, if the person charged has given rise to the measures himself.” | 1 |
dev | 001-82040 | ENG | TUR | CHAMBER | 2,007 | CASE OF HASAN GENC v. TURKEY | 4 | Violation of Art. 6-1 | null | 4. The applicant was born in 1944 and lives in Istanbul. 5. On 22 March 1994 the applicant was granted a lease by the Istanbul Municipality to run a car park on a plot of land by the coast in the Kadıköy district of Istanbul. 6. On 14 and 27 July 1999 and 24 March 2000 the National Estate Directorate attached to the Istanbul Revenue Office issued three orders requesting the applicant to pay compensation for occupying the car park between 1 March 1998 and 31 December 1999. 7. On 11 August 1999, 29 September 1999 and 14 April 2000 respectively the applicant filed three separate cases with the Istanbul Administrative Court against the Istanbul Revenue Office, requesting that the orders be annulled. The first case concerned the period between 1 March and 31 December 1998, the second case concerned the period between 1 January and 1 August 1999 and the third case concerned the period between 1 August and 31 December 1999. 8. On 25 May 2000 the Istanbul Administrative Court annulled the orders dated 14 July 1999 and 27 July 1999. The administrative authority appealed. Subsequently on 17 December 2004 the Supreme Administrative Court quashed the respective judgments of the Istanbul Administrative Court. 9. On 24 June 2005 the Istanbul Administrative Court followed the reasoning set out in the Supreme Administrative Court's decision and dismissed the cases. The applicant appealed. 10. On 13 March 2006 the Supreme Administrative Court quashed the respective judgments of the Istanbul Administrative Court once again. 11. On 13 November 2006 the Istanbul Administrative Court decided to annul the respective compensation orders. 12. According to the information in the case file based on the latest submissions by the parties, both actions are apparently still pending before the Supreme Administrative Court. 13. On 23 February 2001 the Istanbul Administrative Court annulled the compensation order dated 24 March 2000. The administrative authority appealed and subsequently on 4 February 2005 the Supreme Administrative Court quashed the judgment of the Istanbul Administrative Court. 14. On 18 April 2006 the Istanbul Administrative Court followed the reasoning set out in the Supreme Administrative Court's decision and dismissed the case. According to the information in the case file, this action is still pending before the Supreme Administrative Court. | 1 |
dev | 001-58914 | ENG | CYP | GRANDCHAMBER | 1,999 | CASE OF LARKOS v. CYPRUS | 1 | Violation of Art. 14+8;Not necessary to examine Art. 14+P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Luzius Wildhaber | 6. The applicant is a Cypriot citizen born in 1936. He is a retired civil servant. On 1 May 1967 he rented from the Cypriot State a house in which he has been living ever since with his wife and four children. The tenancy agreement had many of the features of a typical contract for the lease of property with provisions on the payment of rent by the applicant, the use and maintenance of the property, the giving of notice and a termination date. The agreement provided that the tenancy would come to an end in the event of the applicant being transferred to a district other than the one in which the property was situated. 7. On 3 December 1986 the Ministry of Finance informed the applicant that the permission by virtue of which he occupied the premises was revoked and that he had to surrender the property by 30 April 1987. He failed to do so and on 3 June 1987 the Attorney-General notified him that if he did not vacate the house before 31 July 1987 legal action would be taken against him. 8. On 3 July 1987 the applicant replied that he had been living together with his family in the house for twenty years. He had been obliged to spend significant sums of money on the maintenance and improvement of the house since the competent public authorities had shown no interest in its upkeep. He claimed that he was a “statutory tenant” within the meaning of the Rent Control Law 1983 (Law no. 23/1983 – see paragraphs 14 and 15 below) and stated that he would continue to occupy the premises as long as he was protected by law. 9. On 9 March 1989, replying to a second letter from the Attorney-General dated 5 January 1989, the applicant reiterated his earlier position. 10. On 3 February 1990 the government of Cyprus instituted proceedings against the applicant before the District Court of Nicosia to have him evicted. The government submitted, inter alia, that the applicant did not occupy the house under a tenancy agreement within the meaning of the Rent Control Law 1983, but that the premises had been allocated to him by administrative order because of his position in the civil service. 11. On 5 February 1992 the District Court of Nicosia gave judgment against the applicant. The court did not pronounce on the issue of the title under which the applicant occupied the premises. The court’s interpretation of the Rent Control Law 1983 led it to conclude that its protection did not extend to the applicant since it only bound private owners of property and not the Cypriot State. A person who rented premises owned by the State could not therefore be considered a “statutory tenant” protected by that Law. The applicant was ordered to vacate the premises before 30 June 1992. 12. The applicant appealed against the judgment to the Supreme Court relying on Article 14 of the Convention and Article 1 of Protocol No. 1. At the hearing before the Supreme Court the applicant relied essentially on the following argument: his rights as a tenant were “property rights” within the meaning of Article 1 of Protocol No. 1 and he was the victim of discrimination in the enjoyment of these rights because the Rent Control Law 1983, as interpreted by the District Court of Nicosia, gave no protection to tenants of the State whereas the same Law protected the State as a “statutory tenant” when it rented premises owned by a private individual. The applicant also submitted that he was the victim of a further act of discrimination in that he enjoyed less protection under the relevant Law than tenants of private persons. 13. On 22 May 1995 the Supreme Court dismissed the applicant’s appeal, considering that he could not claim any property rights under Article 1 of Protocol No. 1 as a tenant. The court also found that, in any event, the notion of equality did not require that a person who enjoyed the protection of the Rent Control Law 1983 as a tenant should be automatically required to grant the same protection to his or her tenants if that person happened to own property. Finally, the court considered, in an obiter dictum, that even if the case concerned the different treatment reserved by the law to property rented out by private owners and to property rented out by the State, there would be no violation of the Constitution or the Convention because “it would be reasonable to consider that it is not necessary to grant protection [to tenants] vis-à-vis the [State] which [is] not in the same position as a private owner and [is] not expected to administer the property of the State according to criteria similar to those guiding a private owner”. Further to this decision, the applicant has been threatened with imminent eviction. 14. According to section 3(1), the Rent Control Law 1983 applies only to dwellings and shops in areas designated “regulated areas”, which are defined in section 2 as every area which was declared as such under the previous rent control legislation and includes every other area so declared by order of the Council of Ministers. Section 3(1), which has been unaffected by subsequent amendments to the 1983 Law, sets out the circumstances under which an order may be made. Section 3(1) provides as follows: “Whenever it is considered by the Council of Ministers to be necessary or expedient for the purpose of securing the availability of dwellings and shops for reasonable rents and the security of possession thereof, or whenever the public interest otherwise so requires, the Council of Ministers may by Order published in the Official Gazette of the Republic declare any area in Cyprus as a regulated area, and thereupon the provisions of this Law shall apply to all dwellings or shops within such area.” “Οσάκις το Υπουργικόν Συμβούλιον κρίνη ότι είναι αναγκαίον ή σκόπιμον προς τον σκοπόν της εξασφαλίσεως της διαθεσιμότητος των κατοικιών ή καταστημάτων αντί λογικών ενοικίων και της ασφαλείας της κατοχής τούτων, ή οσάκις το δημόσιον συμφέρον ούτως άλλως απαιτή, το Υπουργικόν Συμβούλιον δύναται δια διατάγματος δημοσιευομένου εις την επίσημον εφημερίδα της Δημοκρατίας να κηρύξη οιανδήποτε περιοχήν εν Κύπρω ως ελεγχομένην περιοχήν, τούτου δε γενομένου θα ισχύουν αι διατάξεις του παρόντος Νόμου δι’ οιασδήποτε κατοικίας ή καταστήματα ενός της τοιαύτης περιοχής.” 15. According to section 11 tenants of dwellings situated within a “regulated area” who, upon the expiry or termination of the first term of their tenancy agreement, remain in occupation of the dwelling (“statutory tenants”) cannot be evicted save in certain specified circumstances set out in the Rent Control Law. These circumstances include the non-payment of rent, unauthorised use of the property and where the dwelling is reasonably required by the landlord for occupation by him or his wife, children or other dependants. 16. Under Article 54(e) of the Constitution, it is for the Council of Ministers to supervise and dispose of property belonging to the Republic of Cyprus. This power of supervision and disposal must be exercised in accordance with the provisions of the Constitution and the law. | 1 |
dev | 001-115473 | ENG | IRL | ADMISSIBILITY | 2,012 | BOYCE v. IRELAND | 4 | Inadmissible | Aleš Pejchal;André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens | 1. The applicant, Mr Michael Boyce, is an Irish national, who was born in 1944 and lives in Mullingar, Ireland. He was represented before the Court by Mr P.J. Groarke, a lawyer practising in County Longford, Ireland. 3. On 10 July 1996 the applicant was arrested under section 4 of the Criminal Justice Act 1984 on suspicion of rape of the complainant at her home in 1989. A police officer (an officer of An Garda Síochána) cautioned him to the effect that he was not obliged to speak but anything he might say might be given in evidence. He was taken to a police station where he was informed by the police that they had information that he had been involved in other sexual offences against the same complainant. The applicant denied any involvement in the alleged offences. 4. A police officer asked the applicant whether he would provide a sample of his blood and the applicant agreed. The sample was taken in the police station by a medical doctor with the consent of the applicant. The applicant was released from custody. He was then charged with nine sexual offences contrary to, inter alia, the Criminal Law (Rape) Act 1981 against the complainant. Those offences took place over a period of over 10 years (1983 to 1994) while the complainant was 55-66 years of age. The applicant did not dispute during his trial (see below) that he had provided the sample voluntarily but he argued that he had not been cautioned about the use that could be made of the sample. The trial judge found that he had been given the appropriate caution (that he was not obliged to give any sample but that any tests carried out on the blood sample might be admitted in evidence against him) and that he had fully understood it. It was not disputed that the sample had been taken under the common law and not pursuant to the Criminal Justice (Forensic Evidence) Act, 1990 (“the 1990 Act”). 5. In October 1997 he was re-arrested and returned for trial before the Central Criminal Court (“CCC”). His trial began on 16 October 2000. 6. The trial judge tried, as a preliminary issue in the absence of the jury, the admissibility of the DNA evidence drawn from the blood sample. The applicant had argued that he had not been properly cautioned and that the sample had been unlawfully taken because the common law power, on which the police relied, had been ousted by the 1990 Act. The trial judge heard oral evidence from relevant police officers, the applicant and the relevant doctor: the trial judge found that the applicant had been cautioned by the police (that he was not required to provide a sample but that, if he did so, the sample could be analysed and the results admitted against him at trial) and that he had understood the caution. The trial judge noted that, having given a sample, the applicant had then signed a statement, after he had consulted his solicitor, in which he accepted that he had volunteered the sample after such a caution. The trial judge concluded that he had been properly cautioned prior to giving the sample. He also found that the common law power to obtain a blood sample remained and co-existed alongside that of the 1990 Act so that the common law was a valid legal basis for the taking of the voluntary blood sample. The trial judge, in his ruling admitting the evidence, did so principally on the basis of section 2(11) of the 1990 Act: it stated that the powers conferred on the police under the Act were without prejudice to other powers exercised by them which meant that the power of the police to invite persons to voluntarily provide a blood sample applied in this case and was unaffected by the provisions of the 1990 Act. 7. The complainant did not identify the applicant in her evidence but stated that the offences had been committed by the same man since, inter alia, the perpetrator referred to earlier incidents when later assaulting her. The DNA evidence was key: the prosecution’s case was that the DNA evidence linked the applicant to two of the offences (1989 and 1991) and, if the jury were to find that the DNA evidence established his guilt for those two offences, it was also entitled to conclude that the same person committed all or any one of the other offences. The trial ended on 17 November 2000 when the applicant was convicted by jury on six counts of rape, attempted rape, indecent assault or sexual assault from 1983-1994. In March 2001 he was sentenced to concurrent terms of 8 years’ imprisonment. 8. On 9 March 2001 the applicant applied for leave to appeal to the CCA mainly contesting the lawfulness of the blood sample arguing that the only lawful basis for it being obtained, retained and used was the 1990 Act. Of the 21 grounds of appeal, the first and last referred to the applicant’s constitutional rights: that the trial judge had erred in finding that the sample had been lawfully taken under the common law and thus failed to vindicate his constitutional right to bodily integrity; and that the police had failed to inform the applicant that his sample would be used to investigate offences other than that relating to 1989 contrary to his rights to bodily integrity, to privacy, not to incriminate himself and to fair procedures. 9. His appeal to the CCA was heard on 23 and 24 June 2003. Further submissions were requested and filed in October 2003. On 17 February 2005 he was released from prison. 10. By judgment of 21 December 2005 the CCA rejected his appeal. It reviewed in some detail and confirmed the trial court’s factual findings as regards, inter alia, the caution given to the applicant prior to giving the sample. It also underlined the legality under the common law of collecting forensic evidence on a voluntary basis from person in custody: “While the conduct of criminal investigations by the [police] must be carried out within the ambit of the law and in accordance with the law, many of the procedures which they adopt may not require the exercise of powers expressly conferred by statute. The interviewing and taking of statements from witnesses to a crime, the entry upon the scene of a crime, its examination and taking away of forensic evidence are just some examples of investigation methods which are carried out on the basis of the consent and cooperation of the citizens concerned. ... An example would be where a householder permits a [police officer] to enter or enter and search premises without the need for a search warrant. Cooperating citizens may willingly provide the [police] with forensic evidence such as fingerprints, clothing or blood samples to assist them in their inquiries. A rape victim may willingly provide a sample of pubic hair so that the [police] may determine whether it matches a pubic hair discovered in the course of their investigations in circumstances which, if matched, may implicate a suspect. Of course the gathering of such evidence and its use at a criminal trial from persons, who at the trial have the status of witnesses rather than that of an accused, is rarely a source of controversy. ... Inevitably, ... the obtaining of forensic evidence from persons in custody may often be a source of legal controversy at a trial and subject to particular scrutiny as to its lawfulness and its voluntary nature. ... It has long been the case that the prosecution are entitled to introduce such forensic evidence obtained from a person in custody at a trial provided that it was obtained voluntarily and with the full consent of the person in custody. Provided consent is fully and voluntarily given and the person in custody is of full age and not otherwise suffering from any legal or other incapacity, they may give a forensic sample, including in response to a [police] Garda request, and the [police] may take it or receive it. That is an essential part of the evidence gathering aspect of a criminal investigation provided it is done within the ambit of the law but it has not always been and is not necessarily dependent, as such, on the existence of express statutory powers to collect such voluntarily provided forensic evidence. In short, it is not unlawful to take voluntarily provided forensic samples from persons in custody. ... It would indeed be extraordinary if [parliament] contemplated that any forensic sample freely and voluntarily provided by a person in custody and then forensically examined by the [police] which was lawful before the passing of the Act should be considered unlawful after the passing of the Act without any express provision to that effect, even though it was provided without any element of coercion and when the consequences of the refusal were nil from the point of view of an accused.” 11. The CCA went on to find that the 1990 Act created a statutory regime distinct from the common law and, further, that that regime did not have the effect of abolishing the existing common law power. Both legal bases, statutory and common law, subsisted. The 1990 Act extended existing law; it did not abrogate it. The DNA evidence, drawn from the sample taken under the common law, was admissible. Finally, the CCA did not consider tenable the factual presumption underlying the 21st ground of appeal because the applicant had never disputed that he had given the sample voluntarily and it was the uncontested evidence of the prosecution that the police had informed him that they were investigating, not only a sexual offence committed against the complainant in 1989, but also his involment in other sexual offences against her. 12. By perfected order (not submitted) of the CCA of 22 October 2007, the CCA gave leave to appeal pursuant to section 29 of the Courts of Justice Act 1924 on a point of law of general public importance desirable in the public interest to be examined by the Supreme Court. The Supreme Court judgments recorded the text of the question certified by the CCA as follows: “Is it lawful for a member of An Garda Siochana, when taking a sample of blood from a person in custody who voluntarily agrees to provide that sample for the purpose of forensic analysis, to do so without having invoked the provisions of Section 2 of the Criminal Justice (Evidence) Act, 1990?” 13. By Notice of Motion dated 28 May 2008 (grounded upon an affidavit of the same date and a Notice of Appeal dated 24 October 2007), the applicant requested, pursuant to section 59 of the Criminal Justice (Amendment) Act 2007, leave to add 7 grounds of appeal for the Supreme Court’s consideration. The first two and last grounds read as follows: “1. That the Court of Criminal Appeal erred in law or erred on a question of mixed fact and law in holding that Section 2 of the [1990 Act] did not preclude [the police] from taking a voluntary forensic sample from a person in custody without invoking the provisions of the said Act and that the said section of the 1990 Act was designed to enable [the police] to obtain such forensic samples which might otherwise be refused and to provide for admissibility of such evidence arising from the refusal, and that the neglect, failure or refusal by the [police] to take the said sample under the aegis of the said Act was ultra vires, contrary to Article 15.2.1 and Article 40.3.1 and 2 of the Constitution. 2. That the learned trial judge erred in law and on the facts in ruling that the blood sample from the Accused for the purpose of DNA testing was admissible in evidence, that it was lawfully taken and/or did not require to be taken pursuant to the Criminal Justice (Forensic Evidence) Act 1990, and thereby failed to vindicate the Accused’s Constitutional Rights to his bodily integrity. ... 14. On 18 November 2008 the Supreme Court rejected (by a majority) the appeal. All judges agreed that it had been long accepted that the police could, under the common law, obtain information and samples from a person so long as that person’s consent was given voluntarily. Indeed, even the judge who dissented on the question of the effect of the 1990 Act noted that the applicant had accepted that there had been a power to take samples by consent under the common law, he referred to the CCA judgment on the issue cited at paragraph 10 above and he added: “22. Neither the inviolability of the dwelling nor the right to bodily integrity of the human individual, though these are personal rights which enjoy constitutional protection, prevents individuals from agreeing to provide access to the one and samples from the other. Most citizens will perceive it as their duty to assist in the investigation of crime. Many will wish to eliminate themselves from suspicion; many others will wish to assist in finding the perpetrator of a crime. Where evidence is thus freely and voluntarily provided by a person at liberty, no principle of the criminal law prevents material thus gained in the course of police investigation from becoming the subject-matter of evidence at a criminal trial against the provider.” 15. The Supreme Court found that the 1990 Act did not deprive the police of their ability to take samples under the common law since both the statutory and common law schemes for taking samples co-existed. It was satisfied that the matter in issue was not the application of a policy of the Director of Public Prosecutions (“DPP”), (whereby he had advised that, after the coming into force of the Act, the police could still take samples that were provided voluntarily and on consent) or whether that policy was appropriate or not. Rather, the matter in issue was a question of law. The advice of the DPP was an interpretation of the 1990 Act. The issue was whether that interpretation was correct. The Supreme Court conducted a detailed construction of the 1990 Act in order to ascertain the intention of the legislature. It noted that the common law approach to obtaining information by consent was well established. It was a fundamental aspect of the approach to investigating crime. It was a practical approach. Any alteration to such a fundamental aspect of criminal investigation would require a clear expression of an intention to change. No such approach was apparent from the words of the Act. It further noted that section 2(11) of the 1990 Act expressly stated that the powers conferred by that section were without prejudice to any other powers exercisable by a member of the Garda Síochána: it thereby expressly retained powers of the Garda Síochána. The Supreme Court went on to note the detrimental consequences to a ‘person’ under the 1990 Act and it gave, as an example, the ‘inference’ which might be raised at the trial, and upon which a jury might rely for corroboration. There was also the possibility of the offence of obstruction under section 2(9) of the 1990 Act. No such detrimental consequences arose under the common law. Therefore it considered that to apply the statutory scheme in the absence of a clear mandatory requirement under statute would be a step too far. The Supreme Court was satisfied that the Oireachtas did not intend to exclude the common law when it passed the 1990 Act and that the common law might also be applied to a person detained or in prison as referred to in section 2 of that Act. Finally, the Supreme Court noted two other grounds of appeal (Nos. 5 and 6) which the applicant’s counsel had highlighted in his oral submissions and which it rejected. 16. One judge dissented on the effect of the 1990 Act and considered that, when a person was in custody, it would be absurd, “inconsistent and potentially unfair” to ignore the statutory regime which he considered the Government to have intended would apply in such circumstances. He regarded the first three grounds of the applicant’s appeal as concerning the question of the “admissibility of the evidence”. He found that the failure to apply the 1990 Act was not an interference with the constitutional rights of the applicant since he had freely agreed to provide a sample of his blood. He also considered that this failure to follow the statutory regime did not impact on the admissibility of the DNA evidence: while the blood sample had been obtained unlawfully, it had led to the production of objective material evidence linking the applicant to the offences so that “no breach of a constitutional right was involved”. 1. The Constitution 17. Article 15 concerns the constitution and powers of Parliament (the Oireachtas) and, in so far as relevant, provides as follows: “2.1 The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.” 18. Article 40 is entitled “Personal Rights” and, in so far as relevant, reads as follows: “40.3.1 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen. 40.3.2 The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.” 19. Section 4(2) of the 1984 Act provides as follows: “Where a member of the Garda Síochána arrests without warrant a person whom he, with reasonable cause, suspects of having committed an offence to which this section applies, that person may be taken to and detained in a Garda Síochána station for such period as is authorised by this section if the member of the Garda Síochána in charge of the station to which he is taken on arrest has at the time of that person’s arrival at the station reasonable grounds for believing that his detention is necessary for the proper investigation of the offence.” 20. The police may obtain samples on a voluntary basis from persons in custody under the common law. There are no specific rules laid which regulate the taking, use, retention or destruction of such samples. No inferences may be drawn from a refusal to provide a sample. 21. The 1990 Act also permits the taking of samples from persons in custody. It provides for authorisation to request samples on a consent basis, it allows the drawing of inferences in case of a refusal and it governs the use of samples pre-trial and post-trial including destruction. 22. In 1995 a circular of the Director of Public Prosecutions (“DPP”) advised that, after the coming into force of the 1990 Act, the police could still take samples that were provided voluntarily and on consent. If consent was obtained, the sample was taken under common law rules. If the person refused, a written consent was requested. If obtained, the sample was taken under the 1990 Act and, if refused, the provisions of the 1990 Act on negative inferences could come into play. 23. The long title to the 1990 Act states it to be “An Act to amend and extend the law to authorise the taking of bodily samples for forensic testing from persons suspected of certain criminal offences”. It came into force on 5 June 1992 and it applies only to persons in custody under section 30 of the Offences Against the State Act 1937 and under the 1984 Act. 24. Section 2 provides the primary power to take samples: “(1) Subject to the provisions of subsections (4) to (8) ..., where a person is in custody ..., a member of the Garda Síochána may take, or cause to be taken, from that person for the purpose of forensic testing all or any of the following samples, namely - (a) a sample of - (i) blood, ... (4) A sample may be taken under this section only if - (a) a member of the Garda Síochána not below the rank of superintendent authorises it to be taken, and (b) in the case of a sample mentioned in subparagraph (i), ... of paragraph (a) of subsection (1) of this section ... the appropriate consent has been given in writing. ... (6) Before a member of the Garda Síochána takes, or causes to be taken, a sample under subsection (1) of this section, or seeks the consent of the person from whom the sample is required to the taking of such a sample, the member shall inform the person- (a) of the nature of the offence in which it is suspected that that person has been involved, (b) that an authorisation has been given under subsection (4)(a) of this section and of the grounds on which it has been given, and (c) that the results of any tests on the sample may be given in evidence in any proceedings. ... (11) The powers conferred by this section are without prejudice to any other powers exercisable by a member of the Garda Síochána.” 25. According to Section 3, where consent required under section 2 is refused without good cause following an appropriate caution, then a trial court may draw inferences from that refusal and the refusal with such inferences can amount to corroboration of any evidence in relation to which the refusal is material. Section 4 of the Act provides for the destruction of records and samples where proceedings are not instituted within 6 months of taking the sample or where the person is acquitted or discharged or the proceedings are discontinued. | 0 |
dev | 001-22719 | ENG | GBR | ADMISSIBILITY | 2,002 | ANDREWS v. THE UNITED KINGDOM | 4 | Inadmissible | Georg Ress;Nicolas Bratza | The applicant, Mr Thomas Charles Andrews, is a British national, who was born in 1936 and lives in London, England. He is represented before the Court by Mr Geoffrey Goldkorn, a lawyer practising in London with Goldkorn & Mathias, Solicitors. The respondent Government are represented by their Agent, Ms R. Mandal, Foreign and Commonwealth Office, London. The facts of the case, as submitted by the parties, may be summarised as follows. On 17 March 1994 H.M. Customs & Excise (“C&E”) arrested the applicant and his son D, searched the applicant’s home and seized GBP 42,305. The applicant was charged with an offence of so conducting himself that his conduct must have involved the commission of one or more VAT offences in connection with the affairs of J&A Transport Ltd, a company of which he was director and secretary. D was also charged with similar offences in relation to the same company as well as two other companies, Avonmarsh Ltd and A.J. Kingsland & Sons Ltd. As to J&A Transport Ltd, the applicant was registered as the owner of one of the two issued shares, his daughter-in-law (D’s wife) being the registered owner of the remaining share. According to the Government, the applicant represented the company in all dealings with C&E in regard to VAT-related matters. J&A Transport Ltd took over the business of Avonmarsh Ltd. D was declared bankrupt in September 1991. On 27 May 1994 the applicant and D were further charged with, inter alia, failure to operate the PAYE (Pay as You Earn) tax system correctly. On 7 July 1994 on the ex parte application of C&E under sections 77 and 78 of the Criminal Justice Act 1988 (“the CJA”), Mr Justice Schiemann in the Queen’s Bench Division made an order against the applicant (“the Restraint Order”) under the CJA. The general effect of the Restraint Order was to prevent the applicant from disposing of his assets as identified in the Order. Furthermore, the applicant’s home was made subject to a charge in order to secure payment to the Crown of an amount equal to the value of the property. By a further order under the CJA, Mr Justice Schiemann appointed a Receiver and manager of the applicant’s realisable property. Under this order, the Receiver was given power to pay all fees, commission and other costs from the proceeds of sale or realisation of the assets subject to the order, and was allowed remuneration in an amount to be agreed by C&E or, in default of agreement, to be determined by the court. The property listed in the schedule to the receivership order included not only the sum of GBP 42,305 seized from the applicant’s home, but also the bank accounts of the applicant and of J&A Transport Ltd and vehicles used by the latter company. Similar orders were also made on the same day by Mr Justice Schiemann against D. To comply with the Restraint Order, the applicant swore an affidavit on 20 July 1994 in which he identified his assets. He stated inter alia that his assets included a 50% share in J&A Transport Ltd, and that he had therefore “an interest in all the assets and liabilities of J&A Transport Ltd ....” He further specified that he had an interest in the money in a bank account of J&A Transport Ltd, and that he was owed dividends of GBP 36,000 by the company. The applicant also stated in the affidavit that some of the money seized from his home (GBP 42,305) was partly his and partly his wife’s or belonged to other members of his family. C&E were authorised to pay over to the Receiver the sum of GBP 42,305 which it had seized from the applicant’s home. Pursuant to the terms of the Restraint Order, the Receiver took possession of this amount. C&E were not required to give any cross-undertaking in damages in respect of any of the orders obtained from Mr Justice Schiemann. The Restraint Order was varied by consent on 3 August 1994, 20 September 1994, 13 October 1994 and 10 April 1995 to enable sums to be paid to the applicant’s former solicitors for legal costs in connection with his defence in the pending criminal proceedings. In all, sums totalling GBP 32,924 were released by the Receiver to the applicant’s solicitors for these purposes, leaving a balance of GBP 10,011 in the Receiver’s hands. Prior to the applicant’s trial, the Receiver used this balance in payment of her costs and remuneration. The majority of the costs were attributable to the monitoring of J&A Transport Ltd including its bank accounts “and to discussing various vehicle sales and purchases with the applicant in order to maintain the quality of the fleet.” D maintained at his trial that the applicant had played no active role within J&A Transport Ltd and that he had asked the applicant to be the director and secretary of the company because of his [D’s] impending bankruptcy. He stated that the applicant only signed documents as director of the company on his request, including blank cheques. On 11 December 1995 D was convicted of cheating the public revenue by failing to declare the Income Tax and National Insurance contributions on the full value of wage payments made to the employees of J&A Transport Ltd. On 12 December 1995 D was convicted of the fraudulent evasion of VAT with respect to the affairs of J&A Transport Ltd. On 11 December 1995 the applicant was acquitted of all charges against him. The applicant was awarded his costs from central funds. However, these did not include the costs incurred by, or the remuneration of, the Receiver. According to the applicant, the trial judge found that D was the beneficial owner of J&A Transport Ltd and that the applicant had no interest in its assets. Furthermore, it was at no time asserted by the prosecution during the trial that the GBP 42,305 or any part of it belonged to D. In separate proceedings a confiscation and compensation order was made against D under the CJA. On 9 January 1996 the applicant applied to the High Court for the discharge of the orders against him. In an affidavit sworn on 8 January 1996 the applicant indicated that he wished the receivership to be discharged in order to enable J&A to continue trading. On 19 January 1996 the Restraint and Receivership Orders were discharged by order of Mr Justice Keene with liberty to the applicant to apply for his costs. The applicant’s home was released from the charging order and the applicant and his daughter-in-law were permitted to deal in property relating to J&A Transport Ltd to enable it to continue trading. The conduct of the business of the company remained under the supervision of the Receiver. The remaining GBP 10,011 was not returned to the applicant after the discharge of the Restraint Order. By letter to the Receiver dated 18 February 1997 the applicant’s solicitors sought repayment of the balance of the GBP 42,305 after deduction of the amounts already released to cover his legal costs. However, by letter dated 3 March 1997 the Receiver stated that no funds remained to be returned because all balances had been used to defray the “prior costs of the receivership”. From the Receiver’s affidavit sworn on 1 August 1996, it appears that the Receiver utilised the balance of the applicant’s funds prior to his acquittal, largely for the purpose of monitoring the business of J&A Transport Ltd (see above). On 19 January 1996 (the date of discharge of the Restraint Order) the Receiver held a balance of GBP 11,428.32 arising from the sale of certain of J&A Transport Ltd’s vehicles, which funds “were utilised to settle costs arising subsequent to the applicant’s acquittal.” On 5 June 1997 the applicant applied for an order that C&E pay his costs arising out of the civil proceedings in which the Restraint Order had been made including the Receiver’s costs, expenses and remuneration. On 3 October 1997 the applicant’s application was heard by Mr Justice Owen. It was made clear that the application was limited to seeking an order for payment of the balance of GBP 10,011. Mr Justice Owen dismissed the applicant’s application and refused leave to appeal. In relation to the applicant’s claim to be repaid the sum of GBP 10,011, Mr Justice Owen stated: “Now the applicant says, “it is unfair that I should not have that money.” One can well see his point of view. The result is unfair. However, we live in a society where sometimes unfairness will and must occur. It was necessary to appoint the Receiver to act as was the case. There was no way at the time to separate the GBP 42,305 from the other assets.” Mr Justice Owen further observed : “In my judgment, it would not be at all proper to order [C&E] to repay the £10,000 as to which, as I have already explained, the applicant may feel that he has been hard done by. The social explanation for that is, as a result of his son’s criminal behaviour, the order had to be made and if he has lost this money, as he has, then he should put it down to his son’s criminal behaviour. There was nothing improper in the action of the [C&E], or in the order which was made by the court.” Mr Justice Owen further considered that negligence could not be imputed to the Receiver such as to bring section 88 of the CJA into play; nor were the C&E guilty of any serious default in its investigation or prosecution of the offences at issue which could have allowed the applicant to invoke the compensation provisions of section 89 of the CJA. On 23 April 1998 leave to appeal against the decision of Mr Justice Owen was granted by Lord Justices Auld and Buxton. Leave was restricted to the question of whether the applicant could recover the sum of GBP 10,011 by way of an order that C&E pay his costs of the civil proceedings including the Receiver’s costs, expenses and remuneration. On 13 January 1999 the applicant’s appeal was heard by the Court of Appeal (Lord Justices Hirst, Aldous and Ward). Lord Justice Ward summarised the issue before the court as follows: “... if a receiver is appointed under the [Criminal Justice Act 1988] to receive and manage a defendant’s property and incurs costs and expenses in so doing, who bears that cost and expenses if the defendant is subsequently acquitted by the Crown Court and awarded his costs of defence out of public funds?” Lord Justice Ward summarised the law relating to the payment of receivers’ costs as follows: “The ordinary rule is that receivers should not accept their appointment unless satisfied that the receivable assets will be sufficient to meet their claim for costs and for remuneration or that they would be otherwise indemnified, by contract or by order of the court, by the party responsible for their appointment. In this case there was an agreement between the receiver and [C&E] that [C&E] would indemnify the receiver if she were unable to bring in sufficient assets to meet her costs. That did no more than replicate the statutory position ...” The Court of Appeal considered that the remuneration of the Receiver was not costs incidental to the receivership proceedings. In the court’s opinion the charges incurred by the Receiver in supervising the running of the company during the relevant period were expenses of the receivership and were not therefore recoverable by the applicant even if he had ultimately been successful in the receivership proceedings. Lord Justice Ward, although sympathetic to the applicant’s situation, stated: “The true position, as it now appears to me, is that the investigation of whether or not the defendant has suffered loss by reason of the receivership is an investigation which should be and ordinarily would be conducted in deciding whether or not damages should be awarded against the plaintiff for the breach of the usual undertakings as to damages a plaintiff would normally be required to give. Such an investigation would enable justice to be done. Here no undertaking was given and none ordinarily is.” Lord Justice Ward then observed that section 89 of the CJA only provided the applicant with the possibility to obtain compensation from the C&E on proof that the latter authority had been guilty of serious default in the investigation and prosecution of the offences with which the applicant was charged. In the words of Lord Justice Ward, section 89 “simply does not provide an adequate remedy.” With reluctance he concluded that: “... even if the expenses of the receivership are within the definition of costs, they are not costs of and incidental to the proceedings.” Lord Justice Aldous observed that: “... on the facts ... the [applicant] may seem to have been treated unfairly by the conclusion that I have reached, as his GBP 10,000 was used up as an expense of the receivership and therefore cannot be recovered. That in my view is the result of the type of proceedings and the conditions for recovery laid down in the Act. Parliament in section 88 of the Act specifically limited the right to recover from a receiver to cases where negligence is established. It is accepted for the purposes of these proceedings that there was no negligence. I would add that in my judgment [counsel for C&E] was right in his submission that this really was a claim for compensation dressed up as an application for an award of costs, and it is therefore most significant that by section 89 Parliament laid down a carefully regulated code for such a claim. Consequently, in my judgment, section 89 is the proper avenue for a compensation claim of this kind, provided of course the claimant can bring himself within the rather strict requirements of that section.” In its judgment on 25 February 1999, the Court of Appeal dismissed the appeal. It refused leave to appeal to the House of Lords. The applicant did not petition for leave to appeal to the House of Lords, having being advised by counsel that this course of action offered no prospects of success. (1) The High Court may by order (referred to in this Part of this Act as a “restraint order”) prohibit any person from dealing with any realisable property, subject to such conditions and exceptions as may be specified in the order. (2) Without prejudice to the generality of subsection (1) above, a restraint order may make such provision as the court thinks fit for living expenses and legal expenses. (3) A restraint order may apply– (a) to all realisable property held by a specified person, whether the property is described in the order or not; and (b) to realisable property held by a specified person, being property transferred to him after the making of the order. (4) This section shall not have effect in relation to any property for the time being subject to a charge under section 78 below: (5) A restraint order– (a) may be made only on an application by the prosecutor; (b) may be made on an ex parte application to a judge in chambers; and (c) shall provide for notice to be given to persons affected by the order. (6) A restraint order– (a) may be discharged or varied in relation to any property; and [(b) shall be discharged on the conclusion of the proceedings or application in question.] (7) An application for the discharge or variation of a restraint order may be made by any person affected by it. (8) Where the High Court has made a restraint order, the court may at any time appoint a receiver– (a) to take possession of any realisable property, and (b) in accordance with the court’s directions, to manage or otherwise deal with any property in respect of which he is appointed, subject to such exceptions and conditions as may be specified by the court; and may require any person having possession of property in respect of which a receiver is appointed under this section to give possession of it to the receiver. (...)” “(1) The High Court may make a charging order on realisable property for securing the payment to the Crown– (a) where a confiscation order has not been made, of an amount equal to the value from time to time of the property charged; and (b) in any other case, of an amount not exceeding the amount payable under the confiscation order. (2) For the purposes of this Part of this Act, a charging order is an order made under this section imposing on any such realisable property as may be specified in the order a charge for securing the payment of money to the Crown. (3) A charging order– (a) may be made only on an application by the prosecutor; (b) may be made on an ex parte application to a judge in chambers; (c) shall provide for notice to be given to persons affected by the order; and (d) may be made subject to such conditions as the court thinks fit and, without prejudice to the generality of this paragraph, such conditions as it thinks fit as to the time when the charge is to become effective. (...) (8) An application for the discharge or variation of a charging order may be made by any person affected by it.” “(1) Where a receiver appointed under this Part of this Act or in pursuance of a charging order takes any action– (a) in relation to property which is not realisable property, being action which he would be entitled to take if it were such property; (b) believing, and having reasonable grounds for believing, that he is entitled to take that action in relation to that property, he shall not be liable to any person in respect of any loss or damage resulting from his action except in so far as the loss or damage is caused by his negligence. (2) Any amount due in respect of the remuneration and expenses of a receiver so appointed shall, if no sum is available to be supplied in payment of it under section 81(5) above, be paid by the prosecutor or, in a case where proceedings for an offence to which this Part of this Act applies are not instituted, by the person on whose application the receiver was appointed.” “(1) If proceedings are instituted against a person for an offence or offences to which this Part of this Act applies and either– (a) the proceedings do not result in his conviction for any such offence, or (b) where he is convicted of one or more such offences– (i) the conviction or convictions concerned are quashed, or (ii) he is pardoned by Her Majesty in respect of the conviction or convictions concerned, the High Court may, on an application by a person who held property which was realisable property, order compensation to be paid to the applicant if, having regard to all the circumstances, it considers it appropriate to make such an order. (2) The High Court shall not order compensation to be paid in any case unless the court is satisfied– (a) that there has been some serious default on the part of a person concerned in the investigation or prosecution of the offence concerned, being a person mentioned in subsection (5) below; and (b) that the applicant has suffered loss in consequence of anything done in relation to the property by or in pursuance of[– (i) an order under this Part of this Act; or [(ii) an order of the Court of Session under section 32, 33, 34 or 35 of the Proceeds of Crime (Scotland) Act 1995.]] (3) The Court shall not order compensation to be paid in any case where it appears to the Court that the proceedings would have been instituted or continued even if the serious default had not occurred. (5) Compensation payable under this section shall be paid– (a) where the person in default was or was acting as a member of a police force, out of the police fund out of which the expenses of that police force are met; (b) where the person in default was a member of the Crown Prosecution Service or acting on behalf of the service, by the Director of Public Prosecutions; (c) where the person in default was a member of the Serious Fraud Office, by the Director of that Office; (...)” | 0 |
dev | 001-77268 | ENG | RUS | CHAMBER | 2,006 | CASE OF BOLAT v. RUSSIA | 1 | Violation of P4-2;Violation of P7-1;Non-pecuniary damage - financial award | Christos Rozakis | 9. The applicant was born in 1974 and lives in Kapaklı, Turkey. 10. From 1998 to 2003 the applicant, an ethnic Kabardinian, lived in the Kabardino-Balkarian Republic of the Russian Federation on the basis of a long-term residence permit (vid na zhitelstvo). 11. In early 2000 the applicant's residence permit was lost or stolen. On 22 February 2000 he asked the Passports and Visas Department of the Ministry of the Interior of the Kabardino-Balkarian Republic (passportno-vizovaya sluzhba MVD KBR) to replace the permit and to extend it until 5 August 2003. 12. After a few months' delay the applicant was issued with a new residence permit valid until 9 July 2000. The shortened term of validity was explained by reference to a recommendation of the Federal Security Service of the Russian Federation, which considered a longer extension “inappropriate” because the circumstances surrounding the loss of the first permit had not been clear enough. 13. The applicant complained to a court. On 1 June 2000 the Nalchik Town Court allowed the applicant's complaint and ordered the Passports and Visas Department to extend his residence permit until 4 August 2003. 14. On 7 June 2002 the applicant was fined for having breached the residence regulations. He did not contest the fine before a court. 15. After 5 December 2002 the applicant's registered place of residence was a flat on Kulieva avenue in Nalchik. His residence registration at that address was valid until 4 August 2003. Department of the Interior No. 1 of Nalchik (Pervyi otdel vnutrennikh del g. Nalchika) placed a stamp to that effect in the applicant's residence permit. 16. On 11 December 2002 the applicant was at a friend's flat in Furmanova street in Nalchik where he had stayed overnight. At 9 a.m. a man and a woman entered the flat. The woman introduced herself as a police inspector of Department of the Interior No. 2 of Nalchik; the man did not identify himself. The man and woman claimed that they were conducting a “check-up of identity documents”. The applicant's friend, Mr Kh., refused them entry to the flat, but they entered nevertheless. They proceeded to the room where the applicant was and asked him to produce identity documents. On seeing a different address in his residence permit, the woman asked the applicant why he did not live at home. The woman invited the applicant to come with them to the police station, which the applicant did. The applicant stayed at the station while a report was being drawn up. 17. On the same day Inspector A. drew up a report of an administrative offence and issued a decision to fine the applicant RUR 500 (approximately EUR 20) for “residing in Furmanova street without registering his place of stay” which was an offence under Article 18.8 of the Administrative Offences Code. Inspector A. asked the applicant to pay the fine on the spot. The applicant refused and complained to a court. 18. On 24 December 2002 the Nalchik Town Court heard the applicant's complaint. The court reiterated that the Russian Constitution guaranteed to anyone who lawfully resided in its territory the freedom to move freely and choose his or her place of residence and stay and that that provision also applied to foreign nationals. The court took statements from the applicant, his friend Mr Kh. and another person who had been in the flat in Furmanova street on 11 December 2002; they all maintained that the applicant had paid a visit to his friend and had not been living in Mr Kh.'s flat. Furthermore, Ms Sh., the owner of the flat on Kulieva avenue, confirmed that she had made her flat available to the applicant for residential purposes and that he had been duly registered at her address. The Town Court came to the conclusion that no administrative offence had been committed and annulled the decision of 11 December 2002. The police lodged an appeal. 19. On 20 January 2003 the Supreme Court of the Kabardino-Balkarian Republic quashed the judgment of 24 December 2002 on procedural grounds and remitted the case for examination by a different formation. 20. On 26 February 2003 the Nalchik Town Court dismissed the applicant's complaint, finding as follows: “The administrative proceedings against [the applicant] were initiated, and a fine in the amount of 500 roubles was imposed on him, not only on the basis of the obvious fact, established by Inspector A., that [the applicant] had been outside his place of residence but also on the basis of the report drawn up by O. and Sh., district police officers of Department of the Interior No. 3 of Nalchik, on [the applicant's] residence in the Furmanova street flat from 20 November to 11 December 2002... [These police officers] gave statements as witnesses and stated that they had learnt from operational sources that a foreigner, named Bolat Haci-Bayram, was secretly living in Kh.'s flat... At the same time the complainant and the witnesses Mr Kh. and Ms Sh. failed to satisfy the court that [the applicant] had only stayed overnight at Kh.'s on the night of 10-11 December 2002 because of heavy frost outside and the need to avoid returning to a remote district of the town. In particular, Ms Sh. did not inform the court on what date she had visited [the applicant] on Kulieva avenue and how many days before the administrative offence report was drawn up he might have been staying at Mr Kh.'s... Besides, the court takes into account that the witnesses examined on behalf of the complainant are his relatives or friends and might have an interest in the outcome of the case. Additionally, the court has examined a report by [the police officer Kha.] which stated that during checks he could not verify the applicant's residence either at the old or at the new address.” 21. The applicant appealed against the judgment. In the grounds of appeal the applicant's lawyer alleged, in particular, that the fine had been imposed in the applicant's absence by a police officer who had not been competent to do so, that the report of an administrative offence had not been corroborated by any evidence and that the sanction had not been imposed in accordance with law. The lawyer also submitted that the first-instance court had erred in its assessment of statements by the police officers O. and Sh. who had denied that they had known the applicant, and that the court had admitted in evidence a report by the officer Kha. who had not been examined before or at the hearing. 22. On 19 March 2003 the Supreme Court of the Kabardino-Balkarian Republic upheld the judgment of 26 February 2003. It rejected the applicant's arguments that he had been unlawfully fined, on the ground that he had allegedly failed to raise these issues before the Town Court. The Supreme Court did not address the applicant's inability to question the officer Kha. Instead, it found that “on 30 November 2002 Mr Af., district inspector of the first department of the interior of Nalchik, reported to his superior that the flat on Kulieva avenue was empty”. The remainder of the Supreme Court's reasoning was similar to that of the Town Court. 23. On 31 March 2003 the applicant and his lawyer asked the Presidium of the Supreme Court of Kabardino-Balkaria to lodge an application for supervisory review. On 6 June 2003 the request was refused. 24. On 4 February 2003 the applicant applied by mail for an extension of his residence permit to 30 July 2007. On 6 March 2003 the Passports and Visas Department informed him that he had to apply for an extension in person. The applicant responded in writing that there was no such requirement in the domestic law. 25. On 29 May 2003 the town prosecutor of Nalchik sent a request to remedy a violation of Russian laws (predstavlenie ob ustranenii narushenii zakonov RF) to the head of the Passports and Visas Department. The prosecutor requested that the applicant's residence permit be annulled and that he be expelled because he had been found guilty of two administrative offences in the previous year. 26. On 30 May 2003 Inspector Sh. of the Passports and Visas Department annulled the applicant's residence permit on the ground of repeated violations of residence regulations in the Russian Federation. The order was approved by the Minister of the Interior of Kabardino-Balkaria. The applicant was ordered to leave Russia within fifteen days. 27. On 9 June 2003 the Nalchik Town Court stayed the execution of the order of 30 May 2003 pending the Supreme Court's decision on a request by the applicant for supervisory review. 28. On 7 August 2003 at about 10 a.m. several officers of the Ministry of the Interior and the Federal Security Service entered the applicant's flat on the Kulieva prospect. Some of them wore face masks. They did not identify themselves and they did not present any search or deportation warrant. The applicant was handcuffed and taken by car to Nalchik Airport where he was placed on a flight to Istanbul, Turkey. 29. On 8 October 2003 the Supreme Court of Kabardino-Balkaria, giving a ruling in the supervisory-review procedure, quashed the decision on an administrative offence of 11 December 2002 and the judgment of the Nalchik Town Court of 26 February 2003, finding that there had been no admissible evidence showing that the applicant had lived outside the place of his residence registration. It noted that the reports by police officers O. and Sh. had been based on hearsay and that officer Kha.'s report had not confirmed the applicant's residence in Furmanova street either. Furthermore, it pointed out that the Town Court's requirement of proof that the applicant had only been a guest in Furmanova street ran contrary to the presumption of innocence enunciated in Article 1.5 of the Administrative Offences Code. Finally, it noted that the administrative charge against the applicant had been examined by an officer of the police station having no territorial jurisdiction over Furmanova street and that this fact alone had rendered the sanction unlawful. The Supreme Court discontinued the administrative proceedings against the applicant. 30. On 28 October 2003 the Nalchik Town Court heard the applicant's complaint against the order of 30 May 2003 annulling his residence permit. The court noted that a residence permit could only be annulled in case of repeated violations of residence regulations, but that this provision was no longer applicable as the administrative proceedings against the applicant had been terminated by the decision of 8 October 2003. The court declared the order of 30 May 2003 void and ordered that the Passports and Visas Department extend the applicant's residence permit for five years, starting from 4 August 2003. The judgment was not appealed against and became enforceable on 10 November 2003. 31. In a separate set of proceedings, the applicant's representative attempted to bring criminal charges against the officials who had deported the applicant by force. On 25 August 2003 he complained to the Nalchik town prosecutor's office about the allegedly unlawful search at the applicant's home and his deportation to Turkey. On 30 August 2003 his complaint was rejected because no evidence of a criminal offence had been adduced. On 20 November 2003 the head of the investigations department of the Kabardino-Balkaria prosecutor's office annulled the decision of 30 August and remitted the complaint for additional investigation. On 3 December 2003 the Nalchik town prosecutor's office again refused to prefer criminal charges on the ground that no evidence of a criminal offence had been adduced. This decision was subsequently quashed, but on 11 December 2003 and 1 February 2004 further orders discontinuing criminal proceedings were issued. 32. On 9 April 2004 the Passports and Visas Department informed the applicant that it would extend his residence permit in implementation of the Town Court's judgment of 28 October 2003. The Department invited the applicant to appear in person in order to collect the permit. 33. On 6 July 2004 the applicant's representative, Mr Kuchukov, received the documents for extension of the applicant's residence permit and forwarded them to the applicant in Turkey. 34. At 6.30 p.m. on 23 August 2004 the applicant arrived in Nalchik on board a flight from Istanbul. On arrival he was detained by officers of the Border Control and the Federal Security Service and locked in an isolated room in the Nalchik airport building. The applicant was not allowed to consult his lawyer, Mr Kuchukov. 35. On 23 and 24 August 2004 Mr Kuchukov sent complaints about the applicant's unlawful detention to prosecutor's offices of various levels, to the Border Control, to the Federal Security Service and to the Representative of the Russian Federation at the European Court of Human Rights. 36. At 10 a.m. on 25 August 2004 Mr Kuchukov asked Major D., the head of the Border Control, to see the applicant. His request was refused by reference to an order of the Federal Security Service. Major D. then called Captain G. from the Kabardino-Balkaria Department of the Federal Security Service who confirmed that the applicant's contacts with lawyers had indeed been banned. 37. At 1.10 p.m. on 25 August 2004 the applicant was put on a scheduled flight to Turkey. It can be seen from the “deportation record” of the same date, drawn up on the letterhead of the Nalchik airport border control point of the Federal Security Service, that the applicant was deported for having been in breach of section 27 § 1 of the Law on the Procedure for Entering and Leaving the Russian Federation. 38. According to the Government, the ban on the applicant's re-entry into Russia was imposed by the Federal Security Service some time in December 2002 on the basis of Section 25.10 of the Law on the Procedure for Entering and Leaving the Russian Federation. The Government claimed that they could not produce a copy of that decision because it contained “State secrets”. They submitted, however, that the Prosecutor-General's Office had found no reason to challenge that decision before a court as it had been issued in accordance with the requirements of the above law. 39. In response to the applicant's lawyer's complaints, on 26 August 2004 a senior investigator with the military prosecutor's office of the Border Control of the Federal Security Service refused to initiate a criminal investigation into the applicant's deprivation of liberty at Nalchik Airport. He found that the ban had been imposed by Directorate “I” of the Federal Security Service and that the applicant had awaited the next flight to Turkey in the international zone of Nalchik Airport under the surveillance of the Border Control officers. The room had been equipped with a toilet, ventilation, lighting, a TV set, a bench and a chair. As the Border Control officials had acted in accordance with the applicable regulations, the applicant's stay in the transit area could not be interpreted as a “deprivation of liberty”. 40. The Government indicated that the Federal Security Service was examining the issue of annulment of the applicant's residence permit in accordance with section 9 (1) of the Foreign Nationals Law. 41. Everyone lawfully within the territory of the Russian Federation shall have the right to move freely and choose his or her place of stay or residence (Article 27 of the Russian Constitution). Foreign nationals in the Russian Federation shall have the same rights and obligations as Russian nationals subject to exceptions set out in a federal law or an international treaty to which Russia is a party (Article 62 § 3). 42. A foreign national must register his or her residence within three days of his or her arrival in Russia (section 20 § 1 of the Law on Legal Status of Foreign Nationals in the Russian Federation, no. 115-FZ of 25 July 2002 – “the Foreign Nationals Law”). Foreign nationals must obtain residence registration at the address where they stay in the Russian Federation. Should their address change, such change is to be re-registered with the police within three days (section 21 § 3). 43. A foreign national who violates the residence regulations of the Russian Federation, including by non-compliance with the established procedure for residence registration or choice of a place of residence, shall be liable to an administrative fine of RUR 500 to 1000 and possible expulsion from Russia (Article 18.8 of the Administrative Offences Code). A report of the offence described in Article 18.8 may be drawn up by officials of the State migration authorities (Article 28.3 § 2 (15)). This report must be forwarded within one day to a judge or an officer competent to adjudicate administrative matters (Article 28.8). The determination of an administrative charge that may result in expulsion from Russia shall be made by a judge of a court of general jurisdiction (Article 23.1 § 3). A right of appeal against a decision on an administrative offence lies to a court or to a higher court (Article 30.1 § 1). 44. A residence permit may be annulled if a foreign national has been charged two or more times within the last year with violations of residence regulations (section 9 (7) of the Foreign Nationals Law). 45. A foreign national's residence permit shall be issued for five years. Upon expiry it may be extended for a further five years at the holder's request. The number of extensions is not limited (section 8 (3) of the Foreign Nationals Law). 46. A residence permit may be annulled, particularly if the foreign national advocates a violent change of the constitutional foundations of the Russian Federation or otherwise creates a threat to security of the Russian Federation or its citizens (section 9 (1) of the Foreign Nationals Law). 47. Administrative expulsion of a foreign national from the Russian Federation must be ordered by a judge (Articles 3.10 § 2 and 23.1 § 3 of the Administrative Offences Code). 48. A foreign national may be refused entry into the Russian Federation if such refusal is necessary for the purpose of ensuring the defensive capacity or security of the State, or for the protection of public order or public health (section 27 § 1(1) of the Law on the Procedure for Entering and Leaving the Russian Federation, no. 114-FZ of 15 August 1996). 49. On 10 January 2003 the Law on the Procedure for Entering and Leaving the Russian Federation was amended. In particular, a new section 25.10 was added. It provided that a competent authority, such as the Ministry of Foreign Affairs or the Federal Security Service, could issue a decision that a foreign national's presence on Russian territory was undesirable, even if his or her presence was lawful, if it created a real threat to the defensive capacity or security of the State, to public order or health, etc. If such a decision was made, the foreign national had to leave Russia or else be deported. That decision also formed the legal basis for subsequent refusal of re-entry into Russia. 50. Resolution 1277 (2002) on honouring of obligations and commitments by the Russian Federation, adopted by the Parliamentary Assembly of the Council of Europe on 23 April 2002, noted in the relevant part as follows: “8. However, the Assembly is concerned about a number of obligations and major commitments with which progress remains insufficient, and the honouring of which requires further action by the Russian authorities: ... xii. whilst noting that the Russian federal authorities have achieved notable progress in abolishing the remains of the old propiska (internal registration) system, the Assembly regrets that restrictive registration requirements continue to be enforced, often in a discriminatory manner, against ethnic minorities. Therefore, the Assembly reiterates its call made in Recommendation 1544 (2001), in which it urged member states concerned 'to undertake a thorough review of national laws and policies with a view to eliminating any provisions which might impede the right to freedom of movement and choice of place of residence within internal borders'...” 51. The Explanatory Report defines the scope of application of Article 1 of Protocol No. 7 in the following manner: “9. The word 'resident' is intended to exclude from the application of the article any alien who has arrived at a port or other point of entry but has not yet passed through the immigration control or who has been admitted to the territory for the purpose only of transit or for a limited period for a non-residential purpose... The word lawfully refers to the domestic law of the State concerned. It is therefore for domestic law to determine the conditions which must be fulfilled for a person's presence in the territory to be considered 'lawful'. [A]n alien whose admission and stay were subject to certain conditions, for example a fixed period, and who no longer complies with these conditions cannot be regarded as being still 'lawfully' present.” 52. The Report further cites definitions of the notion of “lawful residence” contained in other international instruments: “a. Residence by an alien in the territory of any of the Contracting Parties shall be considered lawful within the meaning of this Convention so long as there is in force in his case a permit or such other permission as is required by the laws and regulations of the country concerned to reside therein... b. Lawful residence shall become unlawful from the date of any deportation order made out against the person concerned, unless a stay of execution is granted.” “a. Regulations governing the admission, residence and movement of aliens and also their right to engage in gainful occupations shall be unaffected by this Convention insofar as they are not inconsistent with it; b. Nationals of a Contracting Party shall be considered as lawfully residing in the territory of another Party if they have conformed to the said regulations.” 53. The Report clarifies the notion of “expulsion” as follows: “10. The concept of expulsion is used in a generic sense as meaning any measure compelling the departure of an alien from the territory but does not include extradition. Expulsion in this sense is an autonomous concept which is independent of any definition contained in domestic legislation. Nevertheless, for the reasons explained in paragraph 9 above, it does not apply to the refoulement of aliens who have entered the territory unlawfully, unless their position has been subsequently regularised. 11 . Paragraph 1 of this article provides first that the person concerned may be expelled only 'in pursuance of a decision reached in accordance with law'. No exceptions may be made to this rule. However, again, 'law' refers to the domestic law of the State concerned. The decision must therefore be taken by the competent authority in accordance with the provisions of substantive law and with the relevant procedural rules.” | 0 |
dev | 001-97399 | ENG | UKR | CHAMBER | 2,010 | CASE OF UDOVIK v. UKRAINE | 4 | Violation of Art. 6-1 | Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 4. The applicant was born in 1944 and lives in Vinnytsya. 5. On 1 June 2000 the applicant’s son was beaten to death. On 8 June 2000 the prosecutors instituted criminal proceedings against M., D., Z. and C. (“the defendants”) on suspicion of having murdered the applicant’s son. On 29 December 2000 the prosecutors issued a bill of indictment and referred the criminal case to courts. 6. According to the applicant, on 11 December 2000, in the framework of the criminal proceedings, she introduced a civil claim against the defendants for compensation and on 21 February 2003 she amended her claim by increasing the claimed compensation. Despite the Court’s request, the applicant has failed to provide a copy of her claim. In their observations, the Government submitted a copy of the applicant’s civil claim dated 21 February 2003. 7. Following the Supreme Court’s two remittals of the case for fresh consideration, on 19 June 2009 the Staromiskyy District Court of Vinnytsya found M. guilty of intentional infliction of grievous bodily injuries on the applicant’s son that led to the latter’s death and sentenced him to ten years’ imprisonment. It further found C., Z. and D. guilty of hooliganism, sentenced them to various terms of restriction of liberty and discharged them because the limitation period had expired. The court also allowed the applicant’s civil claim and ordered M. and C. to pay her certain amounts in compensation for pecuniary and non-pecuniary damage. 8. On 20 August 2009 the Vinnytsya Regional Court of Appeal upheld the above judgment. There is no information in the case file whether the case was further considered on cassation. 9. In the course of the proceedings, two forensic expert examinations were carried out, the hearings were 25 times adjourned due to the defendants’ lawyers’ and once due to the witnesses’ failure to attend them. The hearings were also four times adjourned due to the applicant’s and the defendants’ lawyers’ failure to attend them (which delayed the proceedings to two months approximately). | 1 |
dev | 001-85681 | ENG | UKR | CHAMBER | 2,008 | CASE OF REGENT COMPANY v. UKRAINE | 3 | Preliminary objection dismissed (ratione materiae);Violation of Art. 6-1;Violation of P1-1;Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - Government to pay the judgment debt | Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych | 6. The applicant is a privately owned commercial company, Regent Engineering International Limited, registered in Victoria (the Seychelles). The company’s actual address is in London (United Kingdom). It was represented before the Court by its director, Mr Yuriy Portnik, who resides in London. 7. In December 1998 COM s.r.o. (“COM”), a limited liability company registered in Prague (Czech Republic) instituted proceedings in the International Commercial Arbitration Court at the Chamber of Commerce and Industry of Ukraine (Міжнародний комерційний арбітражний суд при Торгівельно-Промисловій палаті України – “the Arbitration Tribunal”) against an open joint-stock company, Oriana, seeking an award for breach of contract. In particular, COM claimed that Oriana, a company registered in the city of Kalush (Ivano-Frankivsk Region), with 99.9% of its shares owned by the State, had failed to comply with its contractual obligations concerning the processing of raw materials. 8. On 23 December 1998 the Arbitration Tribunal made an arbitration award (case AC no. 142y/98) ordering the Oriana company to pay COM the amount of 2,466,906.47 United States dollars (USD) in compensation. 9. On 19 July 1999 COM lodged an application with the Ivano-Frankivsk Regional Arbitration Court (“the Regional Arbitration Court”) seeking a ruling that COM was a creditor in relation to the Oriana company, on the basis of the 23 December 1998 award. 10. On 2 August 1999 the Kalush State Bailiffs’ Service of the Ministry of Justice (“the Bailiffs’ Service”) instituted enforcement proceedings against Oriana in order to collect the debt from it as ordered by the Arbitration Tribunal. These enforcement proceedings were joined to the other enforcement proceedings that were pending against Oriana. 11. On 16 October 1999 the Regional Arbitration Court rejected the applicant company’s request to initiate bankruptcy proceedings against Oriana. 12. On 18 and 21 October 1999 the Bailiffs’ Service initiated the attachment of the property owned by Oriana. On 13 December 1999 the Bailiffs’ Service quashed the decision on the attachment of Oriana’s assets. 13. On 14 December 1999 the property owned by Oriana was attached again. On 16 December 1999 the Bailiffs’ Service decided to sell some of the property that had been attached (the Oriana company’s polymerisation workshop). 14. On 20 September 2000 COM again requested the Regional Arbitration Court to institute bankruptcy proceedings against Oriana. It also sought a ruling including it on the list of Oriana’s creditors. 15. Between 1999 and 2003 the Bailiffs’ Service took a number of measures to obtain payment of the debts accumulated by Oriana. In particular, it sent payment orders to the debtor’s bank, seized its assets, prohibited the unauthorised sale of property belonging to Oriana and attempted to sell some of the company’s property in order to pay its debts. It also attached the Oriana company’s bank accounts and its shares (including the shares which Oriana owned in the Lukor company). 16. At the same time, the enforcement proceedings were suspended several times because Oriana contested the bailiffs’ actions before the courts and because its numerous creditors filed applications with the court seeking an insolvency order in respect of the company. 17. On 18 September 2002 the Ivano-Frankivsk Regional Commercial Court (formerly the Ivano-Frankivsk Regional Arbitration Court) instituted bankruptcy proceedings against Oriana. These proceedings are still pending. 18. On 22 January 2003 COM requested the Ivano-Frankivsk Regional Commercial Court to include it on the list of creditors of the Oriana company. 19. On 10 February 2003 the applicant company concluded a contract with COM concerning the transfer of the latter’s right to claim the debt awarded by the Arbitration Tribunal on 23 December 1998. 20. On 8 June 2004 the applicant company and COM requested that the Arbitration Tribunal recognise the applicant company as the creditor in the arbitration proceedings against Oriana on the basis of the above-mentioned contract. On 21 June 2004 the President of the Arbitration Tribunal dismissed their request, stating that the Arbitration Tribunal had been dissolved after having made the award of 23 December 1998. 21. On 9 July 2004 the applicant company and COM requested that the Ivano-Frankivsk Regional Court of Appeal (“the Court of Appeal”) declare the applicant company to be legally entitled to the debt awarded to COM by the Arbitration Tribunal on 23 December 1998. 22. On 16 July 2004 the applicant company and COM requested the Bailiffs’ Service to change the creditor in the enforcement proceedings on the basis of the contract. 23. On 9 September 2004 the applicant company and COM requested the Court of Appeal to declare that the applicant company was the Oriana company’s creditor and to substitute the applicant company for COM as a party to the enforcement proceedings on the same grounds as mentioned above. 24. On 10 September 2004 the Court of Appeal allowed the applicant company’s request. It declared the applicant company to be Oriana’s creditor in respect of the debt of USD 2,466,906.47 resulting from the arbitration award of 23 December 1998. 25. On 18 November 2004 the applicant company and COM requested the Bailiffs’ Service to substitute the applicant company for COM in the enforcement proceedings against Oriana. 26. On 9 December 2004 the Bailiffs’ Service substituted the applicant company for the original creditor in the enforcement proceedings on the basis of the ruling of 10 September 2004. 27. On 29 December 2005 the Ivano-Frankivsk Regional Commercial Court (“the Regional Commercial Court”) ruled that the Bailiffs’ Service had to discontinue the enforcement proceedings. 28. On 30 December 2005 the Bailiffs’ Service discontinued the enforcement proceedings and transferred the writs of enforcement to Oriana’s property administrator (розпорядник майна). 29. On 23 January 2006 the applicant company requested the Regional Commercial Court to amend the list of Oriana’s creditors and to include it on this list on the basis of the contract of 10 February 2003 and the ruling of the Court of Appeal of 10 September 2004. 30. On 6 February 2006 the Regional Commercial Court allowed the applicant company’s request and ordered that the administrator of the Oriana company’s property make the relevant amendments to the list of creditors. 31. On 27 February 2006 the applicant company requested to be informed whether the Bailiffs’ Service had substituted it for COM in the list of creditors in the enforcement proceedings against Oriana. 32. The enforcement proceedings are still pending. 33. Under section 12 of the Law (Закон України “Про відновлення платоспроможності боржника або визнання його банкрутом”), a commercial court is entitled to order a moratorium on debt recovery from a company which is the subject of insolvency proceedings. The moratorium entails a prohibition on execution by the Bailiffs’ Service of judgments against the company concerned. The same section provides that a company protected by the moratorium is immune from any fines and other sanctions for non-fulfilment or improper fulfilment of its financial obligations during the moratorium. 34. The Law (Закон України “Про введення мораторiю на примусову реалiзацiю майна”) aims at protecting State interests with regard to the sale of assets belonging to undertakings in which the State holds at least 25% of the share capital. A moratorium on the enforcement of judgment debts has been introduced until the mechanism for the forced sale of the property of such undertakings is improved. No time-limit has been set. 35. Section 2 of the Law provides that the prohibition on the forced sale of assets includes the execution of writs by the State Bailiffs’ Service on the assets belonging to such companies. The Law therefore stays the execution of all writs by the State Bailiffs’ Service in respect of the assets of undertakings in which the State holds at least 25% of the share capital. 36. Under Article 214 of the Civil Code, in the event of delay in the fulfilment of its financial obligations, a debtor must, upon a claim by the creditor, pay the amount of the debt, plus any interest payable at the officially established inflation rate during the default period. 37. Chapter 40 (“Compensation for damage”) of the Civil Code provides for compensation for damage and establishes the grounds for such compensation. Chapter VII (“Protection of property”) of the Ownership Act guarantees protection of property and allows for court action in such matters. Also, Articles 197-202 of Chapter 17 (“Reassignment of debts”) of the Civil Code provide for the conclusion of transfer contracts and the reassignment of rights to claim debt recovery. 38. Under section 2 of the Act (Закон України “Про виконавче провадження”), the enforcement of judgments is entrusted to the State Bailiffs’ Service. Under section 85 of the Act, the creditor may file a complaint against actions or omissions of the State Bailiffs’ Service with the head of the competent department of that service or with a local court. Section 86 of the Act entitles the creditor to institute court proceedings against a legal person entrusted with the enforcement of a judgment on account of the inadequate enforcement or non-enforcement of that judgment, and to receive compensation. 39. Under the Enforcement Proceedings Act, awards made by arbitration tribunals (третейські суди) are subject to enforcement by the State Bailiffs’ Service (section 3(1) of the Act) and are therefore treated as equivalent to judgments delivered by domestic courts. 40. Section 11 of the Act (Закон України “Про державну виконавчу службу”) provides for the liability of bailiffs for any inadequate performance of their duties, and for compensation for damage caused by a bailiff when enforcing a judgment. Under section 13 of the Act, acts and omissions of the bailiff can be challenged before a superior official or the courts. 41. There have been several resolutions of the Cabinet of Ministers in relation to the financial situation of the Oriana company: (a) no. 1650 of 19 October 1998 (on measures aimed at preventing Oriana’s bankruptcy and on the transfer of the company’s management to the Shelton enterprise); (b) no. 1280 of 16 July 1999, which quashed the previous resolution on Oriana (it also related to measures aimed at ensuring Oriana’s financial and economic well-being and the restructuring of its debts); (c) resolution no. 800 of 10 May 1998 (on the approval of the list of enterprises exempt from land tax payment in 1999); (d) no. 92-p of 19 February 2000 (on privatisation of the Oriana company); (e) no. 314-p of 10 August 2000 (on payment of Oriana’s debts for the loans it received); (f) no. 810-p of 28 October 2004 (suspending privatisation of Oriana, following the sale of 47.93% of shares in the Oriana company to CJSC Lukor, a closed joint-stock company founded by Oriana and Lukoil, a Russian company). 42. On 3 August 2000 the Cabinet of Ministers adopted a procedure for payment of Oriana’s debts from the State budget, amounting to USD 34,115,000. 43. On a number of occasions the Government included Oriana on the list of State-owned companies which had strategic importance for Ukraine’s economic well-being and security and were thus to be excluded from privatisation (see, for instance, resolutions nos. 1346 and 1734 of the Cabinet of Ministers of 29 August 2000 and 23 December 2004). 44. The Government also undertook to fund compensation for environmental damage caused by the Oriana company’s operations (resolution no. 593 of the Cabinet of Ministers of 18 July 2005). 45. In its resolution of 19 August 2002 the Cabinet of Ministers adopted an action plan providing for the elimination of environmental damage caused by the operation of Kaliyny Zavod, an enterprise belonging to the Oriana company. The action plan provided for the allocation of 33,800,000 Ukrainian hryvnas (UAH) from the State budget for necessary environmental work during the period from 2003 to 2012. 46. In decision no. 308-p of 3 August 2005 the Prime Minister ordered the Cabinet to examine Oriana’s financial problems and to take the necessary steps for its economic development. 47. Also, it ensues from the report of 15 December 2004 by the State Property Fund that the State, and in particular the State Property Fund, managed Oriana’s “corporate rights” (its corporate investments). In particular, on 26 May 2006 the State Property Fund appointed the State’s representative to Oriana’s supervisory board and ordered that the relevant structural department of the State Property Fund should issue a letter of authority for the representative enabling him to manage the State’s shares in the company. 48. In its judgment the Constitutional Court found that the Law of 29 November 2001 on the introduction of a moratorium on the forced sale of property complied with the Constitution of Ukraine. It also held that the Law at issue did not violate the constitutional principle of the binding nature of court judgments. Court judgments requiring the forced sale of the property of enterprises, given both prior to and after the Law was adopted, had not been set aside; they remained in force, and their enforcement was merely suspended until the mechanism for the forced sale of property was improved. That meant that the Law extended the term for enforcement of judgments during that period (“period of legislative improvement”). 49. The relevant provisions of Chapter VIII of the Act, concerning the recognition and enforcement of awards, read as follows: “In matters governed by the present Act, no court shall intervene except where so provided in the present Act.” “1. The functions referred to in sections 11(3), 11(4), 13(3) and 14 shall be performed by the President of the Ukrainian Chamber of Commerce and Industry. 2. The functions referred to in sections 16(3) and 34(2) shall be performed by the Appeal Court of the Autonomous Republic of Crimea, regional appeal courts or appeal courts of the cities of Kyiv and Sevastopol, depending on where the arbitration takes place.” (On 6 September 2005 the Verkhovna Rada amended this provision and allowed the local district courts of first instance to perform these functions.) “1. An arbitration award, irrespective of the country in which it was made, shall be recognised as binding and, upon a written application to the competent court, shall be enforced subject to the provisions of this section and of section 36. 2. The party claiming an award or applying for its enforcement shall supply the duly authenticated original award or a duly certified copy thereof, and the original arbitration agreement referred to in section 7 or a duly certified copy thereof. If the award or agreement is made in a foreign language, the party shall supply a duly certified translation thereof into the Ukrainian or Russian language.” “... 4. An award of the International Commercial Arbitration Court shall be carried out by the parties voluntarily within the time limit indicated by the Court. If the award does not indicate any time limit, it shall be carried out immediately. Awards not carried out within the applicable time limit shall be enforced in accordance with law and international treaties.” 50. The relevant extracts from the Rules of the International Commercial Arbitration Court (as approved by the decision of the Presidium of the Ukrainian Chamber of Commerce and Industry of 25 August 1994, Protocol no. 107(3), with amendments resulting from the decision of 26 September 2001 of the Presidium of the Ukrainian Chamber of Commerce and Industry) provide as follows: “... 9.1. An arbitration award may be challenged in court only by means of an application for setting aside in accordance with paragraphs 2 and 3 of Rule 9 of the present Rules. 9.2. An arbitration award may be set aside in accordance with section 6(2) of the International Commercial Arbitration Act by the Shevchenkivsky District Court of Kyiv only if: (1) the party making the application for setting aside furnishes proof that: a party to the arbitration agreement referred to in Rule 1.2 above was subject to an incapacity; or the said agreement is not valid under the law to which the parties have subjected it or, in the absence of any indication thereof, under the law of Ukraine; or a party was not given proper notice of the appointment of an arbitrator or of the arbitration proceedings or was otherwise unable to present its case; or the award was made regarding a dispute not contemplated by or not falling within the terms of the submission to arbitration, or, where it contains decisions on matters beyond the scope of the submission to arbitration, provided that the decisions on the matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or the composition of the Arbitration Tribunal or the arbitration proceedings were not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of the International Commercial Arbitration Act from which the parties cannot derogate, or, in the absence of such agreement, were not in accordance with this Act; or (2) the court finds that: the subject matter of the dispute is not capable of settlement by arbitration under the law of Ukraine; or the award is in conflict with the public policy of Ukraine. 9.3. An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the award or, if the request had been made under Rules 8.16-8.18 above, from the date on which that request had been disposed of by the Arbitration Tribunal.” “10.1. An award by the Arbitration Tribunal shall be final. It shall be executed by the parties voluntarily within the time-limit indicated by the Arbitration Tribunal. If the award does not indicate any time-limit, it shall be executed immediately. 10.2. An arbitration award shall be recognised as binding and, in the event of refusal to execute it voluntarily, it shall be enforced depending on the respondent’s location. If the debtor is in Ukraine, the award by the International Commercial Arbitration Court at the UCCI shall be enforced upon an application in writing to the competent court at the place of the debtor’s location in accordance with the International Commercial Arbitration Act and the rules of civil procedure in Ukraine. If the debtor is abroad, the claimant’s application in writing shall be communicated to the competent court of the country where the debtor is located and in accordance with Article III of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) or an inter-State agreement, the relevant court of the Contracting State shall recognise and enforce awards of the International Commercial Arbitration Tribunal in accordance with the rules of procedure of the territory where the award is being relied upon. 10.3. To obtain the recognition and enforcement of the award, the party applying for recognition and enforcement shall, at the time of the application, supply to the competent State court the duly authenticated original award or a duly certified copy thereof, and also the original arbitration agreement referred to in Rule 1.2 above or a duly certified copy thereof. If the said application, award or agreement is not made in an official language of the country in which the award is being relied upon, the party applying for recognition and enforcement of the award shall produce a translation of these documents into such language in two copies. The translation shall be certified by an official or sworn translator or by a diplomatic or consular agency.” | 1 |
dev | 001-57524 | ENG | BEL | CHAMBER | 1,967 | CASE "RELATING TO CERTAIN ASPECTS OF THE LAWS ON THE USE OF LANGUAGES IN EDUCATION IN BELGIUM" v. BELGIUM | 2 | Preliminary objection rejected (incompatibility) | null | 1. The object of the Commission’s request is to submit the case to the Court, so that the Court may decide whether or not certain provisions of the Belgian linguistic legislation relating to education are in conformity with the requirements of Articles 8 and 14 (art. 8, art. 14) of the Convention and Article 2 of the First Protocol (P1-2). The Commission’s provisional submissions on the merits of the case are set out in paragraph 33 of its first memorial. 2. The Applicants, who are parents of families of Belgian nationality, applied to the Commission both on their own behalf and on behalf of their children under age, of whom there are more than 800. Pointing out that they are French-speaking or that they express themselves most frequently in French, they want their children to be educated in that language. Alsemberg, Beersel, Antwerp, Ghent, Louvain and Vilvorde, where the signatories of five of the six Applications (Nos. 1474/62, 1691/62, 1769/63, 1994/63, and 2126/64) live, belong to the region considered by law as Dutch-speaking, whereas Kraainem (Application No. 1677/62) has since 1963 formed part of a separate administrative district with a "special status". In all of these districts ("communes") part of the population - in some cases a large part - is French-speaking. 3. Though the six Applications differ on a number of points, they are similar in many respects. For the purposes of this judgment it is sufficient to note that in substance they complain that the Belgian State: - does not provide any French-language education in the municipalities where the Applicants live or, in the case of Kraainem, that the provision made for such education is, in their opinion, inadequate; - withholds grants from any institutions in the said municipalities which may fail to comply with the linguistic provisions of the legislation for schools; - refuses to homologate leaving certificates issued by such institutions; - does not allow the Applicants’ children to attend the French classes which exist in certain places; - thereby obliges the Applicants either to enrol their children in local schools, a solution which they consider contrary to their aspirations, or to send them to school in the "Greater Brussels district", where the language of instruction is Dutch or French according to the child’s mother-tongue or usual language or in the "French-speaking region" (Walloon area). Such "scholastic emigration" is said to entail serious risks and hardships. In the main the Applicants complain that they and their children have suffered violation of certain Articles of the Convention and the Protocol as a result of being subjected to various provisions of the Act of 14th July 1932 "on language regulations in primary and intermediate education", the Act of 15th July 1932 "on the conferring of academic degrees", the Acts of 27th July 1955 and 29th May 1959, the Act of 30th July 1963 "on language regulations in education" and the Act of 2nd August 1963 "on the use of languages in administrative matters". The Acts of 14th and 15th July 1932 were repealed by the Act of 30th July 1963, but were still in force when the Alsemberg, Beersel, Kraainem, Antwerp and Ghent Applicants brought their cases before the Commission, and those Applicants still challenge these acts while at the same time attacking the present legislation. 4. Before the Commission, the Applicants complained of violations of Articles 8, 9, 10 and 14 (art. 8, art. 9, art. 10, art. 14) of the Convention and Article 2 of the Protocol (P1-2). The Belgian Government, for its part, pleaded that the legislation in dispute fully respects or respected those Articles, and it therefore asked the Commission to declare the Applications inadmissible as being manifestly ill-founded (Article 27 (2) of the Convention) (art. 27-2). The Commission did in fact, for that reason, reject the complaints which the Applicants (with the exception of those of Vilvorde) based on Articles 9 and 10 (art. 9, art. 10); on the other hand, it considered the six Applications admissible in so far as they alleged violations of Articles 8 and 14 (art. 8, art. 14) of the Convention and Article 2 of the Protocol (P1-2). The decisions on this point were given on various dates between 26th July 1963 and 29th June 1964. 5. The Commission having decided to join the six Applications, a single Sub-Commission ascertained the facts by examining the Applications together with the parties and tried to arrange a friendly settlement between the parties (Articles 28 and 29) (art. 28, art. 29). This attempt failed, and the plenary Commission therefore drew up a report as required under Article 31 (art. 31). The report was adopted on 24th June 1965 and transmitted to the Committee of Ministers of the Council of Europe on 25th June. That same day the Commission brought the case before the Court under Article 48 (a) (art. 48-a) of the Convention. 6. Summarising the opinion expressed in its report, the Commission recalled in paragraph 7 of its first memorial that it took the view: "- by 9 votes to 3, that the legislation complained of was not incompatible with the first sentence of Article 2 of the Protocol (P1-2), considered in isolation; - unanimously, that the legislation was not incompatible with the second sentence of the said article (P1-2), considered in isolation or in conjunction with Article 14 (art. 14+P1-2) of the Convention; - by 10 votes to 2, that the legislation was not incompatible, in the case of the Applicants, with Article 8 (art. 8) of the Convention, considered in isolation or in conjunction with Article 14 (art. 14+8); - by 9 votes to 3, that the general system of education in the areas which are unilingual by law was not incompatible with the first sentence of Article 2 of the Protocol, considered in conjunction with Article 14 (art. 14+P1-2) of the Convention; - by 11 votes to 1, that the same was true of the "special status" conferred by Section 7 of the Act of 2nd August 1963 on six bilingual communes, of which Kraainem, on the periphery of Brussels, is one; - by 7 votes to 5, that the Acts of 1963 were incompatible with the first sentence of Article 2 of the Protocol, read in conjunction with Article 14 (art. 14+P1-2) of the Convention, in so far as they result in the total withdrawal of subsidies from provincial, commune and private schools providing, in the form of non-subsidised classes and in addition to instruction given in the language prescribed by the language legislation, complete or partial education in another language; - unanimously, that the conditions on which children whose parents live outside the Greater Brussels district may be enrolled in schools in that district (Section 17 of the Act of 30th July 1963) were not, in the case of the Applicants, incompatible with the first sentence of Article 2 of the Protocol, read in conjunction with Article 14 (art. 14+P1-2) of the Convention; - that the Acts of 1963 were incompatible with the first sentence of Article 2 of the Protocol, read in conjunction with Article 14 (art. 14+P1-2) of the Convention, in so far as they prevent certain children, solely on the basis of their parents’ place of residence, from attending French-language schools at Louvain (8 votes to 4) and in the above-mentioned six communes on the periphery of Brussels (7 votes to 5); - by 8 votes to 4, that the legislation complained of was also incompatible with the first sentence of Article 2 of the Protocol, read in conjunction with Article 14 (art. 14+P1-2) of the Convention, in so far as it has resulted, since 1932, in a refusal to homologate certificates relating to secondary schooling not in accordance with the language requirements." Altogether, of the 12 members of the Commission concerned in the adoption of the report, three found no breach by the Belgian State of its obligations, while the majority considered that there had been a breach on three counts, but none on the others. The size and composition of the majorities on the various questions varied appreciably; moreover, the majorities on some questions embodied more than one point of view. Therefore the Commission’s report also sets out a number of individual opinions - some concurring, some dissenting. 7. In its first memorial the Commission pointed out that its decision to refer the matter to the Court had been unanimous. Among its reasons for taking this step it particularly stressed the legal importance and complexity of the case and its human and social aspects. 8. During the written proceedings the following submissions were made with regard to the preliminary objection raised by the Belgian Government: - by the Government in its first memorial: "1. The European Convention for the Protection of Human Rights and Fundamental Freedoms and Protocol secure the enjoyment of the rights and freedoms expressly mentioned in Articles 2-13 (art. 2, art. 3, art. 4, art. 5, art. 6, art. 7, art. 8, art. 9, art. 10, art. 11, art. 12, art. 13) of the Convention and Articles 1-3 of the Protocol (P1-1, P1-2, P1-3). 2. The idea of "national minority" within the meaning of Article 14 (art. 14) of the Convention may benefit the members of a specified social group where there is a violation of a right of freedom guaranteed in the Convention or the Protocol. 3. However, in these cases, the Convention affords no such protection, since (a) the right to education in one’s own language is not included among the rights and freedoms enshrined in the Convention and the Protocol; a fortiori there is no guarantee of the right to subsidies for education in one’s own language or to admission to all occupations on the strength of such education; (b) as a subsidiary argument, the "Applicants" do not belong to a "national minority" within the meaning of Article 14 (art. 14) of the Convention; (c) it follows that the Court is ratione materiae not competent to examine the merits of the dispute submitted to it. May it please the Court (a) to admit the Belgian Government’s preliminary objection and dismiss the legal action brought against the Government; (b) alternatively, to join the preliminary objection to the merits." - by the Commission in its second memorial "The Commission invites the Court to reject the objection raised by the Belgian Government"; - by the Government in its second memorial "The Belgian Government confirms the submissions stated by it at the end of its first memorial and reserves the right to supplement and amend them in subsequent proceedings". 9. At the hearing on 21st November 1966, the following submissions were made: - by the Commission: "The Commission ... requests the Court to reject the preliminary objection". - by the Belgian Government: "The Government’s preliminary objection should be accepted and the Applicants’ complaints rejected. Purely subsidiary, the Government requests that its preliminary objection be joined to the merits. It reserves the right to supplement and amend its submissions in the course of these proceedings". At the hearing on 22nd November 1966 the Commission made the following submissions: ‘The Commission upholds its request that the Court now reject the preliminary objection raised by the Belgian Government. "With regard to the Government’s alternative submission that the objection be joined to the merits we do not wish to express an opinion. We leave this point to the wisdom of the Court". At the hearing on 23rd November 1966, the Belgian Government asked the Court by way of final submissions: - to accept the preliminary objection and - alternatively, to join it to the merits. The Commission for its part stated, before the hearing closed, that it upheld its submission "in full". | 0 |
dev | 001-22960 | ENG | GBR | ADMISSIBILITY | 2,002 | SMITH v. THE UNITED KINGDOM | 4 | Inadmissible | Georg Ress;Nicolas Bratza | The applicant, Mr Ruben Smith, is a United Kingdom national, born in 1947, and he is currently in prison in Surrey. He is represented before the Court by Austin and Allen, a firm of solicitors practising in Bedfordshire. The facts of the case, as submitted by the parties, may be summarised as follows. In 1968 the applicant was convicted of inflicting grievous bodily harm. On 30 August 1998 the applicant’s cousin shot a man at point blank range in the thigh with a sawn-off shotgun in the living room of the applicant’s home. The applicant was arrested on 31 August 1998. He denied any knowledge of the incident claiming that that night he had been to a number of pubs, gone home, had tea and gone to bed. On 1 September 1998 he was interviewed by the police and he declined to answer questions. Later, on the same day, he requested an interview with the police. This time he told the police that he knew who was responsible for the shooting but that he had nothing to do with it. He said the shooting had taken place outside his house and that he had not been present. He was charged at the conclusion of that interview with wounding with intent to cause grievous bodily harm and with possession of a firearm. He then requested a further interview when he admitted that he had been at a pub with the victim and his cousin. The applicant claimed that when he arrived home the shooting had already happened and this time he named his cousin as responsible. When asked how he knew if he was not present at the time, he said that he had received a phone call from his cousin admitting responsibility. On 26 March 1999, the applicant’s cousin was subsequently convicted of wounding with intent to cause grievous bodily harm and was sentenced on 10 September 1999 to ten years’ imprisonment. The applicant, who had fallen ill during the trial, was tried later in August 1999 on one count of wounding with intent to cause grievous bodily harm and one count of possession of firearm with intent to endanger life. He did not give evidence at his trial or call any witnesses on his behalf. The victim’s evidence was that the applicant had entered the room in his house with a sawn-off shotgun, had pointed the gun at the victim’s head and legs and then left the room. He came back within a minute with his cousin, his cousin had the gun, the cousin pointed the gun at the victim’s head and then his legs and then shot the victim in the thigh. It was the prosecution’s case that the applicant had been behind the shooting and was responsible for providing the weapon. There was unchallenged evidence that the victim’s blood and flesh were found on the chair where he was shot in the applicant’s house and wadding from a shotgun cartridge and more of the victim’s blood were found outside the applicant’s house. At the close of the prosecution case it was submitted on behalf of the defence that there was no case to answer. The trial judge rejected the application ruling that there was no inherent weakness sufficient to enable him to withdraw the case from the jury. The applicant, who began to feel unwell during these proceedings, did not leave the court until after the judge’s ruling. Since the applicant was not intending to give evidence or call any evidence in his defence, at that stage all that remained were the closing speeches of counsel to the jury. The trial judge had already enquired as to whether the applicant had been warned of the possible consequences of not giving evidence before the applicant was taken ill. The trial judge adjourned the trial to seek a report on the applicant’s health. He was informed that the applicant was suffering from angina and was to be discharged from hospital that afternoon. The trial judge directed the trial to resume the next day. The applicant attended but his counsel requested permission for the closing speeches to be given in his absence. The prosecution and the trial judge agreed that the applicant could go home. On 20 August 1999 the trial judge gave a detailed summing-up to the jury. In outlining to the jury the functions of the judge and jury, he stated: “... You must ... be careful to decide the case only on the evidence which has been placed before you. You are entitled to draw inferences; that is to come to common sense conclusions based upon the evidence which you accept, but you must not speculate about what evidence there might have been because that amounts to no more than guessing, and you must not do that.” As to the burden and standard of proof, he pointed out that: “As in all cases under the English criminal law, the prosecution must prove that the defendant is guilty. [The applicant] does not have to prove his innocence. Indeed, he has chosen not to give evidence. That is his right. In a criminal trial, the burden of proving the defendant’s guilt lies always upon the prosecution, and in order to succeed in proving the defendant’s guilt, the prosecution must make you sure of it. Nothing less than that will do, and so if after you have considered all the evidence you are sure than Mr Smith is guilty, then you must return a verdict of guilty. If you are not sure, your verdict must be not guilty.” He then went on to deal with the separate consideration of the two counts against the applicant: “[The applicant] faces two counts on this indictment. You must consider the case against and for the defendant on each count separately. They are merely there as a matter of convenience on the same sheet, but you may feel that in this instance they stand or fall together”. and he then dealt with the earlier conviction of the applicant’s cousin: “... you have heard that [the applicant’s cousin] who is named in count one of this indictment with [the applicant], has been convicted. Well, the only reason you have been given this information is because it is evidence which goes to prove that this offence was committed at least by [the applicant’s cousin] ... [The applicant’s cousin] and other evidence tells you that it occurred in a room in [the applicant’s] home, but that is the only purpose of the evidence. It does not prove anything else, and apart from its relevance to that matter, it has no bearing and must not have any bearing on your decision as to whether the prosecution has made you sure of this defendant’s guilt”. The trial judge then dealt with the question of the relevance of the earlier lies told by the applicant to the police: “You know, you may feel, that [the applicant] has lied to the police. Certainly, virtually the whole of the first interview were lies and it may be that you will conclude that there are lies in [interviews] two and three as well. Well, you are entitled to consider whether this supports the case against him. You should consider: “Why did he lie?”. Now, the mere fact that a defendant tells a lie is not in itself evidence of guilt. A defendant may lie for many reasons. They may possibly be innocent ones ... in the sense that they do not denote guilt of this offence. For example, it may be ... to bolster a true defence mentioned to you by [the applicant’s counsel] a short while ago. It might be to protect somebody else or to conceal some conduct, which is not good conduct, but falls short [of] the commission of the offence, or it might be out of panic or confusion. If you think there is, or may be, an innocent explanation for the lies, then you should take no notice of them. It is only if you are sure that he did not lie for an innocent reason, then the lies can be regarded by you as evidence supporting the prosecution case and going towards the proof of guilt.” He then directed the jury as regards the inferences that might be drawn from the applicant’s failure to give evidence: “Now, [the applicant] has not given evidence. That is his right. He is entitled to remain silent and require the prosecution to prove its case. Indeed, it would be strange if he were not because at the start of every interview he is given a caution: “You do not have to say anything”, and a few more words are added. So, ladies and gentlemen, you must not assume he is guilty just because he has not given evidence. Because failure to give evidence cannot on its own prove guilt. But, of course, he was told, and you have heard me mention it to [the applicant’s counsel] earlier today, that depending on the circumstances, you may take into account the failure to give evidence when deciding on your verdict. [The applicant] did answer questions in interview and he now seeks to rely on those answers which are, of course, evidence in the case, but they are merely evidence of what he said then when being questioned by the police. It is a matter for you to decide what weight you should give to them, but you are entitled to bear in mind that those answers were not given here before you. They were not given on oath, and the prosecution has had no opportunity to test them before you in cross-examination.” On 20 August 1999 the jury found the applicant guilty of wounding with intent to cause grievous bodily harm and of possessing a firearm with intent to endanger life. In October 1999 he was sentenced to life imprisonment pursuant to section 2 of the Crime (Sentences) Act 1997 and a tariff of 3 years and 6 weeks was fixed. In his application for leave to appeal against conviction to a single judge of the Court of Appeal, the applicant argued that the trial judge wrongly rejected the defence submission that there was no case to answer and wrongly failed to withdraw the case from the jury. On 21 December 1999 the single judge rejected the applicant’s appeal, finding as follows: “The trial judge pointed out with sufficient care the contradictions and weaknesses in the evidence against you. There was evidence that you told or indicated to your partner ... to leave the room; that you then entered the room where the victim was with a sawn-off shotgun and pointed it at his head, chest and legs; that you then left the room and returned with Edwin Smith who now held the gun which was loaded and you were present when he fired at the victim. The Jury were entitled to infer either that when you entered the room with the gun it was loaded or that it was subsequently loaded in your presence. There would have been no need to load it if the only intention was to frighten the victim. Thereafter you were seen to dispose of something in the garden and both you and [your cousin] tidied up the room where the shooting occurred. You then either lied to the Police or said that you had no comment to make to their questions. In those circumstances, there was evidence for the Jury to consider and evidence from which they could infer that you had the necessary intent to be a joint participant in the offence.” In June 2000 the applicant submitted amended grounds of appeal with his renewed leave to appeal application to the full Court of Appeal, adding numerous complaints about the trial judge’s summing up. The full Court of Appeal rejected each ground of appeal against conviction on 30 June 2000. It “emphatically” agreed with the single judge’s views as regards the first ground of appeal (that there was no case to answer) and rejected each allegation as regards the trial judge’s summing up. As to his claim that the trial judge invited the jury to consider the applicant’s failure to give evidence against him in terms that were not sufficiently clear, the Court of Appeal found that the trial judge could have said more at the relevant juncture but it wondered whether any further degree of clarity would have helped the applicant in the circumstances. It did not accept the applicant’s complaint about the trial judge’s reference to his not giving evidence as a “failure” to give evidence: it found that the use of the word “failure” in that context was neutral, proper, fair without innuendo or pejorative force. Finally, the applicant’s claim that the trial judge had invited the jury to consider drawing an adverse inference against him for not giving evidence at his trial when in fact he was medically unfit to attend his trial was also rejected, the Court of Appeal noting that the defence had already declared before the applicant absented himself that it would not be calling any evidence and that the trial judge had satisfied himself, by asking the applicant’s counsel, that the applicant had been warned of the possible consequences of not giving evidence. On 12 July 2001, on the applicant’s appeal against sentence, the Court of Appeal quashed the sentence of life imprisonment and substituted a term of seven years’ imprisonment. Section 35 of the Criminal Justice and Public Order Act 1994, which concerns the exercise of the defendant’s right to silence at trial, provides that: “(1) At the trial of any person for an offence, sub-sections (2) and (3) below apply unless– (a) the accused’s guilt is not in issue; or (b) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence; but subsection (2) below does not apply if, at the conclusion of the evidence for the prosecution, his legal representative informs the court that the accused will give evidence or, where he is unrepresented, the court ascertains from him that he will give evidence. (2) Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question. (3) Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.” Section 38 (3) adds that: “A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2)...” Section 35(2) of the 1994 Act is the subject of Practice Direction: Crown Court (Defendant’s Evidence) ([1995] 2 Cr.App.R. 192 (Court of Appeal) Guidance) which sets out how the trial judge must ensure in open court that a defendant who decides not to give evidence at trial has been warned (by his counsel) that the jury may draw adverse inferences from this. In R. v. Cowan ([1996] 1 Cr.App.R. 1), Lord Taylor considered the direction that should be given by the trial judge to the jury and emphasised five essential points. “1. The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the standard required is. 2. It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice. 3. An inference from failure to give evidence cannot on its own prove guilt. That is expressly stated in section 38(3) of the Act. 4. Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen. But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case. It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant’s silence. 5. If despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to cross-examination, they may draw an adverse inference.” The Judicial Studies Board specimen direction for the use of trial judges concerning section 35 at the time of the applicant’s trial stated: “The defendant has not given evidence. That is his right. He is entitled to remain silent and require the prosecution to prove its case. You must not assume he is guilty just because he had not given evidence because failure to give evidence cannot, on its own, prove guilt. However, as he has been told, depending on the circumstances, you may take into account his failure to give evidence when deciding on your verdict. 1. In the first place when considering the evidence as it now is, you may bear in mind that there is no evidence from the defendant himself which in any way undermines or contradicts or explains the evidence put before you by the prosecution. 2. In the second place if you think in all the circumstances it is right to do so, you are entitled, when deciding whether the defendant is guilty of the offence(s) charged, to draw such inferences from his failure to give evidence as you think proper. In simple terms, this means that you may hold this failure against him. [There is evidence before you on the basis of which the defendant’s advocate invites you not to hold it against the defendant that he has not given evidence. That evidence is (here set out the evidence). If you think that this amounts to a reason why you should not hold it against the defendant that he has not given evidence, do not hold his silence against him. If, on the other hand, it does not in your judgment provide an adequate explanation for his absence from the witness box, then you may, if you think it right, hold his failure to give evidence against him.] What inference can you properly draw from the defendant’s decision not to give evidence before you? If you conclude that there is a case for him to meet, you may think that if he had an answer to it he would have gone into the witness box to tell you what it is. If, in your judgment, the only sensible reason for his decision not to give evidence is that he has no explanation or answer to give, or none that would have stood up to cross-examination, then it would be open to you to hold against him his failure to give evidence, that is, taken it into account as some additional support for the prosecution’s case. You are not bound to do so. It is for you to decide whether it is fair to do so.” | 0 |
dev | 001-115475 | ENG | AUT | ADMISSIBILITY | 2,012 | OBRIST v. AUSTRIA | 4 | Inadmissible | Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska | 1. The applicant, Mr Christian Obrist, is an Austrian national, who was born in 1954 and lives in Zell am See. 2. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry of European and International Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 3 March 2003 the applicant, a practising lawyer, was served with a decision dated 25 February 2003 by the Zell am See Tax Authority (Finanzamt Zell am See als Finanzstrafbehörde I. Instanz) informing him that proceedings had been initiated against him on suspicion of evasion of both income and turnover tax, through his submission of incorrect declarations of earnings in both the years 1999 and 2001. 5. The panel at the Salzburg Stadt Tax Authority (Spruchsenat beim Finanzamt Salzburg-Stadt) held five hearings, namely on 20 April 2004 and 9 February, 6 April, 14 September and 18 October 2005, of which only the first two were attended by the applicant. The applicant was aware that his former employee, witness X, would be required to testify in the proceedings; however three hearings were postponed when witness X failed to appear. When X finally appeared at the hearing of 18 October 2005 it transpired that the applicant had relied on X’s duty of confidentiality on account of his previous employment contract with the applicant, and X could not then testify. 6. The applicant did not receive a transcript of the hearing. The applicant had not lodged a request to receive the transcript until the hearing was under way. 7. On 18 October 2005 the Tax Authority panel found the applicant guilty of having evaded tax in the amount of almost 51,000 euros (EUR) and ordered him to pay a fine of EUR 20,000, which would be replaced, in the event of default, by a prison term of four weeks. The applicant was, however, acquitted of having evaded turnover tax in 1999. In fixing the amount of the fine, the panel considered the following to be mitigating factors: the applicant’s lack of any prior convictions, his partial payment of the money owed, his confession in respect of part of the charges and the long period of time that had elapsed since the offences had been committed. It did not find any aggravating factors. The written decision of 18 October 2005 was served on the applicant on 18 May 2006. 8. On 19 June 2006 the applicant appealed to the Independent Finance Panel (Unabhängiger Finanzsenat), which delivered its decision orally after a hearing on 6 December 2007. The Independent Finance Panel reduced the amount of the fine to EUR 12,500, with sixteen days’ imprisonment in the event of default. Among the reasons given by the Independent Finance Panel for the reduction of the fine was the applicant’s low income, and it cited the long duration of the proceedings as a further mitigating factor in addition to those already put forward by the Tax Authority panel. On the other hand, it considered that the fact that the applicant was a practising lawyer constituted an aggravating factor. The written decision was served on the applicant on 14 August 2008. 9. The applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof) on 25 September 2008 against the decision of the Independent Finance Panel. In a decision dated 8 October 2008 the Constitutional Court declined to consider the case for its lack of prospects of success and sent it to the Administrative Court (Verwaltungsgerichtshof). The decision of the Constitutional Court was served on the applicant on 14 October 2008. 10. The applicant filed additional observations in support of his complaint to the Administrative Court as requested. On 8 July 2009 the Administrative Court dismissed the applicant’s complaint as ill-founded. It held that the Independent Finance Panel had acted appropriately in taking the unreasonably lengthy duration of the proceedings and the applicant’s poor financial situation into consideration and had set the fine accordingly and in line with the domestic courts’ jurisprudence. It also held that the applicant should have applied to receive a transcript of the hearing by the time it had started, as was provided for by law. 11. The decision was served on the applicant’s counsel on 27 August 2009. 12. The jurisdiction of the tax authorities as regards proceedings relating to tax offences and the conduct of such proceedings are regulated in the Tax Offences Act (Finanzstrafgesetz). 13. In accordance with section 135 of the above-mentioned Act, in force at the relevant time, oral hearings are to be recorded by the court reporter. Its subsection 3 provides that the transcript of the hearing is to be signed by the presiding member of the panel and the court reporter and then handed over to the defendant if he or she has lodged a prior request for it which has to be submitted, at the latest, just after the opening of the oral hearing. 14. Section 33 § 5 of the Tax Offences Act provides, as a maximum penalty for the offence of tax evasion, for the imposition of a monetary fine of double the amount of tax evaded. It also provides for the imposition of a sentence of imprisonment for up to two years. | 0 |
dev | 001-83372 | ENG | BIH | CHAMBER | 2,007 | CASE OF KARANOVIC v. BOSNIA AND HERZEGOVINA | 2 | Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed | Nicolas Bratza | 5. The applicant was born in 1928 and lives in Sarajevo. 6. In 1987 he was granted an old-age pension from the pension fund of the former Socialist Republic of Bosnia and Herzegovina. 7. In 1992 the applicant left his home in Sarajevo, in what is today the Federation of Bosnia and Herzegovina, and moved to what is today the Republika Srpska. While he was internally displaced, he received his pension from the Republika Srpska. 8. Upon his return to Sarajevo in 2000, the applicant unsuccessfully sought to receive his pension from the Federation of Bosnia and Herzegovina. 9. On 28 February 2002 he complained to the Human Rights Chamber. 10. On 6 January 2003 the Human Rights Chamber joined the applicant’s case (no. CH/02/9364) and those of Mr Kličković and Ms Pašalić (nos. CH/02/8923 and CH/02/8924) and adopted a single decision. It was read out at a public hearing on 10 January 2003. Having been taken by the full Chamber, the decision became final immediately. The Human Rights Chamber held that the applicant (together with Mr Kličković and Ms Pašalić) was discriminated against in his enjoyment of the right to social security as guaranteed by Article 9 of the International Covenant on Economic, Social and Cultural Rights. The reasons were set out in the decision which reads, in the relevant part, as follows: “8. In the former Socialist Federal Republic of Yugoslavia (hereinafter “SFRY”), civilian pensions were administered by the six Socialist Republics under their own respective laws and institutions. In addition, the state-level Law on Basic Rights of Pension and Disability Insurance (OG SFRY no. 23/82, 77/82, 75/85, 8/87, 65/87, 87/89, 54/90, and 84/90) granted equal minimum rights to every SFRY citizen and regulated the rights of persons who moved from one Republic to another. 9. Following changes brought about by the armed conflict, pensions in Bosnia and Herzegovina came to be administered by three separate funds: the Social Fund of Pension and Disability Insurance of Bosnia and Herzegovina (hereinafter the “Sarajevo Fund”), the Bureau of Pension and Disability Insurance Mostar (hereinafter the “Mostar Fund”), and the Public Fund of Pension and Disability Insurance of Republika Srpska (hereinafter the “RS Fund”). The Sarajevo Fund and Mostar Fund subsequently merged, following a November 2000 decision by the High Representative, into the Federation PDI Institute (hereinafter the “Federation Fund”), which has been operational since 1 January 2002. Presently there is one pension fund in the Federation and one in the Republika Srpska, and all legislation directly concerning pension systems is made at the Entity level. 10. The basic calculation schemes for determining rights to pension and disability insurance are different in each entity. One result of this has been significantly lower pensions in the Republika Srpska. In March 2002, the average pension in the Federation was 190 [Bosnian markas (BAM)], and the average pension in the Republika Srpska was 120 [BAM]. The minimum pension payment prescribed by law in the Federation of Bosnia and Herzegovina is 140 [BAM], while the minimum pension in the Republika Srpska is 80 [BAM]. 11. The system of pension insurance in Bosnia and Herzegovina, as inherited from the former SFRY, has been based on the “pay/go” principle that salary contributions from current workers support the current pensioners. Thus, money that comes into the system as contributions is immediately paid out as pensions, rather than becoming interest-generating capital from which the interest is paid out as pensions. When the current workers retire, salary contributions from the future generation of workers will finance the current workers’ pensions. Therefore, the pension system as a whole has had the character of a general social insurance system. This is also the case with the current Federation and RS Funds. 12. On 27 March 2000, the Mostar Fund, Sarajevo Fund, and RS Fund entered into the Agreement on Mutual Rights and Obligations in Execution of Pension and Disability Insurance (hereinafter the “Pension Agreement”) (OG RS, no. 15/00, 5 June 2000; OG FBH, no 24/00, 30 June 2000), under which they agreed that the Fund that had made payments to pensioners before the Agreement came into force would continue to pay those pensions regardless of the pensioners’ place of temporary or permanent residence. The Pension Agreement entered into force on 18 May 2000... 13. The RS Fund, with the authorisation of the Republika Srpska government, unilaterally terminated the Pension Agreement in March 2002 (OG RS, no. 10/02, 4 March 2002). According to a June 2002 report by the United Nations High Commissioner for Refugees (hereinafter “UNHCR”), despite its withdrawal from the Agreement, the RS Fund has continued to pay those pensioners already recognised as its beneficiaries. For its part, the Federation Fund has declared that it will continue to follow the Agreement and pay its beneficiaries now living in the Republika Srpska. 14. According to the June 2002 UNHCR report, the absence of harmonised legislation between the two Entities and the lack of state-level legislation regulating pension and other social benefits causes problems for displaced pensioners and returnees. Specifically, these problems arise from the different pension calculation schemes and different pension amounts in each Entity. 15. As a practical matter, a person who retired in Sarajevo and held a pension there before the armed conflict, but later began receiving pension payments from the RS Fund after displacement to the Republika Srpska, would continue, after returning to Sarajevo, to receive the lower pension payment from the RS Fund. Such a returnee, while receiving the smaller RS Fund pension, would also face a higher cost of living in Sarajevo than in the Republika Srpska. Moreover, such a returnee would receive a pension much lower than a person who had made similar pension contributions during their working life but remained in the Federation throughout the armed conflict. 16. Under various inter-state pension benefits agreements, some civil pensioners from the Federation of Bosnia and Herzegovina who moved to other countries during the armed conflict continue to enjoy their full pension rights from the Federation Fund. For example, under the Agreement on Social Insurance Between Bosnia and Herzegovina and the Republic of Croatia (OG BiH Supplement on International Agreements, No. 6/01, 11 October 2001), the responsible domestic insurer is obligated to pay full rights to a pension beneficiary, even if that person is residing in the other contracting state. According to UNHCR, no major problems are reported with regard to refugees from Bosnia and Herzegovina receiving their full pensions in Croatia. As of June 2002, similar agreements had been signed and implemented between Bosnia and Herzegovina and Austria and Turkey, while other such agreements were in the works. According to OHR, users of pensions from Bosnia and Herzegovina were receiving pensions in 23 countries (mostly in Croatia and Germany) in June 2002. ... 87. This disparity leaves no doubt that persons who were internally displaced during the armed conflict are, upon their return, treated differently. Each of the present applicants left Sarajevo in 1992 at the outset of the armed conflict. These applicants now receive smaller pensions simply because they left the Federation for a period of time, not on their own free will, to live in the Republika Srpska. Those who remained enjoy greater pension rights than those who left, even though they may have been identically situated before the armed conflict. 88. Indeed, it appears that the present applicants (and others who were internally displaced and have returned to the Federation) are in a worse position than Federation pensioners who moved to other countries during the armed conflict. Many Federation pensioners who moved to other countries during the armed conflict continue to enjoy full pension rights from the Federation Fund (see paragraph 16 above). 89. Moreover, the prospect of returning to live in the Federation (where the cost of living is higher than in the Republika Srpska) on a smaller RS Fund pension presents a significant obstacle to the return of displaced persons. The present applicants attest to these difficulties, and the Federation, in its observations, admits that they should have been aware of them (see paragraph 45 above). One of the important objectives of the settlement of the conflict in Bosnia and Herzegovina was to facilitate the return of displaced persons (see generally the General Framework Agreement for Peace in Bosnia and Herzegovina, Annex 7). The Chamber considers that displaced person status is a status relevant for the purposes of Article II § 2 (b) [of the Agreement on Human Rights] and further finds that the current situation regarding displaced persons’ pensions is inimical to the goals of Annex 7. The only reason put forward for the different treatment is the Pension Agreement, which, by its terms, makes displaced person status the basis for different treatment. But displaced person status cannot serve as a justification for disparate treatment, especially where, as here, it carries with it a connotation of discrimination on ethnic grounds. Under the circumstances, the Chamber concludes that the different, poorer treatment of the applicants with regard to their pension payments has no objective justification.” The Human Rights Chamber made the following orders: “98. The Chamber finds it appropriate to order the Federation of Bosnia and Herzegovina to take all necessary legislative and administrative actions by 10 July 2003 to ensure that the applicants are no longer discriminated against in their enjoyment of pension rights guaranteed by Article 9 of the International Covenant on Economic, Social and Cultural Rights, particularly in comparison to those pensioners who remained in the Federation during the armed conflict. 99. The Chamber further orders the Federation of Bosnia and Herzegovina to compensate each applicant for the difference between the pension that he or she would be due under the Pension Agreement between the pension funds and the amount the applicant would have received from the Federation Fund, from the date of his or her application to the Human Rights Chamber [i.e. from 28 February 2002] until the date of the Federation’s compliance with the remedy ordered in paragraph 98 [immediately above].” 11. In 2003 (the exact date has not been indicated) the applicant received 1,033.15 Bosnian markas (which corresponds to 528.24 euros) by way of compensation from the Federation of Bosnia and Herzegovina. 12. The applicant still receives his pension from the Republika Srpska. Since the pension legislation has not yet been harmonised between the two Entities, pensions in the Republika Srpska are still generally lower than in the Federation of Bosnia and Herzegovina. Furthermore, pensioners in the Republika Srpska, as opposed to pensioners in the Federation of Bosnia and Herzegovina, do not receive the nominal amount of their pensions, but approximately 80 per cent thereof (this is owing to the financial difficulties of the Entity). 13. The Agreement on Human Rights was signed by Bosnia and Herzegovina and its Entities on 14 December 1995, when it entered into force. The following are the relevant provisions: Article I “The Parties shall secure to all persons within their jurisdiction the highest level of internationally recognized human rights and fundamental freedoms, including the rights and freedoms provided in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols and the other international agreements listed in the Appendix to this Annex... Article II §§ 1 and 2 1. To assist in honoring their obligations under this Agreement, the Parties hereby establish a Commission on Human Rights (the ‘Commission’). The Commission shall consist of two parts: the Office of the Ombudsman and the Human Rights Chamber. 2. The Office of the Ombudsman and the Human Rights Chamber shall consider, as subsequently described: a. alleged or apparent violations of human rights as provided in the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols thereto, or b. alleged or apparent discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status arising in the enjoyment of any of the rights and freedoms provided for in the international agreements listed in the Appendix to this Annex, where such violation is alleged or appears to have been committed by the Parties, including by any official or organ of the Parties, Cantons, Municipalities, or any individual acting under the authority of such official or organ. Article XI § 6 The Parties shall implement fully decisions of the Chamber.” 14. On 10 November 2000 the Parties to the Agreement on Human Rights extended the mandate of the Human Rights Chamber until 31 December 2003. On the latter date the Human Rights Chamber and the Constitutional Court of Bosnia and Herzegovina merged. Special chambers were created within the Constitutional Court on an interim basis with a mandate to decide on cases received by the former Human Rights Chamber. From 1 January 2004 until 31 December 2006, the special chambers were named the “Human Rights Commission within the Constitutional Court” (see the agreement of 25 September 2003 published in the Official Gazette of Bosnia and Herzegovina (“OG BH”) no. 35/03 of 12 November 2003). Although the special chambers continued operating thereafter, they were no longer named the “Human Rights Commission within the Constitutional Court” (see the agreement of 16 January 2007 published in OG BH no. 43/07 of 11 June 2007). The special chambers were also entrusted with a mandate to examine complaints about non-enforcement of the decisions of the former Human Rights Chamber and to issue declarations in this connection (see Rule 62 of the Rules of Procedure published in OG BH no. 23/05 of 19 April 2005 and Rule 56 of the Rules of Procedure published in OG BH no. 38/07 of 22 May 2007). The declarations at issue certify that a decision of the former Human Rights Chamber was not fully enforced without affording any redress. 15. In accordance with Article 239 of the Criminal Code 2003 (Krivični zakon Bosne i Hercegovine; published in OG BH nos. 3/03 of 10 February 2003 and 37/03 of 22 November 2003; amendments published in OG BH nos. 32/03 of 28 October 2003, 54/04 of 8 December 2004, 61/04 of 29 December 2004, 30/05 of 17 May 2005, 53/06 of 13 July 2006, 55/06 of 18 July 2006 and 32/07 of 30 April 2007), non-enforcement of a final and enforceable decision of the Human Rights Chamber amounts to a criminal offence: “An official of the institutions of Bosnia and Herzegovina, of the Entities or of the Brčko District of Bosnia and Herzegovina, who refuses to enforce a final and enforceable decision of the Constitutional Court of Bosnia and Herzegovina, of the Court of Bosnia and Herzegovina or of the Human Rights Chamber of Bosnia and Herzegovina, or who prevents the enforcement of any such decision, or who frustrates the enforcement of the decision in some other way, shall be punished by imprisonment for a term between six months and five years.” | 1 |
dev | 001-23719 | ENG | NLD | ADMISSIBILITY | 2,004 | VERHOEK v. THE NETHERLANDS | 4 | Inadmissible | null | The applicant, Mr Johan Verhoek, is a Netherlands national, who was born in 1954 and has no known fixed abode in the Netherlands. He is represented before the Court by Mr M. Moszkowicz Sr., a lawyer practising in Maastricht. The facts of the case, as submitted by the applicant, may be summarised as follows. In 1991 a combined fiscal and criminal investigation under the code name Kolibrie (hummingbird) was opened into a criminal organisation allegedly engaged in large-scale shipment of drugs from Pakistan to the Netherlands, the Azores and Canada. For this purpose an investigation team was created composed of police officers, fiscal investigation officers and public prosecutors (the Kolibrie-team). Over the years numerous witnesses and suspects were questioned, requests for mutual legal assistance were made to, inter alia, Paraguay, Sweden, the Bahamas, Spain and Switzerland, rafts packed with drugs were seized in Canada, a search operation was carried out in co-operation with the navy and barrels filled with drugs were salvaged by divers off the coast of the Azores. The investigation concentrated, inter alia, on the following shipments: the shipment of about 20,000 kilograms of marihuana to the Netherlands aboard the Aquarius/Moana B; the shipment of about 60,000 kilograms of marihuana to the Netherlands and Canada aboard the Lukas; the shipment of about 120,000 kilograms of marihuana to Canada and the Azores aboard the Pacific Tide/Giant 4. In June 1993 a certain K., who was under investigation for his alleged participation in the Pacific Tide/Giant 4 shipment, gave a statement to a Netherlands public prosecutor about one of these shipments. At the time he was being detained in France, where he had been convicted of involvement in another shipment of drugs. He indicated that he was willing to make further statements in exchange for an early extradition to the Netherlands. After he had served his prison sentence in France, K. spent several months in detention pending extradition and in July 1995 he arrived in the Netherlands. He was detained on remand on suspicion of participation in the above-mentioned shipments of drugs. He made further statements to the police. Seven of these statements consisted of falsehoods. According to K., his statements contained falsehoods because he did not trust his lawyer. In August 1995 a written agreement was concluded between K. and the public prosecutors T. and W. According to the agreement, K. undertook to make truthful statements about the criminal offences of which he had knowledge without relying on his right to remain silent and to testify before a judge if requested to do so. In exchange for his statements he was released from detention on remand and was given an undertaking that if the prison sentence imposed on him exceeded the time he had already spent in detention pending extradition and detention on remand, the sentence would not be executed. Furthermore, the public prosecution service (openbaar ministerie) undertook to take appropriate measures to safeguard his safety as far as possible. If K. reneged on his obligations, the prosecution service reserved the right to use his statements and would no longer be bound to comply with its part of the agreement. Thereupon, K. continued to make detailed statements about the preparation for and the carrying out of the shipments of drugs as well as about the people involved, including himself and the applicant. In 1995 the lawyers of a certain A., a suspect in the Kolibrie investigation, contacted the public prosecution service. A. was aware of the fact that he was under investigation in the Netherlands and indicated that he was interested in talking to the prosecution service. An agreement between A. and the public prosecutors T. and W. was concluded and was consigned to writing. A. undertook to make truthful statements about the criminal offences of which he had knowledge without relying on his right to remain silent and to testify before a judge if requested to do so. In exchange, he was enabled to trade off any criminal prosecution in the Netherlands in respect of the criminal offences to which he had confessed by making a payment of 1,800,000 Netherlands guilders (NLG) (820,000 euros (EUR)). The public prosecution office undertook to inform the authorities of several other countries about A.’s co-operation. The prosecution service reserved the right to use A.’s statements and not to comply with its part of the agreement if A. reneged on his obligations. A. made 23 statements about the organisation of the drugs shipments and the people involved, including himself and the applicant. The first seven statements contained demonstrable falsehoods. K. and A. were also questioned by the United States Drugs Enforcement Administration (“DEA”) about several shipments of drugs. In January 1996 the applicant, who was by then suspected of being one of the ringleaders of the criminal organisation responsible for the shipments, was arrested and detained on remand. The applicant was charged with membership of a criminal organisation and participation in the shipment of drugs aboard the Aquarius/Moana B, the Lukas and the Pacific Tide/Giant 4. Between 22 April 1996 and 24 January 1997, 29 hearings were held before the Regional Court (arrondissementsrechtbank) of Amsterdam. On 7 February 1997 the Regional Court convicted the applicant of all charges and sentenced him to six years’ imprisonment. The applicant lodged an appeal and between 20 June 1997 and 16 January 1998, 20 hearings were held before the Court of Appeal (gerechtshof) of Amsterdam. In the course of the proceedings before the Regional Court and the Court of Appeal the following relevant events occurred: K. and A. were questioned extensively before the investigating judge, before the Regional Court and before the Court of Appeal about their motives for testifying, about the falsehoods in their initial statements, about the agreements reached with the public prosecution service and about the contents of their statements. K. was also questioned about the course of events during his imprisonment in France in 1993. Both K. and A. claimed the right to remain silent in respect of certain questions put by the defence. After having heard the arguments of K. and A. as well as the submissions of the defence and of the prosecution, the domestic courts ordered that K. and A. answer most of these questions. They were excused from answering some questions relating to their contacts with the DEA and their financial situation, since replying to these questions was considered likely to incriminate or endanger them. Numerous other witnesses were questioned, inter alia, business and personal contacts of K. and A., about the latter witnesses’ reliability and credibility. A French investigating judge was questioned about K.’s situation in 1993. Furthermore, two law professors and an expert who had made a comparative law study on agreements with witnesses were extensively questioned by the Regional Court about all manner of legal issues relating to this kind of agreement. The public prosecutors T. and W. were questioned before the Court of Appeal about the course of the investigation, the agreements with K. and A. and their contacts with several other witnesses. The Court of Appeal rejected the defence’s request to question Maître Chégin, K.’s lawyer in France in 1993, being of the opinion that his testimony could not have any bearing on any decision to be taken in the case against the applicant. The Court of Appeal reasoned in this connection that the questions which the defence wanted to put to him concerned the agreement concluded between K. and the public prosecution service in August 1995, whereas Maître Chégin had been K.’s lawyer in 1993. In the course of the proceedings before the Regional Court it became clear that the public prosecution service and K.’s lawyer, Van G., had been in contact and had exchanged correspondence relating to various financial aspects of the agreement concluded between the public prosecution service and K. Part of this correspondence was added to the case file and K., the public prosecutors T. and W. as well as Van G. were questioned before the Court of Appeal about their correspondence. During the hearings and in their pleadings before the Regional Court and the Court of Appeal, the defence extensively challenged the lawfulness of the agreements and their contents, sought to cast doubt on the credibility of the witnesses K. and A. and complained about the withholding of information relating to the financial aspects of the agreement with K. and the fact that the witnesses had been excused from answering certain questions in spite of the condition in the agreements that they would not invoke their right to remain silent. The defence further alleged that the prosecution had acted in bad faith and had tried to mislead both the defence and the judges on several occasions. In a judgment of 30 January 1998 the Court of Appeal quashed the Regional Court’s decision, convicted the applicant on all charges and sentenced him to five years and six months’ imprisonment and a fine of NLG 1,000,000 (EUR 453,000). The judgment contained a lengthy legal analysis of the compatibility of the agreements concluded between the public prosecution service and the witnesses K. and A. with Netherlands law, the political developments on this issue, the principles of proper conduct of proceedings and the requirements of Article 6 of the Convention. The Court of Appeal concluded that the agreements were permissible and lawful except for the undertaking made to K. to the effect that he would not have to serve a possible prison sentence. The Court considered: “The public prosecution service is free to make decisions about the investigation and prosecution of criminal offences, including the giving of an undertaking to demand that a certain penalty be imposed. The public prosecution service is not free to assume the authority that any penalty which might be imposed on K. by a judge would not have to be executed... The decision to include this undertaking in the agreement with K. is thus ... not lawful. This unlawfulness ... however, is not of such a nature that the prosecution case against the applicant should be declared inadmissible. The present criminal proceedings are characterised by the fact that, for the first time, the conclusion of agreements with co-suspects has been submitted for the full consideration of a judge. No plausible grounds have been made out for concluding that the public prosecution service acted in bad faith, and thus intentionally breached the law, merely in order to frustrate the interests of the integrity of criminal proceedings. Nor have plausible grounds been made for concluding that the public prosecution service entered into the impugned undertaking with the purpose of acting in contempt of the decision of the judge in the present case.” Although it decided that the prosecution of the applicant was not barred, the Court of Appeal considered that the unlawful undertaking made to K. was one of the factors which should lead to a reduction of his sentence from the seven years’ imprisonment it would have imposed, to five years and six months. The Court of Appeal considered that the remainder of the agreements was permissible under Netherlands law and that the conclusion of the agreements had neither violated the principles of the proper conduct of proceedings nor the applicant’s right to a fair trial. It proceeded to examine whether the statements of K. and A. could be used in evidence: “The extent to which the statements of K. and A. may be used in evidence nevertheless requires further examination. It has to be examined whether K. and A. made their statements in the absence of pressure or constraint. Partly in view of the agreements underlying the statements, consideration should also be given to the question whether the defence had the opportunity adequately to scrutinise the statements of K. and A. Such further examination is also necessary because the reliability and credibility of the statements of K. and A. may have been adversely affected by what they felt obliged to do or by what they deemed was in their own best interests, given the contents of the agreements with the public prosecution service. In addition, it should be borne in mind that these witnesses stand accused of offences relating to more or less the same set of facts as the defendant.” Accordingly, the Court of Appeal went on to examine closely the reliability of K. and A. and the credibility of their statements. In this context, it had regard to the position and personality of both K. and A., the possibilities which the defence had had to examine their statements, the contents of these statements, the other evidence, the impression both witnesses had given the court as well as the applicant’s response to K.’s and A.’s statements. The Court of Appeal considered that their statements were detailed and disclosed concrete reasons for their knowledge. Although K. and A. did not know each other, their statements corresponded and were corroborated by the statements of four other witnesses as well as by other evidence. The Court of Appeal also considered that the applicant had not submitted any facts to challenge the statements of K. and A. Taking these considerations into account, and stating explicitly that this matter had to be treated with particular caution (bijzondere behoedzaamheid), the Court of Appeal found that the statements made by K. and A. were reliable and credible. The Court of Appeal further considered: “[The] principles of the proper conduct of proceedings imply above all that the defence, confronted with an agreement concluded by the public prosecution service with a witness, be given complete disclosure – with a view to the exercise of the rights of the defence – about the existence of the agreements, the manner of their conclusion as well as their contents, and also that the defence be given every opportunity to challenge the manner of conclusion and the contents of the agreements. These requirements have been completely met. The existence of the agreements and the identity of K. and A. were disclosed from the outset. The agreements were put down in writing and were included in the case file together with all relevant documents. In the presence of the defence, K. and A. have been questioned as witnesses on this issue at every stage of the proceedings, and [the prosecutors] T. and W. have been questioned about it at the trial on appeal. It has appeared that no relevant difference of opinion exists between the prosecutors and K. and A. about the meaning of the agreements and the way in which they were concluded. Even apart from that, the defence has been enabled to obtain all necessary information concerning the agreements.” With regard to the complaint that information about the negotiations between the public prosecution service and K.’s lawyer concerning the financial aspects of the agreement had initially been withheld, the Court of Appeal considered that the applicant had been able to raise this issue both before the Regional Court and the Court of Appeal and to have it examined fully: part of the correspondence between the public prosecution service and Van G. had been added to the case file and counsel for the defence had been able to question K., Van G. and the public prosecutors W. and T. on this issue. The allegation that the prosecution had intentionally misrepresented the amount of the financial reward promised to K. as well as the contents of the negotiations was dismissed as being implausible. The Court of Appeal further dismissed as unfounded a number of other accusations made by the defence to the effect that the public prosecution service had intentionally violated the rights of the applicant. It convicted and sentenced the applicant as set out above. Apart from the statements made by K. and A., the Court of Appeal also relied on the statements of nine other witnesses, financial documents, several official reports of police officers and the results of the examination of samples of drugs. The applicant lodged an appeal on points of law with the Supreme Court (Hoge Raad), submitting an extensive statement of grounds of appeal. The Supreme Court gave judgment on 6 April 1999. It dismissed the appeal in its entirety. In response to seven complaints concerning the contents and conclusion of the agreements with K. and A., and with reference to its own case-law (decision of 30 June 1998, Nederlandse Jurisprudentie – Netherlands Law Reports – 1998, no. 799) and to a number of Commission decisions (X. v. the United Kingdom, no. 7306/75, Commission decision of 6 October 1976, Decisions and Reports 7, p. 115; Salmon Meneses v. Italy, no. 18666/91, Commission decision of 30 November 1994, unreported; and Flanders v. the Netherlands, no. 25982/94, Commission decision of 15 January 1996, unreported), the Supreme Court reiterated that, as long as the conclusion of agreements was not regulated by law, the question to be examined was whether the actual circumstances of every case were compatible with the fundamental rights of an accused as guaranteed by Article 6 of the Convention and with the principles of the proper conduct of proceedings derived from, inter alia, Article 6 of the Convention. Noting that the reliability of statements of a suspect in exchange for promises by the prosecution may be adversely affected by what a witness feels obliged to do or by what he or she deems to be in their own best interest, it considered that this kind of witness should be questioned by a judge, preferably in open court, and, where the credibility of a witness was challenged, it should appear clearly from the trial courts’ judgments that this issue had been examined. The Supreme Court upheld the decisions of the Court of Appeal regarding the agreements and dismissed ten other complaints, adopting mainly summary reasoning. In the early 1990s serious concerns arose over the methods of criminal investigation used in cases concerning organised crime. A parliamentary commission of inquiry (parlementaire enquêtecommissie) was instituted, which presented its final report on 1 February 1996. In this report agreements concluded with suspects testifying against co-accused were criticised. The commission was of the opinion that these kinds of agreements should be explicitly regulated by law and should in no event be allowed to lead to complete immunity from prosecution. The Minister of Justice subscribed to this opinion and legislation is now under preparation to regulate agreements with criminal witnesses. Article 29 of the Code of Criminal Procedure (Wetboek van Strafvordering), insofar as relevant, provides that a suspect is not obliged to reply to questions put to him or her by a judge or investigating officer. Article 219 of the Code of Criminal Procedure provides that a witness is allowed to refrain from answering questions if replying to those questions would expose him or her to the risk of a criminal conviction. | 0 |
dev | 001-87892 | ENG | RUS | CHAMBER | 2,008 | CASE OF PROTSENKO v. RUSSIA | 2 | No violation of Art. 6-1 | Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | 5. The applicant was born in 1951 and lives in Taganrog, the Rostov Region. 6. On 12 March 2003 the applicant purchased a recreation centre (“the centre”), comprising a group of cottages, from a private company. The centre was situated on a plot of land belonging to a collective farm. 7. The applicant asked the Registration Office to register the transfer of the title to the centre from the company to her. However, the applicant’s request was dismissed, because the company had not duly registered its title to the centre, and therefore was unable to transfer it to the applicant. 8. The applicant brought proceedings against the company seeking to obtain acknowledgement of her title to the centre. 9. On 7 April 2003 the Neklinovskiy District Court of the Rostov Region granted the applicant’s claim. 10. No ordinary appeal was lodged against the judgment. 11. On 18 April 2003 the judgment became final and enforceable. 12. On 23 June 2003 the Registration Office registered the applicant’s title to the centre. 13. On an unspecified date in 2003 the collective farm lodged an application for supervisory review of the judgment of 7 April 2003. It alleged that the said judgment was unfounded since, even though the collective farm owned the plot on which the centre in question was situated, it had not been invited to take part in the proceedings and its interests had not been taken into consideration by the domestic court. 14. On 3 December 2003 the Rostov Regional Court remitted the supervisory-review application for examination on its merits by the Presidium. 15. On 25 December 2003 the Presidium of the Rostov Regional Court held a supervisory-review hearing. It held that the first-instance court adopted the judgment with significant violations of substantive and procedural law. In particular, the Presidium pointed out that the first-instance court did not investigate that it failed to identify all the parties to the proceedings, to invite the owner of the land to participate in the proceedings and that it had pronounced judgment by which the rights of the latter were considerably affected. On these grounds the Presidium quashed the judgment of 7 April 2003 and remitted the matter for a fresh examination. 16. On 25 January 2005 the Neklinovskiy District Court of the Rostov Region dismissed the applicant’s claim, declared the purchase agreement void, annulled the registration of the applicant’s title to the centre and restored the parties to their original position. 17. On 30 March 2005 the Rostov Regional Court upheld the above judgment on appeal. 18. The Code of Civil Procedure of the Russian Federation (“the new Code”) was enacted on 14 November 2002 and replaced the RSFSR Code of Civil Procedure (“the old Code”) from 1 February 2003. It provides as follows: “1. Judicial decisions that have become legally binding, with the exception for judicial decisions by the Presidium of the Supreme Court of the Russian Federation, may be appealed against ... to a court exercising supervisory review, by parties to the case and by other persons whose rights or legal interests have been adversely affected by these judicial decisions. 2. Judicial decisions may be appealed against to a court exercising supervisory review within one year after they became legally binding ...” “Judicial decisions of lower courts may be quashed or altered by way of supervisory review on the grounds of substantial violations of substantive or procedural legal provisions.” “1. Having examined the case by way of supervisory review, the court may ... (2) quash the judicial decision issued by a court of first, second or supervisory-review instance in whole or in part and remit the matter for a fresh examination; ... (5) quash or alter the judicial decision issued by a court of first, second or supervisory-review instance and issue a new judicial decision, without remitting the matter for a fresh examination, if substantive legal provisions have been erroneously applied or interpreted.” | 0 |
dev | 001-67930 | ENG | ITA | CHAMBER | 2,005 | CASE OF SCIACCA v. ITALY | 1 | Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award | Nicolas Bratza | 6. The applicant was born in 1949 and lives in Syracuse. 7. She was a teacher at a private school in Lentini (Syracuse). The school was owned by a limited liability company, G., of which the applicant and three other teachers were members and Mr G. the manager. 8. In July 1998 Mrs C. lodged a criminal complaint with the Revenue Police (Guardia di Finanza) about irregularities in the management of the school's affairs. She stated that she was a de facto member of G. 9. The Syracuse public prosecutor's office opened an investigation in respect of the members and manager. On 20 July 1998 the Revenue Police searched the company's head office and the members' homes. At that time the applicant received official notification that she was under investigation. On an unspecified date the public prosecutor's office ordered the applicant to be questioned and informed her that she and the other persons charged were suspected of committing extortion, fraud and forgery. On 12 August 1998 the Revenue Police questioned the applicant. 10. On 17 November 1998 the public prosecutor's office asked the investigating judge to issue an arrest warrant against the applicant and certain other persons on charges of criminal association, tax evasion and forgery of official documents. On 28 November 1998 the investigating judge ordered Mrs Sciacca and the other persons charged to be placed under house arrest. 11. On 4 December 1998 the applicant was served with the judge's decision. Like anyone placed under house arrest, she avoided being remanded in custody. However, the Revenue Police compiled a file on her; photographs and fingerprints were included in it. On the same day the deputy public prosecutor responsible for the investigation and officers from the Revenue Police gave a press conference. 12. Two newspapers published articles about the investigation. 13. The first daily, Giornale di Sicilia, published two articles, on 5 and 6 December 1998. In the first one it referred to “alleged formal and substantive illegalities in the management of a private school”. After stating that the applicant and three others, who had been placed under house arrest, had been charged with very serious offences (criminal association, extortion, forgery, fraud and tax evasion), the newspaper indicated that other persons charged “were allegedly also” victims of acts of extortion committed by the four people who had been arrested. After outlining the measures taken by the investigators, the newspaper stated that the four people who had been placed under house arrest “were allegedly” the de facto managers of the school. The newspaper went on to explain what the extortion had consisted of. It added that “unofficial accounts had been found at the home of the four people concerned” and that “the investigators had found that the pupils enrolled” in two classes “were in fact the husbands and cousins of the women who had been arrested”. The only passage reporting the investigators' statements concerned someone other than the applicant. 14. The other article – published on the following day together with a photograph of the four arrested women – was similar in content to the first one. 15. On 5 December 1998 the second daily, La Sicilia, published on the front page a photograph (identity format) of the four people who had been placed under house arrest and stated that they “had set up a bogus school”. The contents of the article were comparable to those of the articles published in the first daily. 16. The applicant's photograph, together with that of the three other women who had been arrested, was published four times on 5 and 6 December 1998. Each time it was an identity photograph that had been taken by the Revenue Police when the file was compiled, at the time of the applicant's arrest, and released by them to the press. 17. On 12 December 1998 the applicant challenged the order placing her under house arrest in the tribunale della libertà (a court with jurisdiction to examine preventive measures) of Catania. On 28 December 1998 the court ordered the applicant to be released on the ground that it was no longer necessary for the purposes of the investigation to keep her under house arrest. 18. On 1 March 1999 the public prosecutor's office requested the applicant to be committed for trial. The case was listed for hearing before the investigating judge on 26 May 1999. However, the applicant waived her right to that phase and asked to be tried by the court in accordance with a shortened form of procedure. The case was therefore set down for hearing before the Syracuse Court on 6 June 2000. 19. On 8 March 2002 the case ended with the special procedure for imposition of the penalty agreed between the applicant and the prosecution (Article 444 of the Code of Criminal Procedure – “the CCP” (applicazione della pena su richiesta delle parti)), namely, one year and ten months' imprisonment and a fine of 300 euros. 20. The parties did not provide the Court with any indication as to possible legislation governing the photographing of persons charged or arrested and placed under house arrest without being imprisoned and the release of such photographs to the press. Presidential Decree no. 431 of 29 April 1976 sets forth the implementing regulations in respect of Law no. 354 of 26 July 1975 on the administration of prisons. With regard to persons charged who have been arrested and imprisoned, paragraphs 1 and 2 of Regulation 26 of the implementing regulations provide as follows: “A personal file shall be compiled on anyone detained or confined as soon as he or she is imprisoned. The file shall follow the person concerned whenever he or she is transferred and shall be stored in the archives of the prison that releases him or her. The ministry shall be informed that the file is being stored. The references of this personal file shall include civil-status particulars, fingerprints, photographs and any other item necessary for the exact identification of the person.” It is clear from paragraph 5 of that regulation that the compilation of a personal file also concerns persons placed in pre-trial detention. 21. Law no. 121 of 1 April 1981 concerns the new rules relating to public safety. The relevant provisions of this Law read as follows: Section 6 – Coordination and direction of the police forces “With a view to implementing the guidelines issued by the Minister of the Interior on exercising the functions of coordination and unitary direction in respect of order and public safety, the Department of Public Safety shall carry out the following tasks: (a) classification, analysis and assessment of information and data that have to be provided by the police forces as well for the prevention of disorder and the protection of public safety and for the prevention and punishment of crime, and distribution to the operational services of the above-mentioned police forces; ... ” “The information and data referred to in section 6, paragraph (a), must relate to information taken either from documents which are stored in one way or another by public authorities or departments or from judgments or decisions by a judicial authority or from documents relating to the criminal investigation and available in accordance with Article 165 ter of the Code of Criminal Procedure or from police inquiries. In all cases it is forbidden to gather information and data on a citizen solely on the ground of his or her race, religion, political opinions or adherence to the principles of a trade union, cooperative, charitable or cultural movement or on account of any lawful activity carried on by him or her as a member of an organisation lawfully engaged in one of the above-mentioned spheres. ...” | 1 |
dev | 001-102902 | ENG | UKR | COMMITTEE | 2,011 | CASE OF PROKOPENKO v. UKRAINE | 4 | Violation of Art. 6-1;Violation of Art. 5-3 | Mirjana Lazarova Trajkovska;Rait Maruste;Zdravka Kalaydjieva | 4. The applicant was born in 1973 and lives in the town of Konotop, Ukraine. 5. The applicant worked as a customs officer at the Konotop railway border checkpoint. 6. According to the records provided by the Government, on 18 February 2002 criminal proceedings were instituted against the applicant in connection with one episode of smuggling forty electronic devices of the same type, intended for military use. On 9 October 2002 and 18 November 2002 criminal proceedings were instituted against Mr K. and Ms T., respectively, in connection with the same episode of smuggling. 7. On 7 October 2002 the applicant was arrested on the suspicion that he had committed the above crime. On 10 October 2002 the Shevchenkivsky District Court of Kyiv ordered the applicant’s detention on remand relying on the suspicion that he had committed a crime punishable by imprisonment. It also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that he might leave Ukraine and obstruct the investigation. 8. On 22 November 2002 the proceedings against the applicant, Mr K. and Ms. T. were joined. 9. On an unspecified date in March 2003 the applicant’s criminal case was sent to the Konotop Court for consideration. 10. On 4 April 2003, 22 August 2003, and 10 October 2003 the Konotop Court dismissed the applicant’s requests for release, having found that the detention on remand had been ordered at the investigation stage in accordance with law and that there was no reason to replace it with another preventive measure. 11. On 8 December 2003 the Konotop Court convicted the applicant of smuggling, abuse of authority and tax evasion. The court sentenced the applicant to eleven years’ imprisonment. 12. On 15 April 2004 the Sumy Regional Court of Appeal quashed that judgment and remitted the case for a new consideration to the Krolevetsky Court. By the same ruling, the court of appeal continued the applicant’s remand in custody without indicating any reason. 13. On 5 May 2004 the Supreme Court rejected the applicant’s and Mr K.’s requests for leave to appeal in cassation against the decision of 15 April 2004. 14. On 7 December 2004 the applicant lodged a request for release which was dismissed the same day. The Krolevetsky Court found that the detention on remand had been ordered at the investigation stage in accordance with law and that there was no reason to replace it with another preventive measure. 15. On 20 January 2005 the Krolevetsky Court ordered an expert examination of the smuggled devices. 16. On 11 April 2005 the applicant lodged a request with the trial court asking the court to lift the preventive measure of detention. On 14 April 2005 the court dismissed his request, having found that the detention on remand had been ordered at the investigation stage in accordance with law and that there was no reason to replace it with another preventive measure. 17. On 30 January 2006 the expert report was sent to the court. 18. According to the records provided by the Government, between 15 April 2005 and 31 March 2006 the Krolevetsky Court scheduled no hearings. 19. On 12 May 2006 the Krolevetsky Court convicted the applicant of smuggling, abuse of authority and tax evasion. The court sentenced the applicant to four years’ imprisonment with confiscation of his movable property. 20. On 10 August 2006 the Sumy Regional Court of Appeal upheld the judgment of 12 May 2006 with minor amendments. 21. On 8 May 2007 the Supreme Court rejected the applicant’s request for leave to appeal in cassation. 22. While the criminal proceedings against the applicant were pending, the applicant unsuccessfully sought institution of criminal proceedings against the persons who prepared the expert reports in his criminal case. 23. Provisions of the Code of Criminal Procedure of 28 December 1960 on preventive measures are set out in Nevmerzhitsky v. Ukraine (no. 54825/00, § 54, ECHR 2005II (extracts)). | 1 |
dev | 001-102943 | ENG | HRV | CHAMBER | 2,011 | CASE OF SKENDŽIĆ AND KRZNARIĆ v. CROATIA | 3 | Remainder inadmissible;Violation of Art. 2 (procedural aspect);Non-pecuniary damage - award | Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 4. The applicants were born in 1957, 1985 and 1982 respectively and live in Otočac. 5. On 3 November 1991, during the Homeland War in Croatia, an arrest warrant, signed by the then head of Otočac police station (Policijska postaja Otočac) J.O., was issued in respect of M.S., the first applicant's husband and the second and third applicants' father, born on 23 June 1948 and of Serbian ethnic origin, who was suspected of having committed the criminal offence of terrorism. On the same day two police officers from the station, D.R. and J.R., went to the applicants' flat in Otočac and arrested M.S., who was taken to J.O. 6. On the same day, at an unspecified time, two other police officers from the same police station, D.V. and M.Č., took M.S. to the Police Department of the nearby town of Gospić and handed him over to I.O., the Head of the Gospić Operational Headquarters (Operativni štab Gospić). They saw I.O. handcuffing M.S. and then went back to Otočac. The whereabouts of M.S. have remained unknown ever since. 7. At the request of his family, M.S. was presumed dead from 2 November 1996 onwards by virtue of a decision of the Otočac Municipal Court (Općinski sud u Otočcu) of 26 March 1998. 8. The applicants allege that in the same period a number of individuals of Serbian ethnic origin had disappeared or had been killed in the area around the nearby town of Gospić. 9. In the days following the arrest of her husband by the police, the first applicant telephoned the local authorities in Otočac and Gospić on numerous occasions to enquire about his fate, but to no avail. 10. On 17 December 1991, after the first applicant had made enquiries to the Ministry of the Interior (the “Ministry”) regarding her husband, the Ministry sent an official letter to Otočac police station enquiring as to the whereabouts of M.S. since his arrest on 2 November 1991. On 18 December 1991 J.O. replied that M.S. had been arrested on 3 November at 11 a.m. and taken to Gospić County Prison (Okružni zatvor Gospić) the same day. 11. On 20 December 1991 the Ministry sent an official letter to the Gospić Police Department enquiring as to M.S.'s whereabouts. 12. On 21 December 1991 the Gospić Police Department replied that M.S. had been arrested by officers from Otočac police station and that the Gospić Police Department had not been informed of his arrest. They further stated that, to their knowledge, M.S. had been taken to Zagreb County Prison (Okružni zatvor Zagreb). Further to this, on 11 January 1992 the Gospić Police Department informed the Ministry that M.S. had never been detained in Gospić County Prison. 13. On 27 October 1992 the Ministry sent a letter to both Otočac police station and the Gospić Police Department enquiring as to the whereabouts of M.S. and whether he had been listed as a missing person. 14. On 29 October 1992 M.Č., one of the above-mentioned police officers from Otočac police station, drew up a report stating that after he had been arrested on 3 November 1991 M.S. had been taken to the Gospić Operational Headquarters and handed over to its head, I.O. He also stated that there was no further information as to M.S.'s whereabouts. 15. On 14 July 1999 the first applicant sent a letter to the Minister of Justice calling for an official investigation into the disappearance of her husband. On 4 February 2000 the letter was forwarded to the State Attorney with a request that appropriate steps be taken. The first applicant was served with a copy of that request, but received no further information. 16. The first applicant sent a second letter to the Ministry of Justice on 23 May 2000 seeking information about the steps taken in order to establish the circumstances of her husband's disappearance. 17. On 7 July 2000 the Gospić County State Attorney's Office (Županijsko državno odvjetništvo u Gospiću) ordered investigative measures in connection with the disappearance of M.S. and asked the Otočac police to conduct an interview with former police officer D.R. and former head of the police station J.O. about the disappearance of M.S. The Otočac police interviewed D.R. on 10 July 2000. He said that in the autumn of 1991 he and another police officer, J.R., had arrested M.S. in his flat in Otočac pursuant to an arrest warrant issued by J.O. They had taken M.S. to J.O. and left. 18. On 11 July 2000 the Otočac police informed the Gospić County State Attorney's Office that they had not been able to interview J.O. because he had moved to Zagreb. 19. In a letter sent to the Ombudsman on 2 February 2001, the first applicant complained that no action was being taken in respect of the inquiry into the fate of her husband. On 13 March 2001 the Ombudsman's Office asked the applicant to explain what exactly her request was. 20. On 14 June 2002 police officer, D.R., since retired, was interviewed at Otočac police station. He said that in November 1991 he had been a police officer at that station and that during that period M.S. had been brought to the premises of Otočac police station, where he had been briefly detained and then transferred to Gospić by two police officers, M.Č. and D.V. 21. On 15 June 2002 J.R., the aforementioned police officer from Otočac police station, made a written statement that on 3 November 1991 he and another police officer, D.R., had executed an arrest warrant and arrested M.S. in his flat in Otočac. They had handed him over to J.O. and left. 22. On 18 June 2002 former police officer D.V. was interviewed at Otočac police station. He said that he could not remember a person named M.S. but did remember having on one occasion, together with his colleague M.Č., driven an official police vehicle to Gospić, but could not say for what purpose. 23. The Otočac police informed the Gospić Police Department of the result of the interviews on 19 June 2002 and the Gospić County State Attorney's Office on 26 June 2002. 24. On 9 February 2004 the first applicant officially registered M.S. with the Otočac police as a missing person. On 19 March 2004 the Otočac police informed the Gospić police that M.S. had been listed as a missing person and asked them to carry out an inquiry because M.S. had disappeared on the territory under their jurisdiction. On 30 March 2004 the Gospić police asked the Gospić Prison authorities whether they had a record of M.S. having been detained there in November 1991 and whether I.O. had had any function at Gospić Prison at that time. 25. On 1 April 2004 the Gospić Prison authorities informed the Gospić police that M.S. had never been registered as having entered that prison and that I.O. had had no function at the prison, but had been head of the Gospić Operational Headquarters. 26. On 8 April 2005 the Gospić police asked the Ličko-Senjska Police Department (Policijska uprava ličko-senjska – the former Gospić Police Department) to request the Zagreb Police Department to interview I.O., who was now living in Zagreb. On 16 April 2004 the Ličko-Senjska Police Department duly made that request. 27. On 22 April 2004 the Zagreb Police Department interviewed I.O. He stated that during the Homeland War in Croatia, as an officer in the Croatian Army, he had arrived in Gospić on 30 August 1991 and left sometime at the end of September 1991. He had no knowledge of the arrest and disappearance of M.S. 28. On 7 May 2004 the first applicant asked the State Attorney to take steps in order to establish the whereabouts of her husband. 29. In May 2004 the State Attorney sent a letter to the Rijeka County State Attorney's Office (Županijsko državno odvjetništvo u Rijeci) stating that in September 2000 his office had already forwarded to the Rijeka Office a request that an investigation be carried out into the death of M.S., in particular in connection with the criminal proceedings opened in 1999 against a certain T.O. and other persons. The first applicant's submissions from 2000, in which she stated that she had received no information in reply to her enquiry about the circumstances of her husband's death, were enclosed. The State Attorney requested all information about M.S. that had been obtained during the investigation concerning T.O. and his accomplices. A copy of this letter was served on the first applicant. 30. On 3 June 2004 the Gospić County State Attorney's Office informed the Ličko-Senjska Police Department about the interview with I.O. and also said that the records of the Military Police Administration showed that I.O. had not been on their payroll. 31. On 18 June 2004 the Zagreb Police Department interviewed J.O. He stated that from September 1991 to 15 February 1992 he had been head of Otočac police station and that sometime in October or November 1991 an order had been given for M.S. to be arrested and taken to the Gospić Police Department for questioning on suspicion of having participated in the criminal offence of kidnapping a driver in the spring of 1991. He did not know who had given that order but was sure that it had not been him. J.O. also said that he had not seen M.S. when he was taken to the Otočac police but that he knew that M.Č., together with one or two other police officers, had taken M.S. to the Gospić police in a police car. He had no knowledge as to what had happened there but had heard rumours that on the same day M. S. had run away to the occupied territories. 32. On 13 July 2004 the Zadar Police Department (Policijka uprava zadarska) interviewed Ž.B., who had been Head of the Public Safety Operational Tasks Division of the Gospić Police Department (načelnik Odjela operativnih poslova javne sigurnosti Policijske uprave Gospić) in the period between 1 August and 30 November 1991. He had no knowledge of the arrest and disappearance of M.S. and had never heard of a person of that name. 33. On 24 August 2004 the Ličko-Senjska Police Department interviewed I.D., a retired police officer from the Gospić Police Department who said that he had not ordered the arrest of M.S. and that it had most likely been J.O. who had ordered it. He had not witnessed M.S. being brought to the Gospić Police Department. 34. In October 2004 the Deputy State Attorney sent a letter to the first applicant telling her that both the Gospić Police Department and the Gospić County State Attorney's Office had been ordered to take all necessary steps to establish the circumstances of her husband's disappearance. 35. On 11 November 2004 the Gospić County State Attorney's Office asked the Gospić County Court (Županijski sud u Gospiću) to hear evidence from witnesses J.S. (the first applicant), J.O., M.Č., D.V., D.R., J.R. and I.O. At hearings held on 23 and 24 November 2004 an investigating judge of the Gospić County Court heard evidence from all these witnesses, save J.O. All of them repeated what they had already said to the police. Further to this, on 10 February 2005 an investigating judge of the Zagreb County Court (Županijski sud u Zagrebu) heard evidence from J.O. He repeated the statement he had made to the police. 36. At the end of 2004 the first applicant wrote to the Vice-President of the Government, enquiring about the progress of the investigation, and the latter forwarded the letter to the State Attorney. In February 2005 the Deputy State Attorney informed the applicant that in November 2004 a request for an investigation into the disappearance of M.S. to be opened had been lodged with the Gospić County Court (Županijski sud u Gospiću). On 10 February 2005 the investigating judge assigned to the case heard evidence from a number of witnesses. 37. In August 2005 the first applicant's counsel sought information about the investigation from the Gospić County Court. 38. In September 2005 the Gospić County State Attorney's Office informed the applicant that those responsible for the disappearance of her husband had yet to be identified. The Gospić County State Attorney asked the Gospić Police Department to continue with their efforts to establish the circumstances of M.S.'s disappearance. 39. In December 2005 the first applicant's counsel asked the State Attorney to transfer the case to another State Attorney's office, objecting to the lack of impartiality of the Gospić County State Attorney's Office on the grounds that the investigation had revealed involvement on the part of the local authorities in the disappearance of M.S. 40. In January 2006 the State Attorney replied to the first applicant's counsel that he had asked for a report from the Gospić County State Attorney's Office and the local police. 41. In July 2006 the first applicant's counsel told the representatives of the OSCE Mission to Croatia that the investigation was ineffective. In August 2006 the Mission enquired of the State Attorney as to progress with the investigation. 42. At the same time the first applicant's counsel requested that M.S. be listed as a disappeared person with the Department for Detained and Disappeared Persons and provided information as to where his body might be found. Soon afterwards, the Ministry of Family, Homeland War Veterans and Intergenerational Solidarity (Ministarstvo obitelji, branitelja i međugeneracijske solidarnosti) informed the representative that three corpses of unidentified persons had been found as a result of exhumation at a graveyard in Vraneš. In connection with this the members of the Skendžić family gave samples of their blood. 43. In October 2006 the State Attorney's Office informed the OSCE Mission to Croatia that further information had been requested from the Gospić County State Attorney's Office. The latter ordered the local police authorities to undertake further steps in order to identify the perpetrators. However, no further steps were taken. 44. On 6 September 2007 the applicants lodged a constitutional complaint about the ineffectiveness of the investigation. The proceedings are still pending. 45. In March 2002 the applicants brought a civil action against the State in the Otočac Municipal Court seeking damages in connection with M.S.'s disappearance. 46. In a judgment of 6 May 2005 the Municipal Court established that M.S. had been arrested by the police and alive while in police custody and that therefore the State was responsible for his disappearance and death. It awarded the applicants each 230,000 Croatian kunas (HRK) for non-pecuniary damage in respect of their suffering for the death of a close relative, and also a monthly allowance to the first applicant until her death and to the second and third applicants for as long as they attended school. The relevant part of the judgment reads: “... the arrest warrant issued by the Otočac police station on 3 November 1991 in respect of M.S., on the basis of which he was brought to that station, and at the same time the lack of any evidence that M.S. was handed over to any other State body, leads this court to establish the defendant's responsibility. ... As stated above, the fact that there is no evidence that the Otočac police station handed the detainee M.S. over to any other State body is crucial for the question of the defendant's responsibility because the issue of control over the detainee includes taking of responsibility for his safety and for the protection of his physical integrity. The evidence given by the witnesses, in particular the police officers who participated in M.S.'s arrest and his transfer to Gospić, shows that their actions violated the detainee's fundamental human rights and freedoms guaranteed under the Croatian Constitution, which cannot be restricted even at the time of ... the immediate war danger ... as well as the rights guaranteed by the Code on Criminal Procedure then in effect. It has been established that the defendant, in addition to infringing the procedure prescribed by law, did not secure to the detainee the protection of his physical integrity and life, which resulted in his disappearance and presumption of his death. In such a way, it is clear that damage was caused by unlawful and incorrect acts on the part of the State bodies, namely, the Ministry of Interior ... ... This court has no doubt that the suffering on account of the death of a husband and father cannot be translated into money: it concerns just satisfaction so that the plaintiffs may be at least partially helped in regaining their mental balance, which was certainly upset by the loss of a husband and father. In assessing the amount of just satisfaction for the plaintiffs' suffering, the court has had particular regard to the circumstances and manner in which the deceased M.S. disappeared, and accordingly considers the plaintiffs' sufferings as being particularly serious. The court has taken into account that the deceased, M.S., was arrested by the legitimate authorities and that since he was taken from his home, his family – the plaintiffs – have had no further information about [his whereabouts]. Of course the fate of the plaintiffs' husband and father has given rise to an exceptionally frustrating and stressful situation for the plaintiffs as a family, in particular seeing that the family has never learned the complete truth about his disappearance. In her statement the first plaintiff vividly described the atmosphere of utter despair and uncertainty which the plaintiffs felt at the time when M.S. was arrested and then disappeared, stressing that she had taken tranquilisers because she had received no answers as regards the fate of her husband. The statement of the second plaintiff that as a six-year old child she had been constantly crying, that she and her brother had retreated into themselves and that she would like to know at least where her father had been buried so that she could attend his grave on All Saints Day was also moving. The third plaintiff, who was three at the time of [the disappearance of his father], stressed the strong bond between himself and his father and the time of his arrest and uncertainty about his fate, describing it as 'horrible in which he cannot remember a single nice moment.' It is clear that the mental suffering caused by the loss of a parent or a husband is immeasurable. In the case at issue the plaintiffs' suffering has an additional dimension owing to the fact that they still do not know the exact circumstances of M.S.'s death or the place of his grave.” 47. The part of the judgment concerning the award for non-pecuniary damage was upheld by the Gospić County Court on 12 January 2006, whereas the part concerning the monthly allowance was quashed. On 10 October 2007 the Supreme Court (Vrhovni sud Republike Hrvatske) upheld the County Court's judgment concerning the award for non-pecuniary damage. This judgment was fully enforced on 29 April 2008. 48. The proceedings concerning the claim for a monthly allowance resumed before the Otočac Municipal Court, which delivered a fresh judgment on 11 February 2009, again awarding the applicants a monthly allowance, which was upheld by the Gospić County Court on 3 July 2009. 49. On 31 August 2009 the applicants sought enforcement of that judgment in the Otočac Municipal Court and an enforcement order was issued on 9 September 2009. 50. However, upon a request by the State on 22 September 2009, the enforcement of the judgment was adjourned on the grounds that the State had in the meantime lodged an appeal on points of law with the Supreme Court, which was still pending. | 1 |
dev | 001-110491 | ENG | LVA | CHAMBER | 2,012 | CASE OF J.L. v. LATVIA | 3 | Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect) | Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria | 5. The applicant was born in 1980. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 21 November 2005 the applicant’s wife’s car was stolen. G. contacted the applicant and asked for money for return of the car. The applicant reported this to the police and on 25 November 2005, under instructions from police officers, he gave the money to G. and recorded the conversation on audio tape. On the same day G. was arrested. On 5 June 2006 G. was charged with theft and extortion, mainly on the basis of the aforementioned evidence. On 14 July 2006 the criminal case was referred to the court. 8. Meanwhile, on 7 November 2005 the Aizkraukle District Prosecutor’s Office brought charges against the applicant concerning repeated misappropriation. 9. On 16 November 2005 the applicant entered a plea of guilty and confirmed that the examination of evidence was not necessary. He explicitly refused the assistance of defence counsel. On the same day the criminal case was referred to the court. 10 On 4 January 2006, during the hearing, the applicant confirmed that defence counsel and examination of witnesses were not necessary. The Aizkraukle District Court found the applicant guilty and sentenced him to three years’ and nine months’ imprisonment. The applicant was taken to Central Prison from the courtroom. 11. On 26 January 2006 the Zemgale Regional Court examined the applicant’s appeal and upheld the judgment of the lower court. According to the records of the hearing the applicant said in his statement to the court that he had been beaten up on his way to the prison and that it had happened because of his previous cooperation with the police. 12. In his appeal on points of law of 16 February 2006 the applicant complained about the severity of the sentence. He also mentioned his cooperation with police, and that as a result he had suffered bodily injuries in prison. 13. On 23 February 2006 the applicant asked the Prosecutor General to reduce his final sentence. He mentioned, inter alia, that because of his cooperation with the police he had encountered problems in prison, specifically that his nose had been broken and he had also sustained other body injuries. In March 2006 he sent a similar request to the Aizkraukle District Court. 14. On 7 March 2006 the Supreme Court dismissed the applicant’s appeal on points of law. 15. On 1 September 2006, at the request of the Prosecutor General’s Office, the Aizkraukle District Court reduced the applicant’s sentence by one year, owing to the fact that he had helped to disclose a serious criminal offence. 16. On 22 June 2007 the applicant was released from prison after serving his sentence. 17. The applicant arrived at Central Prison on 5 January 2006 and was placed in a filtering cell with eleven other inmates. 18. According to the applicant, during the night of 5-6 January 2006 he was physically and sexually assaulted by his fellow inmates: his nose was broken and he was raped. He complained about this to the Central Prison doctor, who rendered medical assistance but refused to draw up a medical report in this connection; similarly, a prison guard refused to initiate an investigation into the assault. 19. On 6 January 2006 he was transferred to cell 72, which provided services to the prison canteen. 20. According to a report drawn up by the head of the medical unit of the Prison Administration, on 6 January 2006 the applicant was examined by the Central Prison doctor, who recorded the applicant’s complaints about inflammation of the duodenum. On 16 January 2006 the applicant had a prophylactic examination by the same doctor, who assessed him as in good health and fit for work in the prison canteen. 21. On 14 March 2006 the applicant asked the Prison Administration to transfer him to specialised detention facilities in Matīsa Prison, arguing that he had been receiving threats from those he had testified against. 22. On 21 March 2006 an officer of the Security Department of the Prison Administration met the applicant. According to the report drawn up by the officer during the meeting the applicant complained about possible threats, in that the people he had testified against were known to some of his fellow inmates. The applicant denied having any problems in Central Prison where he was employed in the canteen. 23. Further, according to the same report, in a telephone conversation on 22 March 2006 a police officer in charge of G.’s criminal case confirmed that the applicant was cooperating, and acknowledged that the applicant might therefore encounter problems in prison, but he refused to confirm this in writing. With the agreement of the deputy head of the Prison Administration it was decided to transfer the applicant to Jēkabpils Prison. The report also stated that on 22 March 2006 a representative of the Prison Administration had advised the head of Jēkabpils Prison by telephone to take the applicant “under control”. 24. On 30 March 2006 the applicant was transferred to Jēkabpils Prison. 25. On 13 August 2006 the applicant complained to the Ombudsman (the Bureau for the Protection of Human Rights at that time) that he had been ill-treated on 6 January 2006 in Central Prison. At the Ombudsman’s request in September 2006 the Prison Administration requested information from Central and Jēkabpils Prisons about the applicant’s situation there. 26. On 25 September 2006 the head of Jēkabpils Prison reported that when the applicant arrived his personal file did not contain any indication that he required isolation from other inmates, and that he had not raised any complaints about physical ill-treatment while detained in Jēkabpils Prison. It was also noted that according to the prisoners’ internal classification the applicant was “kreisais” (someone who had allegedly, inter alia, cooperated with the law enforcement authorities). 27. On 27 September 2006 the head of Central Prison informed the Prison Administration that the applicant had never complained about the incident of 6 January 2006. The letter contained statements from three of the eleven fellow inmates with whom the applicant had been placed on 6 January 2006; they all denied any ill-treatment of the applicant. 28. Relying on the above reports, on 3 October 2006 the Prison Administration informed the Ombudsman’s Office that there was no information about the applicant’s ill-treatment. 29. In response to the request of the Government Agent, on 2 November 2007 the Office of the Prosecutor General stated that they had not received any complaints from the applicant concerning ill-treatment in Central Prison on 6 January 2006 or in any other prison. The letter confirmed that by virtue of section 6 of the Law of Criminal Procedure the Office of the Prosecutor would have decided on the opening of criminal proceedings if it had received a complaint from the applicant of physical or sexual ill-treatment or a refusal by the prison administration to review the complaint. 30. Aiming to ensure that the applicant attended G.’s trial, on 4 September 2006 the prosecutor in charge asked the Prison Administration to transfer the applicant from Jēkabpils Prison to Rīga. In her letter the prosecutor noted that G. had been detained in Central Prison and that his criminal case contained compelling information that G. had previously intimidated the applicant. Therefore the Prison Administration was asked to transfer the applicant to the specialised detention facilities in Matīsa Prison. The prosecutor referred to a report addressed to the Office of the Prosecutor General which confirmed the attempt to intimidate the applicant. 31. It appears that on two occasions the applicant had been transferred to Matīsa Prison in Rīga in order to attend G.’s trial. 32. In September and October 2006 the Prison Administration dismissed the applicant’s requests to allow him to continue serving the rest of his sentence in Matīsa Prison. 33. Sections 159 and 125 of the Criminal Law provides criminal sanctions for rape and other forms of sexual assault, the severity of sanctions varying according to the qualification of the offence. 34. Section 6 of the Law of Criminal Procedure provides that the official authorised to perform criminal proceedings has a duty in each case where the reason and grounds for initiating criminal proceedings have become known, to initiate proceedings and to direct them towards fair regulation of the criminal law as set out in the Criminal Law. 35. By virtue of section 369 parts one and two, one reason for initiating criminal proceedings is information which indicates that a criminal offence has been committed, if such information has been submitted to, or acquired by, an investigating institution (izmeklēšanas iestāde), the Office of the Prosecutor, or the court. The information referred to above may be submitted, inter alia, by a person who has suffered as a result of a criminal offence; by controlling and supervising institutions; by medical practitioners or institutions; or by any natural or legal person regarding possible criminal offences from which that person has not directly suffered. 36. Section 370 provides that criminal proceedings may be initiated if there is an actual possibility (reāla iespēja) that a criminal offence has been committed. Criminal proceedings may also be initiated if the information received described circumstances relating to a criminal offence which may have taken place and the examination of such information is possible only by methods applicable to criminal proceedings. 37. Section 371 sets out the responsibility for instituting investigations and those of the Office of the Prosecutor and the courts in the initiation of criminal proceedings. In particular, an investigator has a duty to initiate criminal proceedings, within his or her competence, if any of the factors referred to in Section 369 of this Law are present. A public prosecutor may send materials for examination to an investigating institution or commence criminal proceedings within the scope of his or her competence, in connection with any reason referred to in section 369 of this Law. Besides, a decision of a public prosecutor regarding the initiation of criminal proceedings, and the materials related to such decision, shall immediately be sent to an investigating institution, except for particular cases referred to in section 38, paragraph 3 of this Law. 38. By virtue of sections 386 and 387 the Prison Administration shall carry out pre-trial criminal proceedings and investigate criminal offences committed by detained or convicted persons, or by employees of the Latvian Prison Administration in places of imprisonment. 39. According to part 9 of the transitional provisions the terms izziņas iestāde (institution of an inquiry) and izziņas izdarītājs (person presiding over an inquiry) used in other legal enactments shall hereinafter be understood as the terms izmeklēšanas iestāde (investigating institution) and izmeklētājs (investigator). 40. According to section 1, an administrative act is a legal instrument issued by an institution in an area of public law. It further specifies that decisions regarding, inter alia, criminal proceedings and court adjudications, are not administrative acts. 41. The other relevant parts of the Law of Administrative Procedure as applicable at the material time concerning the right to challenge administrative acts and actions of public authorities are summarised in Melnītis v Latvia; no. 30779/05, §§ 24-26, 7 February 2012, not yet final. 42. The relevant provisions of the Law on the Prosecutor’s Office applicable at the material time are summarised in Leja v. Latvia, no. 71072/01, § 34, 14 June 2011. In particular, according to section 15 a prosecutor shall supervise the execution of sentences of deprivation of liberty and the places of that detention. 43. Section 16 provides that a prosecutor shall, in accordance with the procedures prescribed by law, carry out an examination if the information received contains assertions regarding either a crime or violation of the rights and lawful interests of, inter alia, detainees. 44. According to section 2 paragraph 5 the Prison Administration is an institution of an inquiry (izziņas iestāde) in criminal proceedings instituted to investigate offences committed by detained or convicted persons. By virtue of section 6 paragraph 4 the head of the Prison Administration shall have the power to launch an investigation in such criminal proceedings. 45. According to section 5 the special protection measures specified in this law are ensured by the following institutions: a specially authorised division of the State Police; a specially authorised department of the Latvian Prisons Administration and at the place of imprisonment – a specially authorised division of the place of imprisonment, as well as other persons performing investigative operations, if, in accordance with the instructions of the Prosecutor General, it is necessary to ensure special protection. 46. According to section 6 the reasons of applying special protection shall be an actual threat to the life, health or other legal interests of a person, expressed imminent threats or other sufficient grounds indicating that the danger may be imminent owing to a person’s participation in criminal proceedings. The special protection shall be appplied based on either a written request of a person testifying in criminal proceedings and a proposal of the investigating authority; or the initiative of a court, if a reason for applying special protection has arisen during the course of adjudication; or a written submission of another person to whom the special protection has been assigned. 47. The report of 13 March 2008 to the Latvian Government on the visit to Latvia carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (“the CPT”) from 5 to 12 May 2004 notes the following: “46. During the 2004 visit, the delegation examined several internal investigation files on inquiries conducted by the Security Departments into serious incidents of inter-prisoner violence at Daugavpils Prison and Rīga Central Prison. The delegation also had consultations with the competent prosecutor in Rīga. It came to light that, in several cases, no criminal investigations had been initiated, despite the fact that medical evidence consistent with allegations of inter-prisoner violence was available. In this connection, the delegation was informed that, as a rule, instances of inter-prisoner violence were only reported to the prosecutor if the victim made explicit allegations to this effect in his written statement to the Security Department. In this connection it appeared to be immaterial whether or not the prisoner concerned had previously made such allegations to the doctor and the allegations had been recorded in his medical file. It is also of concern that, even when the prosecutor had become aware of serious cases of inter-prisoner violence, he had not always initiated investigation not taken a formal reasoned decision on the matter. In fact, the Security Department’s investigation file was simply returned to the prison, without any record being kept that the prosecutor had examined the case. 47. The CPT recommends that the existing procedures be reviewed in order to ensure that whenever injuries are recorded by a doctor which are consistent with allegations of inter-prisoner violence, the matter is immediately brought to the attention of the relevant prosecutor and a preliminary investigation is initiated by him. More generally, the CPT calls upon the Latvian authorities to develop strategies with a view to addressing the problem of inter-prisoner violence in the establishments visited (and, as appropriate, in other prisons in Latvia). 50. In the light of the above, the CPT calls upon the Latvian authorities to take immediate steps to review throughout the prison system the role played by the Security Departments, in the light of the remarks made above ... . In particular, steps should be taken to ensure that: - criminal investigations into instances of ill-treatment by staff as well as inter-prisoner violence are no longer carried out by the Security Departments. Such investigations should be conducted by a body which is independent of the establishment concerned, and preferably of the prison system as a whole. - prisoners are allocated/transferred to cells under the responsibility of the Director of the establishment concerned”. ... 66. At Rīga Central Prison, neither the complement of qualified nursing staff nor the psychiatric/psychological services had been strengthened, despite the specific recommendations made after the 1999 visit and reiterated after the 2002 visit. .... 67. In the light of the above, the CPT reiterates its recommendation that steps be taken, as a matter of priority, to ensure that: - the complement of qualified nursing staff at Daugavpils Prison and Rīga Central Prison is increased; ... - every newly-arrived prisoner is properly interviewed and physically examined by a medical doctor (or a fully qualified nurse reporting to a doctor) as soon as possible after his admission to Daugavpils Prison; save for exceptional circumstances, the interview/examination should be carried out on the day of admission; ... 68. In both establishments (including the Prison Hospital), the examination of medical files revealed that the injuries observed (upon admission or after violent incidents within the prison) were frequently not recorded in detail, and that no additional information was given as to the causes of the injuries sustained. ... The CPT must therefore reiterate its recommendation that steps be taken at Daugavpils Prison and Rīga Central Prison (as well as in other prison establishments in Latvia) to ensure that the record drawn up after a medical examination of a prisoner, on arrival or after a violent incident within the prison, contains: (i) a full account of statements made by the prisoner concerned which are relevant to the medical examination, including any allegations of ill-treatment made by him; (ii) a full account of the objective medical findings based on a thorough examination; (iii) the doctor’s conclusions in the light of (i) and (ii). In his conclusions, the doctor should indicate the degree of consistency between allegations made and the objective medical findings; these conclusions should be made available on request to the prisoner concerned and his lawyer. Further, whenever injuries are recorded by a doctor which are consistent with allegations of ill-treatment made by a prisoner, the record should be immediately brought to the attention of the relevant prosecutor (see also paragraph 47)”. 48. In response to the above report the Latvian Government referred to an instruction of 29 March 2004 adopted by the Prison Administration. According to the instruction, in case there has been an incident of ill-treatment in a prison establishment, the prison doctor has to examine the detainee and to inform the administration of the prison. The latter has to inform the Prosecutor’s office and carry out an investigation according to the procedure established by law. 49. The report of 15 December 2009 to the Latvian Government on the visit to Latvia carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (“the CPT”) from 27 November to 7 December 2007 notes: “78. ... As was the case during all previous visits, the delegation observed a number of shortcomings in the manner in which injuries were recorded at Rīga Central Prison. First of all, several newly-arrived prisoners met by the delegation displayed visible injuries on various parts of the body (including on the face), but no injuries at all were recorded in the medical file, despite the fact that these injuries had apparently been sustained prior to admission. Further, although objective medical findings relating to injuries were recorded in other cases, they were frequently not accompanied by an account of the statements made by the persons concerned which are relevant to the medical examination. In particular, medical records frequently failed to note the prisoner’s account of the origin of these injuries (or to note if the person concerned had refused to reply to the relevant questions asked by the doctor) as well as the doctor’s conclusions in the light of the objective findings and the prisoner’s account. Further, at Jēkabpils Prison, the delegation found instances where visible injuries had not been recorded at all in the prisoners’ medical files (including after violent incidents in the prison). The CPT must recommend once again that steps be taken at Rīga Central Prison and Jēkabpils Prison, as well as in all other prisons in Latvia, to ensure that the record drawn up after a medical examination of a prisoner, on arrival or after a violent incident within the prison, contains: (i) a full account of statements made by the prisoner concerned which are relevant to the medical examination, including any allegations of ill-treatment made by him; (ii) a full account of objective medical findings based on a thorough examination; (iii) the doctor’s conclusions in the light of (i) and (ii). In his conclusions, the doctor should indicate the degree of consistency between any allegations made and the objective medical findings; these conclusions should be made available to the prisoner and his lawyer. 50. Recommendation Rec (2005)9 of the Committee of Ministers of the Council of Europe to member states on the protection of witnesses and collaborators with justice. ... “II. General Principles 1. Appropriate legislative and practical measures should be taken to ensure that witnesses and collaborators of justice may testify freely and without being subjected to any act of intimidation. 2. While respecting the rights of the defence, the protection of witnesses, collaborators of justice and people close to them should be organised, where necessary, before, during and after the trial. 3. Acts of intimidation of witnesses, collaborators of justice and people close to them should, where necessary, be made punishable either as separate criminal offences or as part of the offence of using illegal threats”. ... | 1 |
dev | 001-61100 | ENG | GBR | CHAMBER | 2,003 | CASE OF HEWITSON v. THE UNITED KINGDOM | 4 | Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings | Matti Pellonpää;Nicolas Bratza | 7. The applicant was born in 1948 and is currently serving a sentence of imprisonment in HMP Verne. 8. The applicant owned a garage in Dorset and had business connections in Spain. He had two Mercedes cars each of which had a false compartment in the fuel tank. The false compartments could hold up to 45 kilograms of cannabis resin. From 1994 he was suspected by the police of being involved in drug trafficking. The police also suspected him of being involved in the handling of stolen goods, including stolen vehicles. 9. On 22 February 1995 he was arrested by the Dorset police in relation to their suspicions of his handling stolen goods. Whilst he was in custody, a listening device was installed at his garage premises which remained there and active until 26 July 1995 when it was discovered. 10. On 30 December 1996 an indictment was signed charging the applicant with conspiracy to import controlled drugs and conspiracy to supply controlled drugs, namely cannabis. The prosecution evidence against the applicant relied on tape recordings made from the listening device which had been installed by the police at the applicant’s garage premises. It was acknowledged by the prosecution that without the evidence from the tapes, there was no prima facie case against the applicant. 11. The applicant objected to the admission of the tape recordings as evidence in his trial. He argued inter alia that the original grant of authority and the renewal of authority for the placement of the listening device were not in compliance with the Home Office Guidelines, which governed the use of surveillance equipment by the police at the relevant time. He submitted that his prosecution ought to be stayed as an abuse of the process of the court, alternatively the tape evidence should be excluded under section 78 of the Police and Criminal Evidence Act 1984 (“PACE”). 12. A preliminary hearing was held on the matter of the admissibility of the tape recordings. His Honour Judge Pryor QC held on 8 July 1997 that he was satisfied that the original authority for the use of the surveillance equipment was properly granted and that there were proper grounds for renewal, though he made some criticism of the lack of documentation on the renewals and noted that there had been a technical infringement in that one renewal took place a day late. The judge concluded that the tapes were admissible as evidence and should not be excluded under section 78 of PACE. 13. Following the admission of the tapes as evidence, the applicant pleaded guilty to the charges of conspiracy to import controlled drugs and conspiracy to supply controlled drugs, namely cannabis. On 5 September 1997 he was sentenced to five years’ imprisonment. 14. The applicant was granted leave to appeal against his conviction. On 24 September 1997, the Court of Appeal held that in the light of the applicant’s pleas of guilty his convictions could not be regarded as “unsafe” and rejected his appeal. 15. Guidelines on the use of equipment in police surveillance operations (The Home Office Guidelines of 1984) provided that only chief constables or assistant chief constables were entitled to give authority for the use of such devices. The Guidelines were available in the library of the House of Commons and were disclosed by the Home Office on application. 16. In each case, the authorising officer had to satisfy himself that the following criteria were met: a) the investigation concerned serious crime; b) normal methods of investigation must have been tried and failed, or must from the nature of things, have been unlikely to succeed if tried; c) there was good reason to think that use of the equipment would be likely to lead to an arrest and a conviction, or where appropriate, to the prevention of acts of terrorism; d) the use of equipment was operationally feasible. The authorising officer had also to satisfy himself that the degree of intrusion into the privacy of those affected by the surveillance was commensurate with the seriousness of the offence. 17. The 1997 Act provides a statutory basis for the authorisation of police surveillance operations involving interference with property or wireless telegraphy. The relevant sections relating to the authorisation of surveillance operations, including the procedures to be adopted in the authorisation process, entered into force on 22 February 1998. 18. Since 25 September 2000, these controls have been augmented by Part II of the Regulation of Investigatory Powers Act 2000 (“RIPA”). In particular, covert surveillance in a police cell is now governed by sections 26(3) and 48(1) of RIPA. RIPA also establishes a statutory Investigatory Powers Tribunal to deal with complaints about intrusive surveillance and the use of informants by the police. | 1 |
dev | 001-68407 | ENG | RUS | CHAMBER | 2,005 | CASE OF PETRUSHKO v. RUSSIA | 4 | Violation of Art. 6-1;Violation of P1-1;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed | Christos Rozakis | 4. The applicant was born in 1965 and lives in Novocherkassk, Rostov Region. 5. In 2001 the applicant brought an action for damages against the Ministry of Internal Affairs following the death of her husband during his military service in Chechnya. 6. On 7 June 2001 the Leninskiy District Court of Rostov granted the applicant's claim. Her award consisted of a lump-sum compensation of 71,851.50 roubles (RUR) and monthly payments of RUR 1,710.75, subject to future adjustment to a statutory rate. The monthly payments were not paid to the applicant. 7. In 2002 the applicant brought new proceedings to obtain the adjustment of the outstanding monthly payments. 8. On 27 September 2002 the Leninskiy District Court of Rostov granted the applicant's claim. It made an adjustment of the monthly payments increasing them retrospectively to RUR 3,849. It awarded the applicant arrears of RUR 88,916.16 in respect of the period from 1 January 2002 to 1 October 2002. 9. On 9 October 2002 the applicant obtained an execution order, which she submitted to the Ministry of Finance of the Russian Federation for payment. 10. On 17 June 2003, after the case had been communicated to the Government, the applicant was paid RUR 30,793.44, and on 19 June 2003 she was paid RUR 88,916. | 1 |
dev | 001-103684 | ENG | GBR | ADMISSIBILITY | 2,011 | JUDGE v. THE UNITED KINGDOM | 3 | Inadmissible | Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva | 1. The applicant, Mr Thomas Judge, is a British national who was born in 1951. He is currently detained at HMP Glen Ochil. 2. On 17 September 2007, the applicant was convicted after trial in the High Court of Justiciary at Kilmarnock of seven offences of a sexual nature. 3. The victims (complainers) were three girls, N, C and J. The offences were alleged to been committed between 1996 and 2005 when the three girls had been in the foster care of the applicant and his wife. N and J were sisters who entered the applicant’s care in 1995. C and her brother and sisters came into the care of the applicant in 1998. 4. Section 274 of the Criminal Procedure (Scotland) Act 1995 (“the 1995 Act”) prohibits the admission of evidence or questioning as to the character or sexual history of a complainer in sexual offences unless the evidence or questioning falls within one of the exceptions provided for in section 275. Those exceptions require: (i) that the evidence or questioning relate only to a specific occurrence or occurrences of sexual or other behaviour (section 275(1)(a)); are relevant to whether the accused is guilty (section 275(1)(b)); and the probative value of the evidence is significant and likely to outweigh any risk of prejudice to the proper administration of justice (section 275(1)(c)) (see relevant domestic law and practice below). 5. On 30 August 2007, before the trial started, a preliminary hearing was held to consider inter alia an application by the defence under section 275 to admit evidence at trial that: (i) in December 2005 (around the same time she made her own allegations to the police) the complainer C had a conversation with a defence witness, M, in which C indicated that she did not believe the allegations that had been made against the applicant by the other girls (issue 5(b) in the application); and (ii) that the applicant had made two allegations of theft against C, which had been investigated by the police and led to reports to the Procurator Fiscal (the prosecution authority) (issue 6 in the application). 6. The preliminary hearing judge decided to exclude the evidence in issue 5(b) on the grounds that, as a general rule, evidence of facts affecting the credibility of a witness, apart from the evidence of the witness herself, was inadmissible unless the facts were also relevant to the questions at issue; a witness should not be asked to express an opinion as to the credibility of another witness. He excluded the evidence in issue 6 on the grounds that the test of relevance in section 275(1)(b) had not been met. 7. In their evidence at trial all three complainers gave evidence as to the offences which they alleged had been committed against them. J also gave evidence that she had observed one incident of abuse involving N. The jury also heard evidence that, in November 2005, following a discussion between N and J, the applicant’s conduct was reported to the authorities and all three complainers were removed from his household. All three complainers gave evidence that the reason they had delayed in reporting the abuse was that they feared that they would be separated from their respective siblings. Evidence was also led by the prosecution from a brother of N and J. The brother testified that he had seen a different instance of sexual activity between N and the applicant from that observed by J. 8. Each complainer was cross-examined to the effect that nothing of an inappropriate manner had ever occurred and that they had fabricated aspects of their evidence. N and J were examined as to differences between the statements they gave to the police and their testimony in court. C was examined as to why she had denied anything had happened to her at all, when first interviewed by the police in December 2005. A suggestion was put to J that she had colluded with N as to what she said she had seen the applicant doing to N. It was also put to N and C that the applicant’s alleged erectile dysfunction rendered him incapable of certain of the activities of which each of them had testified. 9. The applicant gave evidence denying any inappropriate conduct had ever occurred involving any of the complainers. He gave evidence as to his alleged erectile dysfunction, which, he said, meant the conduct described in particular by N and C could not have occurred. He gave evidence of a number of arguments between him and N just before they reported his conduct to the authorities in November 2005. He suggested J had misunderstood the incident she had observed between him and N. He also suggested that the three complainers had lied, possibly out of self-interest. Nine character witnesses gave evidence in his defence. The applicant’s general medical practitioner gave evidence that the applicant had sought help for erectile dysfunction. The applicant’s wife gave evidence as to the general circumstances in the house, the applicant’s character and her impression of the relationships he had with the complainers. 10. The applicant was convicted by a majority verdict of the jury as charged. As is the normal practice in Scots criminal law, when convicting the applicant, the jury did not give reasons for their verdict. 11. The applicant appealed against his conviction. He submitted that first, the preliminary hearing judge had erred in excluding the evidence set out in issues 5(b) and 6 of the defence application. Second, he submitted that the verdict of the jury was a miscarriage of justice because it had been taken in ignorance of evidence that C was motivated to tell lies about him because he had reported her to the police for theft. He argued that this evidence would have been of high probative value. It was particularly relevant because in his charge (summing up) to the jury the presiding judge had advised the jury that the evidence of C might be essential to the other charges. 12. The appeal was dismissed by the High Court of Justiciary sitting as a court of criminal appeal (“the Appeal Court”) on 18 December 2009. The Appeal Court accepted that the preliminary judge had erred in excluding the evidence regarding issue 5(b) since the proposed line of questioning would not have been prohibited by section 274 of the 1995 Act. He had been in error in thinking that the proposed line of questioning would have been to invite the defence witness M to comment on the credibility of C. Instead, it had been to question C’s credibility by proving that she had made two contradictory statements: one to M and another to the police. However, the Appeal Court concluded that the fact that this evidence was not before the jury did not amount to a miscarriage of justice. Whether evidence had been wrongly excluded was not the same question as whether the trial was fair; the issue of miscarriage of justice depended on the materiality of that evidence. The question was whether, had the evidence been before the jury, there would have been any real possibility that the verdict of the jury would have been different. The Appeal Court observed: “In the present case, the jury had before them undisputed evidence that when C was interviewed by police officers in December 2005 she denied that she had been sexually abused. The jury had no basis for rejecting that evidence. Notwithstanding that evidence, the jury must have accepted C’s evidence that she had in fact been abused by the [applicant], in the manner outlined in the two charges relating to her. It is a well-known phenomenon for individuals who have been victims of abuse when they were children to be unwilling or reluctant to disclose such abuse, or to delay in doing so. Evidence that C had also, during December 2005, indicated to defence witness M that she did not believe allegations of abuse made by the other two complainers would, at its highest, merely have provided another instance of the same phenomenon. In our opinion it would not have added anything significant to the jury’s consideration of the case. On the contrary, the jury was liable to have regarded those two chapters of evidence as consistent manifestations of reluctance on the part of C to disclose abuse which she herself had suffered, a reluctance which common sense and experience of life indicated was understandable and one she subsequently overcame. The jury’s verdicts were returned after they had heard evidence from all three complainers and the [applicant] himself. That involved their accepting that the other two complainers had been sexually abused by the [applicant] while they were in his care in similar circumstances to complainer C. It is also reasonable to assume that the jury must have accepted the evidence of the eye-witness to one instance of abuse against complainer N. When all these factors are taken into account, there appears to be no real possibility that the exclusion of evidence about what complainer C may have said to defence witness M would have affected the jury’s verdicts, whether in relation to the charges involving C or any of the other charges.” 13. The Appeal Court also considered that the evidence in regard to issue 6 (the alleged thefts) had been properly excluded. None of three requirements contained in section 277(1)(a)-(c) had been met. In particular, the two allegations of theft did not make it more or less likely that the applicant had been guilty of sexual abuse, nor did the making of those allegations by the applicant in 2002 or 2003 make it more or less probable that C had fabricated allegations of sexual abuse in January 2006. The probative value of that evidence was insignificant and would have been calculated to blacken by innuendo the character of C by evidence relating to matters unconnected with the charges faced by the applicant. 14. Scots criminal law distinguishes between summary and solemn procedure. In the former the trial takes place before a judge sitting alone. In the latter, which is reserved for more serious offences, the trial takes place before a judge and a jury of fifteen members on the basis of an indictment. Section 64 and Schedules 2 and 3 to the 1995 Act provide for the form and content of the indictment. 15. The admission of evidence is a matter either for the presiding judge or, as occurred in this case, if an application is made before the start of the trial, a preliminary hearing judge. 16. By section 97(1) of the Criminal Procedure (Scotland) Act 1995, immediately after the close of the evidence for the prosecution, the accused may intimate to the court his desire to make a submission that he has no case to answer both: (a) on an offence charged in the indictment; and (b) on any other offence of which he could be convicted under the indictment. Subsections 97(2)-(4) provide: “(2) If, after hearing both parties, the judge is satisfied that the evidence led by the prosecution is insufficient in law to justify the accused being convicted of the offence charged in respect of which the submission has been made or of such other offence as is mentioned, in relation to that offence, in paragraph (b) of subsection (1) above, he shall acquit him of the offence charged in respect of which the submission has been made and the trial shall proceed only in respect of any other offence charged in the indictment. (3) If, after hearing both parties, the judge is not satisfied as is mentioned in subsection (2) above, he shall reject the submission and the trial shall proceed, with the accused entitled to give evidence and call witnesses, as if such submission had not been made. (4) A submission under subsection (1) above shall be heard by the judge in the absence of the jury.” 17. If the trial judge rejects a submission of no case to answer, the defence case is presented. The prosecution and defence then address the jury. By section 98 of the 1995 Act, the defence has the right to speak last. The presiding judge then charges the jury. The role of the presiding judge in charging the jury was restated by the Lord Justice General in Hamilton v. HM Advocate (1938) JC 134: “The primary duty of the presiding judge is to direct the jury upon the law applicable to the case. In doing so it is usually necessary for him to refer to the facts on which questions of law depend. He may also have to refer to evidence in order to correct any mistakes that may have occurred in the addresses to the jury, and he may have occasion to refer to the evidence where controversy has arisen as to its bearing on a question of fact which the jury has to decide. But it is a matter very much in his discretion whether he can help the jury by resuming the evidence on any particular aspect of the case.” 18. The “utmost care” should be taken to avoid trespassing upon the jury’s province as masters of the facts (Simpson v. HM Advocate (1952) SLT 85) and a presiding judge should always be slow to express his own views on questions of fact in case he thereby influences the jury whose task it is to determine all questions of fact (Brady v. HM Advocate (1986) JC 68). A conviction will be quashed if the Appeal Court finds that the presiding judge unduly impressed his own views on the evidence upon the jury. This may be the case even if the presiding judge attempts to cure this defect by later emphasising that the evidence is entirely a matter for the jury (McArthur v. HM Advocate (1990) SLT 451). 19. The jury may return one of three verdicts: one of guilty and two alternative acquittal verdicts of not guilty or not proven. No reasons for any of the three verdicts are given by the jury. However, by section 106(3)(b) of the 1995 Act, there is a right of appeal in respect of any alleged miscarriage of justice, which includes a miscarriage based on the jury having returned a verdict which no reasonable jury, properly directed, could have returned. Thus a conviction may be quashed or varied when the jury’s verdict is logically inconsistent or lacking in rationality, for example, when they cannot logically acquit on certain counts in an indictment and convict on others (see, for example, Ainsworth v. HM Advocate (1997) SLT 56; Rooney v. HM Advocate [2007] HCJAC 1). 20. The compatibility of the jury system with Article 6 of the Convention was considered in Beggs v. HM Advocate [2010] HCJAC 27, judgment of 9 March 2010. The Appeal Court considered the Second Section’s judgment in Taxquet v. Belgium, no. 926/05, 13 January 2009 (in which the Grand Chamber has subsequently given judgment: Taxquet v. Belgium [GC], no. 926/05, 16 November 2010). It also considered a judgment of the Norwegian Supreme Court in A. v. the Public Prosecution Authority, 2009/397, 12 June 2009, in which Judge Indreberg, giving the lead judgment of the court, considered that the Second Section in Taxquet had not intended to establish a principle that a jury had to give reasons for its decisions. The Appeal Court concluded (at paragraphs 206 and 207): “We find Judge Indreberg’s full and careful analysis of the Taxquet judgment and the earlier Strasbourg jurisprudence highly persuasive and we respectfully agree with her that the judgment is not to be read as imposing a requirement that a jury supply reasons for its verdict. Just as in any other jury trial in Scotland, the verdict returned by the jury in the present case is not returned in isolation. It is given within a framework which includes, in particular, the speeches to the jury by those advocating the prosecution and the defence and the directions given to the jury by the trial judge. It is not suggested that the address by the trial Advocate depute in this case did not set out clearly the nature of the Crown case and the evidence which the Crown invited the jury to accept and acceptance of which was necessary if the jury were to return a guilty verdict. Nor is it suggested that the address by defence counsel did not clearly present to the jury the basis upon which it was contended that guilt was not established and that the appellant should be acquitted. It is also not suggested that the trial Judge’s charge to the jury did not adequately identify all the matters which the Crown had to establish, or fail to analyse or describe the necessary elements or ingredients in the offence. Accordingly, from that framework and also from the evidence in the case, the basis of the conviction is discernable. With a jury verdict thus placed in such a framework, we do not consider, having regard to the case law of the ECtHR to which we were referred, that the fact that a jury does not supply reasons involves an infraction of the fair trial requirements of Article 6 of the Convention.” 21. The current versions of sections 274 and 275 of the 1995 Act were introduced by the Scottish Parliament by the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002. They provide as follows: “274 Restrictions on evidence relating to sexual offences (1) In the trial of a person charged with an offence to which section 288C of this Act applies, the court shall not admit, or allow questioning designed to elicit, evidence which shows or tends to show that the complainer— (a) is not of good character (whether in relation to sexual matters or otherwise); (b) has, at any time, engaged in sexual behaviour not forming part of the subject matter of the charge; (c) has, at any time (other than shortly before, at the same time as or shortly after the acts which form part of the subject matter of the charge), engaged in such behaviour, not being sexual behaviour, as might found the inference that the complainer— (i) is likely to have consented to those acts; or (ii) is not a credible or reliable witness; or (d) has, at any time, been subject to any such condition or predisposition as might found the inference referred to in sub-paragraph (c) above. 275 Exceptions to restrictions under section 274. S (1) The court may, on application made to it, admit such evidence or allow such questioning as is referred to in subsection (1) of section 274 of this Act if satisfied that— (a) the evidence or questioning will relate only to a specific occurrence or occurrences of sexual or other behaviour or to specific facts demonstrating— (i) the complainer’s character; or (ii) any condition or predisposition to which the complainer is or has been subject; (b) that occurrence or those occurrences of behaviour or facts are relevant to establishing whether the accused is guilty of the offence with which he is charged; and (c) the probative value of the evidence sought to be admitted or elicited is significant and is likely to outweigh any risk of prejudice to the proper administration of justice arising from its being admitted or elicited. (2) In subsection (1) above— (a) the reference to an occurrence or occurrences of sexual behaviour includes a reference to undergoing or being made subject to any experience of a sexual nature; (b) ‘the proper administration of justice’ includes— (i) appropriate protection of a complainer’s dignity and privacy; and (ii) ensuring that the facts and circumstances of which a jury is made aware are, in cases of offences to which section 288C of this Act applies, relevant to an issue which is to be put before the jury and commensurate to the importance of that issue to the jury’s verdict...” 22. The 2002 Act was preceded by a public consultation and a Policy Memorandum, which was published by the Scottish Ministers. The Policy Memorandum stated that evidence as to the sexual history and character of a complainer in sexual offences was rarely relevant and, even where it was, its probative value was frequently weak when compared with its prejudicial effect. It involved invasion of the complainer’s privacy and dignity and diversion from the issues which required to be determined at trial. 23. Sections 274 and 275 were considered to be compatible with Article 6 of the Convention by the High Court of Justiciary in Moir (Mitchell John) v. HM Advocate (also known as MM v. HM Advocate) (2005) 1 JC 102, where the appellant faced trial on charges of rape and sexual assault. The Lord Justice Clerk, giving the opinion of the court, referred first to the “twin myths” that, in a rape case, a complainer’s previous sexual experience or adverse sexual reputation made it more likely that she consented to intercourse and made it less likely that she was a credible witness. His Lordship continued: “The embarrassment and humiliation of a complainer in a rape trial is a genuine social problem. Counsel agree that the protection of the complainer from unfair and intrusive attacks on her sexual history or character and the exclusion of evidence tendered in pursuit of the twin myths to which I have referred are, in general, legitimate legislative aims that recognise the complainer’s rights to privacy under article 8 (cf R v A (No 2), [2002] 1 AC 45, L Hope of Craighead at paras. [1], [29]-[33]; SN v Sweden, No. 34209/96, 2 July 2002, unrepd, at para 47). [30] But the protection of the complainer cannot be seen apart from the basic principles of fairness in Scottish criminal procedure which entitle everyone accused of a crime to defend himself, to confront his accusers and to have a fair opportunity to put his own case. These principles underpin a value that is fundamental to criminal jurisprudence in a free society, namely the protection of the citizen from being wrongly convicted. [31] The difficult problem of reform in this emotive branch of the law is to reconcile the legislative aims to which I have referred with the basic principles of fairness (SN v Sweden, supra, at para [47]). Although article 6 expresses the right to a fair trial in unqualified terms, what is required for fairness may vary according to context (cf International Transport Roth GmbH v Home Secretary, [2002] 3 WLR 344, Laws LJ at para 84). Individual evidential or procedural rules may be devised to take account of rights and interests other than those of the accused. Such interests include respect for the complainer’s rights under article 8 (cf Doorson v the Netherlands, supra, at para 70), and the public interest in the detection and prosecution of crime. The protection of such interests is a clear and proper public objective that justifies a legislature in qualifying to a limited extent the constituent rights comprised within article 6 (Brown v Stott, supra, Lord Bingham of Cornhill at p 60A); but the legislature cannot qualify them to such an extent that the overall fairness of the trial is compromised (Brown v Stott, supra; Rowe and Davis v United Kingdom, supra, at para 61). [32] In my opinion, the primary aim of the 2002 legislation and the subordinate and specific aim set out in paragraph 36 of the Policy Memorandum (supra), are both legitimate legislative aims. The balancing exercise by which those aims are to be achieved without prejudice to the overall fairness of the trial lies in the first instance within the province of the legislature. The underlying aim of section 274 involves a sensitive social issue that is more appropriate for the consideration of the legislature than that of the courts. In my opinion, the enactment of sections 274 and 275 was within the legitimate area of discretion of the Scottish Parliament. The Parliament had an evidential basis on which to exercise its judgment in the matter, namely the research evidence referred to in the Policy Memorandum, supported by the evidence of two of its authors to the Justice 2 Committee. The underlying policy was fully considered and tested during the legislative process. The policy justification was, in my view, coherent. [33] But although the legislation is directed to legitimate aims, there remains the question whether the restrictions that it imposes on the defence are greater than are strictly necessary for the achievement of those aims (cf Rowe and Davis v United Kingdom, (2000) 30 EHRR 1, at para 61; Doorson v The Netherlands, (1996) 22 EHRR 330; Brown v Stott, supra). [34] If section 274 had imposed an absolute prohibition on the questioning or evidence to which it refers, there would have been a violation of article 6 (cp R v Seaboyer, supra, McLachlin J at pp 264-267; Sporrong and Lonnroth v Swedeneg Cumming v HM Adv, 2003 SCCR 261, at paras [10], [16]). [35] The decision of the court under section 275 will in every case depend on the nature of the prosecution case and of the proposed questioning or evidence. The probative value of evidence that the complainer had a sexual experience with another man may be much less than that of evidence that she had a sexual relationship with the accused; and there may be strong reasons for the court’s allowing reference to a matter affecting the complainer’s character that has no conceivable sexual connotations; for example, a previous conviction of the complainer for perjury or for perverting the course of justice, or some mental condition of the complainer that predisposes her to fantasise or to exaggerate. [36] Section 275, in my view, is a reasonable and flexible response to the problem and a legitimate means of achieving the legislative objective (R v A (No 2), supra, Lord Hope of Craighead at paras 90-96, 99, 102-103). It lies within the discretionary area of the judgment that is confided to the Parliament (R v DPP, ex p Kebilene, [2002] 2 AC 326, at p 381; International Transport Roth GmbH v Home Secretary, supra, Laws LJ at paras 80-87) and in my view meets the requirements of proportionality (De Freitas v Minister of Agriculture, [1999] 1 AC 69, Lord Clyde at p 80).” 24. The accused in that case was subsequently convicted and appealed (Moir v. HM Advocate 2007 SLT 452). The conviction was quashed on different grounds. However, in respect of section 274, the Appeal Court confirmed that “behaviour” in that section should not be given a restrictive meaning; it would also include acts or omissions of the complainer and statements made by him or her, provided that they were relevant to whether the complainer was likely to have consented to the sexual acts alleged or reflect upon his or her credibility or reliability. | 0 |
dev | 001-86605 | ENG | RUS | CHAMBER | 2,008 | CASE OF UTSAYEVA AND OTHERS v. RUSSIA | 3 | Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);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 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Effective investigation);Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | 7. The applicants are: (1) Mrs Satsita Utsayeva, born in 1954; (2) Mr Aslambek Utsayev, born in 1948; (3) Mrs Khava Muslimova, born in 1986; (4) Mrs Belita Dadayeva, born in 1952; (5) Mrs Yakhita Taysumova, born in 1985; (6) Mrs Zulay Abdulazimova, born in 1943; (7) Mrs Birlant Tovmerzayeva, born in 1943; (8) Mrs Larisa Tovmerzayeva, born in 1968. 8. They are Russian nationals and residents of the village of Novye Atagi, Shali district, Chechnya. 9. The facts of the case are linked to the application Imakayeva v. Russia (no. 7615/02, ECHR 2006... (extracts)), in that the four relatives of the applicants in the present case were detained together with the husband of Marzet Imakayeva, Said-Magomed Imakayev, on 2 June 2002 in the village of Novye Atagi (see below). The facts of the present case, as submitted by the parties, may be summarised as follows. 10. The applicants submitted that the village of Novye Atagi had been under the firm control of the Russian military since early 2000. Military checkpoints had been established at all roads leading into and out of the village. 11. The applicants submitted that early in the morning of 2 June 2002 a convoy including at least six armoured personnel carriers (APCs) and at least one other military vehicle - a UAZ all-terrain car - conducted a “sweeping” operation in the village of Novye Atagi. The local residents noted the hull numbers of three APCs: 569, 889 and 1252, and partially of the UAZ vehicle as “344”. The hull numbers of the other vehicles were obscured. The servicemen went to six houses during the operation and detained five men. The applicants submitted numerous affidavits about the events of 2 June 2002, produced by the family members of the detained and the neighbours. They also submitted a hand-drawn map of the village, indicating the location of the roadblocks and of the houses of the five persons detained on 2 June 2002. 12. The first and second applicants are husband and wife. They were residents of Grozny, but have lived for several years at 22 Nizhnya Street, Novye Atagi, as internally displaced persons. Their son Islam Utsayev, born in 1976, had lived with them in Novye Atagi since 1999. He had previously been a student at the Grozny University philological faculty, but in October 1999 he was seriously injured during a rocket attack on the Grozny central market. Following that injury he underwent several operations and left the university. He worked as a car mechanic and supported his parents, who were unemployed. The couple's second son had died during the hostilities of 1994–1996, and a third son had been detained by security services and ill-treated in 2001, following which he suffered from poor health. The third applicant is Islam Utsayev's wife. 13. On the morning on 2 June 2002 the first two applicants, Islam Utsayev and his wife (the third applicant), their other son Bislan U. and his wife Liza Kh., were at their home at 22 Nizhnya Street. At that time the third applicant and Liza Kh. were both pregnant. It was still dark outside and the family was sleeping when, at about 5.30 a.m., an APC knocked down the fence and drove into the courtyard. A group of about twenty heavily armed servicemen in uniform entered the house and woke up the family. Four of the servicemen were masked, the rest were not. The applicants described them as “contract soldiers”, aged between 30 and 40. They had Slavic features and spoke unaccented Russian. More servicemen remained outside on the hull of the APC, while others took positions around the house. 14. Without producing any warrant or explanation, the soldiers forced the Utsayev family members into the courtyard and onto the ground. They surrounded Islam Utsayev and beat him. The second and third applicants were also beaten when they asked for explanations, and the third applicant, Islam Utsayev's pregnant wife, submitted that she had a miscarriage later that day. Islam Utsayev, who was taken from his bed barefoot and wearing only a light T-shirt, was hooded, his hands were tied behind his back and he was forced into an APC. The first applicant tried to climb onto the APC to give her son footwear, but was pushed away and hit by several soldiers. The soldiers fired into the air from automatic rifles in order to scare away those neighbours who tried to intervene. 15. In support of their allegations the first and the second applicants submitted detailed statements to the SRJI, produced in 2003 and in March 2007. The third applicant also produced a statement in 2003. In particular, they explained that the third applicant had been in the first month of pregnancy and that after the miscarriage they had not applied to any medical institution, nor had they complained anywhere about this incident. 16. In their observations the Government submitted that no information about the alleged beatings of the second and third applicants or a miscarriage by the third applicant had been recorded in the medical institutions of the Shali district. They also stated that the third applicant's current place of residence was unknown and that her relatives had refused to give any evidence on the subject. 17. The fourth and fifth applicants are the mother and sister of Movsar Taysumov, born in 1980. They lived at 1 Lenin Street in Novye Atagi. Movsar Taysumov worked as a guard at the local school and was not married. His brother Masud was killed by unknown persons in January 2002, along with two other men who had gone to gather firewood near the river Argun. In May 2002 his father, the fourth applicant's husband, died of a heart attack. 18. At about 6 a.m. on the morning on 2 June 2002 the fourth applicant and her son Movsar Taysumov were at their home when an APC pulled up outside the house. The fourth applicant was at her morning prayers, and her son Movsar was still asleep. The fifth applicant, Movsar's sister, was in hospital for a check-up. Four men in green uniform entered the house. They were not wearing masks and the fourth applicant reported that they had Slavic features and spoke unaccented Russian. 19. The military did not introduce themselves or give reasons for the visit. They woke up Movsar Taysumov and ordered him to dress quickly. They said they needed to question him, collected his passport and took him outside. The fourth applicant followed them and pleaded with them to question her son at home. An officer told her that if he was innocent he would soon return. The soldiers put Movsar Taysumov into an APC. The fourth applicant tried to climb onto the hull, but the soldiers swore at her and hit her with rifle butts until she fell. Several neighbours tried to come closer and intervene, but soldiers who had taken positions around the house shot in the air as a warning. 20. Once Movsar Taysumov was inside, the APC drove further along Lenina Street. The fourth applicant and her neighbours clearly noted its hull number as 569. The fourth applicant followed it along the street and witnessed from a distance how it stopped at the Tovmerzayevs' house and how another person (Masud Tovmerzayev) was put into it. The fourth applicant also noticed several other APCs along the street, though she did not notice their numbers. 21. The sixth applicant is the mother of Idris Abdulazimov, who was born in 1984. In 1997 he finished the seventh grade at school and thereafter helped his mother around the house. They lived at 19 Lenina Street with the sixth applicant's three other children. 22. On 2 June 2002 the sixth applicant, her daughter Louiza and three sons, Akhmad, Vakhid and Idris, were sleeping at their home. At about 6 a.m. an APC stopped at their house and a group of about 30 military servicemen surrounded the house, about half of them wearing masks. The applicant described them as heavily armed, wearing new camouflage uniforms and speaking unaccented Russian. Approximately ten servicemen entered the house, shouting and swearing. They pulled the sixth applicant's three sons onto the floor and asked their names. They then told Idris to dress. The applicant's oldest son asked them to take him instead of his 18-old brother, but one of the soldiers said “We don't need you”. They took Idris Abdulazimov and placed him in an APC with an obscured number. The applicant tried to get onto the APC, but her eldest son pulled her off. 23. The sixth applicant asked a soldier with Asian features on the hull of the APC where they were going, and he responded that they were going to the military commander's office. The APC drove along and stopped by a house further down the street to detain another person who was not at home. The sixth applicant followed the vehicle to the cemetery at the end of the village and then returned home. 24. The seventh and eighth applicants are the mother and sister of Masud Tovmerzayev, born in 1974. He was unmarried and had worked at a shoe factory and at the market. They lived at 62 Lenina Street, together with the seventh applicant's other children and grandchildren. 25. On 2 June 2002 the seventh and eighth applicants and Masud Tovmerzayev were at home. At about 6 a.m. the applicants were awake, because the seventh applicant was planning to go to town and had to catch a bus; the eighth applicant had to take care of the family's cattle. Masud Tovmerzayev was still in bed. 26. The seventh applicant opened the gate and at that point an APC stopped outside their house. The woman was surprised and asked them if they were going to conduct a “sweeping” operation, but they did not answer. One of the soldiers on the APC asked “Which gate?” and another pointed to the applicant's. Immediately 20-25 armed servicemen entered the courtyard. The applicants and neighbours described them as well armed and wearing green camouflage uniforms; some of them were masked. The seventh applicant noted several men with Asian features among the servicemen. 27. The eighth applicant asked the seventh applicant to go into the house and watch to ensure that the soldiers did not “plant” anything there. The soldiers asked the eighth applicant where her brother was and went to his room. One of them had a piece of paper and asked her “Is that Masud?” When she answered in the affirmative they put him on the floor and handcuffed him. One of the servicemen asked about weapons, while others were searching the house and the car. They then placed Masud Tovmerzayev in APC no. 569, without permitting him to dress or to put on footwear, and drove away. The neighbours were not allowed to approach because the soldiers shot into the air. Masud Tovmerzayev's aunt, who came to the house because of the noise and tried to intervene, was pulled by the hair and hit by a soldier. 28. Finally, at around 6.20 a.m. on 2 June 2002 servicemen on APCs 889 and 1252 and UAZ 344 drove to Ordzhonikidze Street, two blocks away from the Tovmerzayevs' house. At 11 Ordzhonikidze Street they detained Said-Magomed Imakayev, husband of Marzet Imakayeva. After the stop at the Imakayevs' house the APCs and other military vehicles left Novye Atagi. Some of the military vehicles apparently drove towards Grozny, while others went in the direction of the 70th regiment stationed near Shali. The families of the five men detained on 2 June 2002 in Novye Atagi have had no news of them since. 29. In their observations the Government did not dispute most of the facts as presented by the applicants. They accepted as established that “on 2 June 2002 at about 5.30 a.m. unidentified persons wearing camouflaged uniforms and masks and armed with automatic weapons, supported by armoured vehicles, arrived in Novye Atagi and detained Utsayev I.A., Taysumov M.M., Abdulazimov I.A., Tovmerzayev M.E. and Imakayev S.-M.U. These men were subsequently taken by the unidentified persons in an unknown direction.” 30. Immediately after the detention of their family members the applicants started to search for them. The search was primarily carried out by the mothers of the detained men, together with Marzet Imakayeva, the applicant in application no. 7615/02. On numerous occasions, both in person and in writing, they applied to prosecutors at various levels, to the Ministry of the Interior, to the Special Envoy of the Russian President in the Chechen Republic for rights and freedoms, to military commanders, the Federal Security Service (FSB), to the administrative authorities in Chechnya, to the media and to public figures. The applicants also personally visited detention centres, police stations, military bases and prisons in Chechnya as well as further afield in the Northern Caucasus. 31. On 2 June 2002, immediately after the arrests, the four mothers, together with Marzet Imakayeva and Abdula D., the head of the Novye Atagi administration, drove in the Abdulazimovs' family minibus to Shali, the district centre, to inquire about the whereabouts of their relatives. At the military commander's office in Shali the applicants unsuccessfully sought to meet with the commander, General N. They were told by the staff at the military commander's office that they had not received any detainees that morning. They received a similar answer at the police station. 32. The next day, on 3 June 2002, the applicants again travelled to Shali. Abdula D., the head of the village administration, was permitted to meet with General N., who allegedly confirmed to him that the men had been detained at the military commander's office and would be released in three days. 33. Having waited for three days, the applicants again visited the commander's office in Shali, accompanied by the head of the village administration. About ten days later the commander's office staff denied that the detainees had been there. 34. At some point in August 2002 the applicants managed to meet with General N., who denied that his servicemen had participated in a military operation in Novye Atagi on the date in question. At that time the applicants spotted APC no. 569 in the courtyard of the commander's office. At their insistence the commander questioned the driver of the vehicle about the events of 2 June 2002. The driver confirmed that two men had been detained and driven away in the APC on 2 June 2002, but claimed that they had been handed over to other military servicemen at a checkpoint. 35. The applicants unsuccessfully tried to meet with the officers of the military prosecutor's office in Shali in order to have the drivers of the APCs and other servicemen questioned. 36. In addition to personal visits, the applicants addressed numerous letters to the prosecutors and other authorities, in which they set out the facts of their relatives' detention and asked for assistance and details about the investigation. The applicants have submitted copies of the more or less standard letters they wrote. 37. The applicants received hardly any substantive information from official bodies about the investigation into the disappearances. On several occasions they were sent copies of letters forwarding their requests to the different prosecutors' services. Below is a summary of letters retained by the applicants and the replies they received from the authorities. 38. On 3 June 2002 the first applicant wrote to the head of the Shali district administration in relation to Islam Utsayev's detention and requested assistance in finding him. She also mentioned the “rough” treatment meted out to herself and other family members in the course of her son's arrest. 39. Either on the same day or immediately after, in three identically worded complaints, the applicant wrote to the military commander of the Shali district General N., the military prosecutor of the Shali district and the head of the Shali temporary district police department (VOVD). 40. On 5 June 2002 the first applicant wrote to the military prosecutors of military units nos. 20116 and 20102, based in Shali and Khankala (Grozny), stating details of her son's detention and requesting their help in finding him. Also on 5 June 2002 the first applicant wrote a similar letter to the head of the Novye Atagi village administration, Abdula D. 41. On 8 June 2002 the first applicant wrote to the State Duma member for Chechnya and to the Special Envoy of the Russian President in the Chechen Republic for rights and freedoms. 42. On 20 June 2002 the first applicant wrote a complaint to the Shali district prosecutor's office (“the district prosecutor's office”), with copies to the head of administration of Chechnya and the commander of the federal forces in Chechnya. She stated the facts of her son's detention and asked for assistance in finding him. She submitted that the servicemen had thrown her son on the floor and taken him away undressed, beaten her husband on the head with a rifle butt and had treated the women of the house “rudely and incorrectly”. 43. On 1 July 2002 the applicant received a reply from the member of the State Duma for Chechnya, in which he informed her that her letter had been forwarded to the Chechnya Prosecutor's Office and that he would try to establish whether her son had been detained by the authorities. 44. On 17 September 2002 the first applicant again wrote to the military prosecutor of military unit no. 20116 and the heads of administration of Novye Atagi and the Shali district, with requests for information about Islam Utsayev. 45. On 30 September 2002 the district prosecutor office informed the applicant that the investigation into her son's kidnapping had been suspended. The letter did not give reasons for the suspension, but informed her that she could appeal against the decision to the district prosecutor or to a сourt. 46. On 3 October 2002 the first applicant received a copy of a letter from the Chechnya Prosecutor's Office, forwarding her compliant to the district prosecutor's office. 47. On 7 October 2002 the Chechnya Prosecutor's Office informed the first applicant that the investigation into her son's kidnapping had been suspended on 30 September 2002 due to a failure to identify the culprits (Article 208 part 1 of the Code of Criminal Procedure). The applicant was invited to address further queries to the district prosecutor's office. 48. On 9 October and on 23 October 2002 the district prosecutor's office acknowledged receipt of the applicant's complaints and informed her that the investigation into Islam Utsayev's “disappearance” had been suspended. 49. On 14 November 2002 the Chief Military Prosecutor's Office requested the military prosecutor's office of the United Group Alignment in the Northern Caucasus (UGA) to investigate the “disappearance” of the first applicant's son and of the other men detained on 2 June 2002. 50. On 5 March 2003 the applicant submitted a complaint (dated 10 December 2002) to the military prosecutor of the UGA, summarising the facts of her son's disappearance and the efforts to find him and requesting assistance. 51. On 6 February 2003 the Chechnya Prosecutor's Office forwarded complaints by three applicants (Mrs Utsayeva, Mrs Tovmerzayeva and Mrs Abdulazimova) to the district prosecutor's office. On 12 February and 14 March 2003 the three women were informed by the district prosecutor's office that their complaints would be looked into. 52. On 28 February 2003 the Chechnya Prosecutor's Office informed the first applicant that they had forwarded her letter to the military prosecutor of the UGA. The letter stated that investigation file no. 59140 had been sent to the military prosecutor's office on 29 October 2002. 53. In March 2003 the Government of Chechnya twice informed the first applicant that her complaints had been forwarded to the military prosecutors, to the Chechnya Prosecutor's Office and to the local department of the Ministry of the Interior. 54. On 19 April 2003 the first applicant asked the district prosecutor's office to give her an update on the progress of the investigation and to grant her victim status in the proceedings. 55. On 25 April 2003 the military prosecutor of the UGA forwarded the applicant's complaint to the military prosecutor of military unit no. 20116. 56. On 23 May 2003 the Chechnya Ministry of the Interior replied to the deputy head of the investigative department of the Southern Federal Circuit, stating that the criminal case opened into Islam Utsayev's disappearance had been forwarded to the military prosecutors on 1 August 2002. 57. On 27 May 2003 the military prosecutor of military unit no. 20102 informed the first applicant that the materials of the case file did not prove the involvement of military servicemen in the crime under investigation. 58. On 2 June, 6 June and 25 June 2003 the Chechnya Prosecutor's Office informed the applicant in similarly worded letters that the decision of 30 September 2002 to suspend the investigation into her son's kidnapping had been quashed and that the investigation had been reopened on 29 May 2003. 59. On 18 June 2003 the military commander of the Shali district informed the applicant that the district prosecutor's office was investigating her son's “disappearance”. 60. On 12 August 2003 the military prosecutor of military unit no. 20116 replied to the first applicant's complaints of December 2002 and March and May 2003. The letter stated that the criminal investigation opened in relation to the kidnapping of four men in June 2002 was pending with that office. The letter did not say whether the investigation was suspended or ongoing, but invited the applicant to come to the office to take part in procedural steps and to obtain access to the case file. The letter also stated that no evidence had been obtained which could link the kidnapping to any military servicemen. 61. At some point the applicant wrote to the all-Russian NTV channel, addressing their programme “Attention: Search!” She asked the journalists to help in finding her son Islam Utsayev. In reply the NTV stated that work in Chechnya was too dangerous for journalists. 62. On 2 July 2002 the fourth applicant received a copy of a letter from the military prosecutor of military unit no. 20116 to the Chechnya Prosecutor's Office, stating that there was no evidence to conclude that the criminal acts in question had been committed by UGA servicemen. 63. On 16 July 2002 the district prosecutor's office informed the fourth applicant that an investigation had been opened by their office, under Article 126 part 2 of the Criminal Code, in relation to the kidnapping of Movsar Taysumov. 64. On 25 July and 10 September 2002 the Chechnya Government informed the fourth applicant that her complaints had been forwarded to the district prosecutor's office. 65. On 16 September 2002 the district prosecutor's office informed the applicant that the investigation into her son's kidnapping (file no. 59155) had been suspended. The letter did not give reasons for the suspension, but informed her that she could appeal against the decision to the Shali District Prosecutor or to a сourt. 66. On 2 October 2002 the military prosecutor for the Northern Caucasus Military Circuit forwarded the applicant's complaint to the military prosecutor of military unit no. 20116. 67. On 15 November the district prosecutor's office informed the fourth applicant that her complaint of 12 November 2002 about her son's disappearance could not be considered, because it had not been signed by her. The applicant was invited to the prosecutor's office to obtain information concerning the criminal investigation. 68. On 5 March 2003 the applicant's complaint dated 15 December 2002 was accepted by the military prosecutor of the UGA. The complaint summarised the applicant's efforts to find her son and requested urgent assistance. 69. On 19 February 2003 the district prosecutor's office informed the fourth applicant, in reply to a request from Amnesty International made on her behalf, that criminal case no. 59155 had been opened by that office in relation to her son's kidnapping. All necessary and possible measures had been taken, but on 15 September 2002 the investigation had been suspended due to the failure to identify the culprits. The letter further informed the applicant that measures to find her son were continuing and that she could challenge the decision to suspend the investigation. 70. On 26 March 2003 the military prosecutor of military unit no. 20116 informed the fourth applicant that troops under their jurisdiction had not detained her son. The letter advised her to approach the local police. 71. On 5 April 2003 the applicant complained to the district prosecutor's office. She stated that she had not received any information about the course of the investigation and requested updated information about its progress, and asked that she be granted victim status. 72. On 15 April 2003 the district prosecutor's office informed the fourth applicant that criminal case no. 59155 had been suspended. Actions aimed at locating Movsar Taysumov's whereabouts would continue. The applicant was also informed that she had been granted victim status. 73. On an unspecified date Abdula D., the head of the Novye Atagi village administration, addressed the Special Envoy of the Russian President in the Southern Federal Circuit, asking him to intervene and help to find Movsar Taysumov. 74. On 25 November 2004 the fourth applicant was granted victim status in criminal investigation no. 59155 into her son's abduction. 75. On 5 June 2002 the sixth applicant prepared a letter to the military prosecutor of military unit no. 20116 about the detention of her son, Idris Abdulazimov. The complaint was submitted on 19 June 2002. 76. On 5 June 2002 the sixth applicant complained about her son's detention and requested his release and information about his whereabouts from the district prosecutor's office, the military commander and the head of the VOVD. 77. On 2 July 2002 the sixth applicant received a copy of the letter from the military prosecutor of military unit no. 20116 to the Chechnya Prosecutor's Office, which stated that there was no evidence to conclude that the criminal acts had been committed by UGA servicemen. 78. On 16 July 2002 the district prosecutor's office informed the applicant that an investigation had been opened by their office in relation to the kidnapping of her son under Article 126 part 2 of the Criminal Code. 79. On 8 August 2002 the applicant was informed by the district prosecutor's office that the file number allocated to the investigation into her son's kidnapping was 59159. 80. On 23 August 2002 the Chechnya Prosecutor's Office forwarded the applicant's complaint to the district prosecutor's office. 81. On 3 September 2002 the Chechnya Government informed the sixth applicant that her complaints had been forwarded to the Chechnya Department of the Interior, the district prosecutor's office and the VOVD, the military prosecutor's office and the Chechnya Prosecutor's Office. 82. On 4 September 2002 the district prosecutor's office informed the applicant that they were investigating criminal case no. 59159 and taking steps to establish her son's whereabouts. 83. On 16 September 2002 the district prosecutor's office informed the sixth applicant that the investigation into her son's kidnapping had been suspended. 84. On 2 October 2002 the military prosecutor for the Northern Caucasus military circuit forwarded the applicant's complaint to the military prosecutor of military unit no. 20116. 85. On 22 November 2002 the military prosecutor of military unit no. 20116 informed the applicant that they had requested information about Idris Abdulazimov from the Chechnya department of the FSB, the commander of the UGA and the head of the operative headquarters for coordination of the anti-terrorist operation in the Northern Caucasus. 86. On 16 January 2003 the Chechnya department of the FSB replied to the applicant that they had no information about the whereabouts or activities of her son. It further informed the applicant that her complaint had been forwarded to the military prosecutors. 87. On 6 February 2003 the Chechnya Prosecutor's Office forwarded complaints by three applicants (Mrs Utsayeva, Mrs Tovmerzayeva and Mrs Abdulazimova) to the district prosecutor's office. On 12 February and 14 March 2003 the three women were informed by that office that their complaints would be taken into account. 88. On 5 April 2003 the applicant wrote to the district prosecutor's office. She stated that she had not received any reliable information about the course of the investigation, requested updated information about its progress and asked that she be granted victim status. 89. On 6 June 2003 the district prosecutor informed the sixth applicant that the criminal investigation into the kidnapping of her son had been suspended. Actions aimed at locating Mr Abdulazimov's whereabouts were continuing. 90. On an unspecified date Abdula D., the head of the Novye Atagi village administration, addressed the Special Envoy of the Russian President in the Southern Federal Circuit, asking him to intervene and help find the sixth applicant's son. 91. On 2 July 2002 the seventh applicant received a copy of a letter from the military prosecutor of military unit no. 20116 to the Chechnya Prosecutor's Office, stating that there was no evidence to conclude that the criminal acts had been committed by UGA servicemen. 92. On 16 July 2002 the district prosecutor's office informed the applicant that an investigation had been opened by their office, under Article 126 part 2 of the Criminal Code, in relation to the kidnapping of Masud Tovmerzayev. 93. On 2 August 2002 the district prosecutor's office informed the applicant that a criminal investigation into her son's kidnapping had been opened under file no. 59154. 94. On 4 September 2002 the Chechnya Prosecutor's Office informed the seventh applicant that the district prosecutor's office was investigating criminal case no. 59154 and taking steps to establish her son's whereabouts. 95. On 10 September 2002 the Government of Chechnya informed the seventh applicant that her complaints had been forwarded to the district prosecutor's office. 96. On 16 September and on 23 September 2002 the district prosecutor's office informed the seventh applicant that the investigation into her son's kidnapping had been suspended and that she could appeal against the decision to a prosecutor or to the court. 97. On 17 September 2002 the applicant wrote to the head of the Novye Atagi administration and asked for his help in finding her son. 98. On 2 October 2002 the military prosecutor for the Northern Caucasus military circuit forwarded the seventh applicant's complaint to the military prosecutor of military unit no. 20116. 99. On 6 November 2002 the military prosecutor of military unit no. 20116 informed the seventh applicant that they were not aware of Masud Tovmerzayev's detention and had not issued any documents in that respect. The letter further stated that a question about the applicant's son's whereabouts had been put to the UGA headquarters and that she should contact the local department of the interior in connection with all issues related to the search for the missing persons. 100. On 16 January 2003 the Chechnya department of the FSB replied to the applicant that they had no information about the whereabouts of her son. It further informed the applicant that her complaint had been forwarded to the military prosecutors. 101. On 6 February 2003 the Chechnya Prosecutor's Office forwarded complaints by three applicants (Mrs Utsayeva, Mrs Tovmerzayeva and Mrs Abdulazimova) to the district prosecutor's office. On 12 February and 14 March 2003 the three women were informed by that office that their complaints would be taken into account. 102. On 5 March 2003 the seventh applicant's letter, bearing the date of 5 June 2002, was accepted by the military prosecutor of the UGA. The letter stated the circumstances of her son's detention and requested information about his whereabouts and the reasons for his detention. 103. On 5 April 2003 the applicant wrote to the district prosecutor's office. She stated that she had not received any reliable information about the course of the investigation, requested updated information about its progress and asked to be granted victim status. 104. On 16 April 2003 the district prosecutor's office responded that the investigation in criminal case no. 59154 had been suspended. 105. On an unspecified date Abdula D., the head of the Novye Atagi administration, addressed the Special Envoy of the Russian President in the Southern Federal Circuit, asking him to intervene and help in finding the seventh applicant's son. 106. The applicants were thus informed that criminal investigations had been opened in respect of the kidnappings of their relatives: no. 59176 in respect of Islam Utsayev, no. 59155 in respect of Movsar Taysumov, no. 59159 in respect of Idris Abdulazimov and no. 59154 in respect of Masud Tovmerzayev. From the letters received from the different authorities, the applicants could also understand that at some point the investigations were joined under no. 59140, initially opened in relation to the kidnapping of Said-Magomed Imakayev. The applicants were not informed by the prosecutors which steps had been taken in order to find their relatives, nor were they allowed access to the case files. In June 2003 the first applicant was informed by the Chechnya Prosecutor's Office that the decision to suspend the investigation into her son's kidnapping had been quashed and that the investigation had been reopened. None of the applicants have received information on the progress of the investigation since that date. 107. The applicants also understood that in October 2002 the investigation had been transferred from the district prosecutor's office to the military prosecutors. At some subsequent point the case file was returned to the district office. However in August 2003 the military prosecutor of military unit no. 20116 invited the first applicant to visit the office and informed her that the file was with them. The letter did not indicate whether the proceedings were pending or suspended at that time. 108. In their observations submitted in December 2004 the Government did not dispute the information concerning the apprehension and investigation into the kidnapping of Islam Utsayev, Movsar Taysumov, Idris Abdulazimov and Masud Tovmerzayev. Referring to the information obtained from the General Prosecutor's Office, the Government stated: “On 2 June 2002 at about 5.30 a.m. unidentified persons wearing camouflaged uniforms and masks and armed with automatic weapons, supported by armoured vehicles, had arrived to Novye Atagi and detained Utsayev I.A., Taysumov M.M., Abdulazimov I.A., Tovmerzayev M.E. and Imakayev S.-M.U. These men were subsequently taken by the unidentified persons to an unknown direction. On 28 June, 15 July and 31 July 2002 the Shali district prosecutor's office opened five criminal investigation files into the kidnappings: nos. 59176, 59155, 59159, 59154 and 59140 under Article 126 part 2 (a) and (g) of the Criminal Code. Criminal investigation file no. 59140 concerning the kidnapping of Imakayev S.-M.U. had been transferred for investigation to the military prosecutor of the UGA.” 109. The Government also stated that the investigation had not confirmed the involvement of federal servicemen in the kidnapping of the applicants' relatives. The indicated APC hull numbers were not listed in the relevant registers. The investigations were adjourned and reopened on several occasions and were most recently resumed on 30 September 2004. Their progress was monitored by the General Prosecutor's Office. 110. In their additional Memorandum submitted in April 2005 the Government submitted further details of the investigations. They stated that criminal case file no. 59176 had been opened on 31 July 2002 into the kidnapping of Islam Utsayev. On the same day the first applicant had been questioned and granted victim status. She was again questioned on 22 June 2003, 30 August 2003 and 18 October 2004. The second applicant was questioned on 18 October 2004 and confirmed the circumstances of his son's detention. Two neighbours were questioned but could not indicate the identity of the kidnappers. The site of the crime was inspected at some point, but no relevant evidence was discovered. 111. According to the Government, criminal case file no. 59155 into the abduction of Movsar Taysumov was opened on 15 June 2002. The fourth applicant was questioned on 16 July 2002, 30 August 2003 and 18 October 2004. She was also granted victim status. In September 2004 two neighbours were questioned by the local police, but they were not aware of the identity of the perpetrators of the crime. 112. The Government further specified that on 15 July 2002 criminal investigation file no. 59159 had been opened into the abduction of Idris Abdulazimov. The sixth applicant was questioned on 16 July 2002 and 27 September 2004. She was also granted victim status in the proceedings. Three of her neighbours and the former military commander of the Shali district, General N., had also been questioned. An inspection of the site of the crime had taken place, but had produced no results. 113. Finally, they submitted that on 15 July 2002 criminal case no. 59140 [this should probably be no. 59154] had been opened into the abduction of Masud Tovmerzayev. The seventh and eighth applicants were questioned and granted victim status on 16 July 2002 and 18 November 2004 respectively. The investigation also questioned five of their neighbours and relatives, the head of the Novye Atagi administration, General N. and a serviceman from the military commander's office. An inspection of the site of the crime had produced no results. 114. No other witnesses to the crimes were identified by the investigation. 115. According to the Government, in the period 2002-2004 a number of information requests were forwarded to the relevant bodies concerning special operations carried out by the military forces. Despite these efforts, no information was obtained which would imply that the four men had been detained by federal forces. Their names were not found in the registers of persons detained on suspicion of committing a criminal offence or arrested by way of administrative procedure. 116. The Government conceded that the four investigations had been repeatedly suspended and reopened, on account of a failure to identify the culprits. They alleged that the victims had been informed of all the decisions made. The proceedings in criminal case no. 59176 had been reopened on 24 March 2005 and, in criminal cases nos. 59154, 59155 and 59159 – on 1 April 2005. 117. In their latest submissions of June 2007 the Government informed the Court that on 6 May 2005 criminal investigation files nos. 59176, 59154, 59155 and 59159 had been joined under no. 59176. The reason for the joinder was the establishment by the investigation of the fact that Mr Utsayev, Mr Abdulazimov, Mr Tovmerzayev and Mr Taysumov had been kidnapped by the same group of unidentified persons, who had travelled around in an APC with hull number 569. 118. The Government also submitted that the investigation had been reopened on 8 December 2006. In December 2006 and January 2007 the investigators questioned four female witnesses and the first, second and sixth applicants, who had victim status in the criminal proceedings. The Government also stated that in December 2006 the investigation requested the Ministry of Defence and the Ministry of the Interior to submit information from their archives about the participation of their personnel in the special operation in Novye Atagi on 2 June 2002. 119. Among the documents submitted by the Government, in a decision of 8 December 2006 the deputy prosecutor of Chechnya ordered that the proceedings be reopened and summarised the information available by that date. According to that document, the investigation had established that the four men had been kidnapped by a group of unidentified persons who had used an APC with hull number 569 and three other APCs. 120. On the same day the prosecutor issued written directions for the investigation. The prosecutor ordered that the bullets and cartridges left behind when the kidnappers had shot in the air to prevent relatives from interfering with the abduction be found, and that ballistic and other expert reports be carried out. He also ordered that information be collected about any special identification marks on the bodies of the missing men, so that a search could be organised through the register of unidentified corpses. He further directed information to be collected from the FSB central archives about the special operations carried out in Novye Atagi in June 2002; for it to be confirmed whether the APC with hull number 569 had indeed been attached to the Shali military commander's office and the crew of that vehicle to be questioned. The document referred to a witness statement by D. who had served in June 2002 in the military commander's office of Shali district and who had been a crew member of APC 569. According to the prosecutor, D. testified that in early June 2002 he and other members of the crew had been involved, using the APC, in a special operation in Novye Atagi and had detained three civilians. After their arrests he had returned to the military commander's office. The three detainees had been taken in three other APCs towards the village of Belgotoy. In view of this testimony, the prosecutor ordered that N., the military commander of Shali district, be questioned and that all details relevant to the special operation of 2 June 2002 in Novye Atagi be obtained from him (establishment of the units that had carried out the special operation, identification and questioning of the officers-in-charge; finding the persons who had been in charge of the detainees and establishing where they had been taken). The document concluded by stating that if sufficient evidence of the involvement of military servicemen in the abduction was obtained, the investigation should be transferred to the military prosecutor's office. 121. On 16 January 2007 the district prosecutor's office decided not to open a criminal investigation into an allegation by the sixth applicant that money and jewellery had been stolen from her home. The decision stated that, in her application of 5 June 2002, the sixth applicant had alleged that during the arrest of her son Idris Abdulazimov the perpetrators had also taken money and valuables. On 16 January 2007 the sixth applicant was questioned and stated that the money and valuables had been found afterwards, but that she had forgotten to inform the investigation of this. On this basis the investigator ordered not to open criminal proceedings into the theft. The decision was countersigned by the sixth applicant. 122. On 20 January 2007 the investigation was adjourned. On 11 May 2007 it was again reopened with instructions to carry out the steps as listed in the prosecutor's decision of 8 December 2006. 123. Despite specific requests by the Court on two occasions, the Government did not submit copies of the documents to which they referred, providing only several copies of decisions to suspend and resume the investigation and to grant victim status, all issued after December 2006, as well as copies of several notifications to the relatives of the adjournment and reopening of the proceedings. Relying on the information obtained from the Prosecutor General's Office, the Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants of criminal proceedings. 124. Marzet Imakayeva, the wife of Said-Magomed Imakayev, the fifth man detained on 2 June 2002 in Novye Atagi, applied to the European Court of Human Rights (see Imakayeva v. Russia, no. 7615/02, 9 November 2006). Within these proceedings the Government first denied that Said-Magomed Imakayev had been apprehended by law-enforcement or security bodies and suggested that he had been abducted by members of a terrorist organisation with a view to discrediting the federal forces. 125. Later both parties submitted to the Court that on 9 July 2004 the criminal investigation into the abduction of Said-Magomed Imakayev had been closed on the ground that no criminal offence had been committed. On 9 July 2004 the applicant's victim status in the criminal proceedings related to the kidnapping of her husband was withdrawn. She was informed at that stage that her husband had been detained by military servicemen and he had been subsequently released. The detention had been carried out in accordance with the Federal Law on the Suppression of Terrorism and the Federal Law on the Federal Security Service. According to the Government, on 2 June 2002 military servicemen, acting in accordance with section 13 of the Suppression of Terrorism Act, had detained Said-Magomed Imakayev on suspicion of involvement in one of the bandit groups active in the district. However, his involvement had not been established, and he had been transferred to the head of the Shali administration (who had subsequently died) with a view to being returned home. Thus, no abduction had been committed and the actions of the servicemen who had detained Mr Imakayev had not constituted any offence. Mr Imakayev's further absence from his place of residence was not connected to his detention by military servicemen, so the applicant had suffered no pecuniary or non-pecuniary damage. The Government did not submit any documents of substance from the investigation file concerning Said-Magomed Imakayev's abduction. 126. In its judgment the Court found it established to the standard of proof “beyond reasonable doubt” that Said-Magomed Imakayev had been detained by the security forces on 2 June 2002. No records had been drawn up in respect of his detention, questioning or release. After that date he “disappeared” and his family had had no news of him. He could thus be presumed dead following unacknowledged detention and the responsibility for his death lay with the State. 127. In August 2004 the applicants informed the Court about two incidents in respect of the second applicant. According to the applicants' representatives, on 4 July 2004 and 30 July 2004 a large group of military personnel arrived at the first and second applicants' house at 22 Nizhnya Street in Novye Atagi. On both occasions the servicemen arrived in the early hours of the morning in several APCs, broke into the house without identifying themselves or giving any reasons for the intrusion, conducted an unsanctioned search and confiscated a number of items. 128. According to the applicants, on 4 July 2004 the servicemen severely beat the second applicant, who is a pensioner and disabled (he is blind in one eye), on his head and torso, knocking him unconscious. They also threatened to shoot the first applicant, her daughter-in-law and two-year old granddaughter. When leaving they took with them household items of some value and a copy of the application to the Court, as well as a file containing correspondence with various authorities maintained by the first applicant in relation to her son's disappearance. 129. The second applicant submitted that he had been severely physically traumatised by the beatings and had difficulty in walking. He submitted that he had visited three hospitals where doctors performed X-rays and confirmed concussions to the ribs and spinal column, but refused to issue him with any medical documents, fearing reprisals. The first applicant also submitted that immediately after the incident she had applied to the prosecutor's office, but they refused to accept her complaint or to conduct an investigation into it. 130. On 30 July 2004 the masked servicemen who arrived at the Utsayevs' family house again searched the house, hit the second applicant in the back several times, dragged him into the garden and dropped him face down. 131. On 18 August 2004 the Court, in accordance with Rule 40 of the Rules of Court, gave notice of the application and of the complaint about harassment to the Russian Government. In their observations the Government stated that a prosecutor's check had been conducted into these complaints. Within this check the first and the second applicants had been questioned but denied that they had submitted such complaints to the European Court. They allegedly stated that on the said dates military servicemen had conducted an identity check in their house, but that no unlawful actions had been committed. On 8 November 2004 the district prosecutor's office refused to initiate criminal proceedings due to an absence of corpus delicti. The Government did not submit any documents relating to these proceedings. 132. In her submissions of March 2005 the fourth applicant alleged that a number of checks had been carried at her house in December 2004 by security servicemen, who failed to identify themselves or to present her with reasons for the searches. 133. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia, no. 40464/02, § 67-69, 10 May 2007. | 1 |
dev | 001-87962 | ENG | ROU | CHAMBER | 2,008 | CASE OF MITREA v. ROMANIA | 4 | Violation of Article 6 - Right to a fair trial | Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra | 4. The applicant was born in 1934 and lives in Baia Mare. 5. On 1 April 2002 the Maramureş County Court ordered a company I.W., the applicant’s former employer, to reinstate him in his post and to pay him compensation. This decision became final. However, on 30 September 2002 the same court granted I.W.’s request and annulled the 1 April 2002 decision (contestaţie în anulare). It proceeded to re-examine the case and dismiss the applicant’s initial action. The 30 September 2002 decision was drafted on 28 October 2002 and typed up on 30 October 2002. In accordance with the rules of procedure, it was not served on the parties. 6. On 18 December 2002 the applicant requested the Procurator-General to lodge an application with the Supreme Court of Justice for an audit setting aside the decision of 30 September 2002 (recurs în anulare). On 20 March 2003, the Procurator-General refused to act upon the applicant’s request. 7. In a decision of 3 February 2000, which was upheld by a final decision of the Maramureş County Court on 18 May 2000, the applicant’s previous employer, a company called M. was ordered to give the applicant his employment record and to pay him 100,000 Old Romanian Lei (ROL) in legal fees. 8. On an unspecified date, the applicant lodged an application with the Baia Mare District Court to enforce that decision. In its defence, M. claimed that it no longer had the applicant’s employment record and that only the most recent employer (I.W.) was allowed to deliver a duplicate. 9. On 15 February 2002 the application was dismissed. The court found, in particular, that the facts of the case confirmed that it was objectively impossible for M. to deliver the applicant’s employment record, as the document was no longer in its possession. 10. The applicant’s appeal was allowed by the Maramureş County Court in a final decision of 17 June 2002, as amended on 12 September 2002. The court imposed a daily penalty on M. of ROL 350,000 from 3 February 2000 until execution and ordered it to pay the applicant ROL 5,712,000 in legal fees. After noting the arguments used by the court at firstinstance in order to find in favour of the debtor, the appeal court stated, in particular, that: “In so far as an irrevocable decision ordered [M.] to deliver to the complainant his employment record, the impediments to compliance referred to by the first-instance court are irrelevant.” 11. On 10 March 2003 M. filed with the Maramureş County Court a request for the annulment (contestaţie în anulare) of the decision of 17 June 2002, on the ground that the County Court had not examined the evidence confirming its inability to comply. 12. The applicant submitted that M. did not have locus standi to request an annulment, since the extraordinary-appeal procedure was only available to the party who had lodged the ordinary appeal. He also contended that the request should be rejected since M. had invoked the same reasons as before the first-instance court and the appeal court. 13. In a final decision of 26 March 2003, the Maramureş County Court, sitting in a different composition from that of 17 June 2002, allowed the request, and quashed the final decision of 17 June 2002 on the merits and the decision of 12 September 2002 amending it. Consequently, it dismissed the applicant’s appeal and upheld the judgment of 15 February 2002. The relevant parts of the decision read as follows: “The request [for annulment] was lodged by [M.], which was the respondent in the appeal proceedings, within the time-limits set out in Article 313 of the Code of Civil Procedure... The court considers that Article 318 of the Code of Civil Procedure is applicable, as the appeal court committed a material error, that is, an obvious material error made by omitting important elements or information from the file which had an influence on the solution adopted. When examining the grounds for appeal, the court should have taken into account the evidence, that is, all elements that confirmed the inability to comply, namely the lack of the applicant’s employment record. The court’s conclusion that those impediments are irrelevant contradicts the evidence.” 14. Article 318 of the Code of Civil Procedure defines a “material error” as one of the grounds for having a final decision quashed by means of a request for annulment (contestaţie în anulare). This Article reads as follows, in so far as relevant: “Decisions rendered by a court of last instance may also be contested by means of a request for annulment, when the decision was based on a material error...” | 1 |
dev | 001-87795 | ENG | SWE | ADMISSIBILITY | 2,008 | GUNEY v. SWEDEN | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall | The applicant, Mr Musa Güney, is a Swedish citizen who was born in 1960. He was represented before the Court by Mr R. Armholt, a lawyer practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Mr C.-H. Ehrenkrona, Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The Tax Authority made a tax audit of a restaurant business, owned by a holding company owned, in its turn, by the applicant and three other persons. Following the audit the Tax Authority, by decisions of 8 December 2004, raised the company’s turnover by 2.7 million Swedish kronor (SEK) and considered that SEK 1.9 million of that amount had been paid to the company owners during the tax assessment years 2002 and 2003. Consequently, by the same decisions, the applicant’s taxable income for both years was raised by SEK 236,581. Moreover, as the revised taxation involved a discretionary assessment due to allegedly undisclosed salary payments in the applicant’s tax returns, tax surcharges (skattetillägg) were imposed on him, amounting to SEK 30,078 and 25,886, respectively, for the two assessment years (in total approximately 6,000 euros (EUR)). The applicant appealed to the County Administrative Court (länsrätten) of the County of Stockholm through his legal counsel. On 14 March 2005 the Tax Authority reconsidered its decisions but did not change them. On 31 August 2005 the applicant applied to the County Administrative Court for legal aid. Referring to Article 6 § 3 (c) of the Convention, he maintained that he had no financial means to pay for legal representation as he had not been granted a respite to pay the tax amounts, that the legal issues were not uncomplicated as statistical information concerning the Swedish restaurant business had been used in determining the revised taxes and that the tax surcharges imposed on him were considerable. He further stated that, being of foreign origin, he did not fully master the Swedish language. On 8 September 2005 the court refused the applicant legal aid. It noted that, under the terms of the Legal Aid Act (Rättshjälpslagen, 1996:1619), the scope for granting legal aid to a businessman in a taxation case was very limited. According to a leading decision by the Supreme Administrative Court (Regeringsrätten), the application of Article 6 § 3 (c) in a case concerning tax surcharges would depend on the size of the surcharges and the nature of the case; only if the penalties were particularly heavy and the legal issues complicated could legal aid be granted by virtue of the Convention (RÅ 2003 ref. 56). The instant case concerned mainly the question whether the documentation obtained by the Tax Authority constituted a sufficient ground for increasing the first applicant’s liability to income tax. The court found that, although the documentation was relatively extensive, the legal issues, including those related to the subordinate questions concerning the tax surcharges, were not of such a character that the applicant had a right to legal aid under Swedish law or the Convention. On 18 October 2005 the Administrative Court of Appeal (kammarrätten) in Stockholm rejected the applicant’s appeal, subscribing to the reasons given by the County Administrative Court. On 5 April 2006 the Supreme Administrative Court refused leave to appeal. By a judgment of 3 January 2007, the County Administrative Court reduced the company’s unrecorded revenues and salary payments. Accordingly, in a further judgment of 16 March 2007 the court lowered the applicant’s taxable income to SEK 125,008 for each of the assessment years. In consequence of this finding, the tax surcharges were also reduced, to SEK 14,495 and 12,614, respectively, for the two assessment years (in total approximately EUR 3,000). The court also decided that the applicant be compensated for litigation costs under the Act on Compensation for Costs and Expenses in Cases Concerning Taxes, etc. (Lagen om ersättning för kostnader i ärenden och mål om skatt, m.m., 1989:479). The applicant was awarded SEK 825 concerning the court proceedings and SEK 1,000 concerning the proceedings before the Tax Authority (in total about EUR 200). He had claimed SEK 825 and 3,500, respectively. The applicant appealed against the taxation and the tax surcharges to the Administrative Court of Appeal, where the case was still pending at the time of the present decision. | 0 |
dev | 001-4689 | ENG | GBR | ADMISSIBILITY | 1,999 | I.J.L. v. THE UNITED KINGDOM | 3 | Inadmissible | Nicolas Bratza | The applicant is a British national, born in 1916 and currently living in Switzerland. He is represented before the Court by Stephenson Harwood, a firm of solicitors based in London as well as by Mr J.P. Gardner, a solicitor also based in London. On 27 November 1997 the Secretary of State for Trade and Industry published a Report (“the Report”) prepared by Inspectors appointed by the Department of Trade and Industry under sections 432(2) and 442 of the Companies Act 1985 to investigate allegations of an unlawful share support operation at the time of the take-over by Guinness PLC of the Distillers Company PLC. The applicant maintains that the Report refers quite extensively to him and is pejorative, containing criticisms of his honesty both in relation to the events which are the principal subject-matter of the Report and his responses to the Inspectors. The content of the Report is seriously detrimental to his reputation, all the more so in view of the intense media interest generated by it. The applicant refers to the facts that on 11 and 16 October 1997 his lawyers submitted detailed representations to the Secretary of State urging him not to publish the Report as he had lodged an application with the European Commission on Human Rights in connection with the manner in which the Inspectors had obtained evidence from him and how that evidence was subsequently used by the prosecution at his trial. In their representations to the Secretary of State the applicant’s lawyers argued that, at the very least, publication of the Report should be deferred until the Convention institutions had adjudicated on his complaints. They requested the Secretary of State in the event of a decision to publish the Report in opposition to their representations to give them full information on the reasons for doing so. | 0 |
dev | 001-23849 | ENG | AUT | ADMISSIBILITY | 2,004 | LAMPRECHT v. AUSTRIA | 4 | Inadmissible | Ireneu Cabral Barreto | The applicant, Mrs Elisabeth Lamprecht, is an Austrian national who lives in Linz. She was represented before the Court by Mr H. Blum, a lawyer practising in Linz. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant introduced proceedings for the preservation of evidence (Beweissicherungsverfahren) against a building company, P. On 3 February 2000 the Linz District Court (Bezirksgericht) ordered the applicant to pay part of the defendant's costs relating to the preservation of evidence, namely 7,416.96 Austrian schillings (ATS). The defendant appealed against the costs order (Kostenrekurs). This appeal was not transmitted to the applicant. On 21 December 2000 the Linz Regional Court (Landesgericht), sitting in camera, partly granted the defendant's appeal and ordered the applicant to reimburse costs of altogether ATS 8,459.64. No main proceedings were brought, as meanwhile, in April 2000, the parties had concluded an out-of-court settlement. Under the terms of this settlement the P. company paid the applicant ATS 25,000 as compensation for damages and ATS 20,693.98 as reimbursement for cash expenses incurred in the proceedings for the preservation of evidence. Proceedings for the preservation of evidence are regulated in the Code of Civil Procedure (Zivilprozeßordnung). “(1) An application for evidence to be taken or for witnesses and experts to be heard can be lodged, for the purposes of securing the presentation of the evidence, at any time in the proceedings and even before the proceedings have begun if there is cause to fear that the evidence will otherwise be lost or its examination made difficult. (2) Those measures can also be ordered where the conditions of [Article 284] paragraph 1 are not satisfied if the present condition of an item of evidence is to be ascertained and the applicant has a legal interest in having it ascertained.” “(3) The party applying for the measure shall be liable for the costs of the taking of evidence without prejudice to any claim for damages on their part. The other party to the proceedings shall be reimbursed the necessary costs of his or her participation in the taking of evidence without prejudice to the decision in the main proceedings.” | 0 |
dev | 001-22936 | ENG | SWE | ADMISSIBILITY | 2,002 | RENDAHL v. SWEDEN | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Lars Rendahl, is a Swedish national, who was born in 1946 and lives in Hestra. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant owned or partly owned several newspaper companies that went bankrupt in 1991 amidst considerable media attention. On behalf of two of these companies, Lokaltidningen i Finbergen AB and Kronobergaren, in April 1991 the applicant as the managing director applied for state subsidies from the Swedish Press Subsidies Board (Presstödsnämnden), a central Government authority responsible for safeguarding the diversity of Sweden’s daily newspapers by allocating state subsidies to the daily press. State subsidies were granted in the amount of maximum 966.975 Swedish kronor (SEK) and would be payable on the presentation of invoices proving that the investments for which the subsidies were applied were actually made. The applicant submitted an invoice of 3 May 1991 from a computer company, AboData AB (partly owned by applicant), to Lokaltidningen i Finbergen AB in the amount of SEK 1.243.120, and accordingly on 21 May 1991 state subsidies in the amount of SEK 932.340 were paid to the applicant. Kronobergaren went bankrupt on 1 November 1991 and Lokaltidningen i Finbergen AB went bankrupt on 16 December 1991. In the meantime, on 4 December 1991 the Swedish Press Subsidies Board submitted a report to the police, indicating that the invoice of 3 May 1991 was false and that the applicant had therefore fraudulently appropriated the subsidies paid. A police investigation commenced on 6 December 1991. Five witnesses were heard during the period of 20 May and 16 September 1992. On 23 November 1992 the applicant was questioned by the police and formally notified about the suspicions against him. He was re-interrogated on 19 May 1993. On 27 May 1993 the applicant’s counsel requested a meeting with the prosecutor before a decision whether to bring charges against the applicant be taken. During the meeting, which could not take place until 6 October 1993, due to the counsel’s tight schedule, the applicant asked that a named witness on his behalf be heard. This witness was interviewed on 15 November 1993. On 31 May 1994, having decided to bring charges against the applicant, the public prosecutor sent a summons application to the District Court of Värnamo (Värnamo tingsrätt). On 13 June 1994 the trial was scheduled to take place on 25 August 1994, during which the applicant and five witnesses were heard. The applicant admitted that the invoice was false, he maintained however that subsequently he did invest the subsidies in the goods listed on the invoice. Having found that it could not be established that the Swedish Press Subsidies Board had suffered a loss, the District Court acquitted the applicant by judgment pronounced on 8 September 1994. On 26 September 1994 the prosecution lodged an appeal against the judgment to the Court of Appeal in Göta (Göta Hovrätt) and requested at the same time an extension of the time-limit to complete the appeal. A supplementary preliminary investigation was concluded by the prosecution on 24 October 1994, and on 8 November 1994 the prosecution’s appeal was completed entailing a request that six new witnesses be heard. As the applicant objected to one of these witnesses being heard, in the period between 9 November 1994 and 23 February 1995 written pleadings were submitted concerning this procedural question. By decision of 9 June 1995 the Court of Appeal allowed the new evidence to be submitted. On 30 August 1995 the trial was scheduled to take place on 17 and 18 October 1995. By judgment pronounced on 8 November 1995 the Court of Appeal found it established that the invoice was false and that at the time of the payment, i.e. on 21 May 1991, the applicant had put the Swedish Press Subsidies Board at risk of suffering a loss. The applicant was accordingly convicted of aggravated fraud pursuant to the Criminal Code and sentenced to one year’s imprisonment. His request for leave to appeal of 8 November 1995 was received in the Supreme Court (Högsta domstolen) on 11 December 1995, and having obtained an extension of the time-limit his request was completed on 5 March 1996. On 4 June 1996 the Supreme Court requested that the Prosecutor General submit written observations within four weeks. On 11 December 1996 and on 31 January 1997 a reminder in this respect was sent to the Prosecutor General and on 24 February 1997 the observations were submitted. The applicant’s comments thereto were submitted on 21 March 1997. On 26 May 1997 the Supreme Court refused leave to appeal. | 0 |
dev | 001-88524 | ENG | GBR | ADMISSIBILITY | 2,008 | CARR v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | The applicant, Mr Geoffrey Carr, is a British national who was born in 1942 and lives in Preston. 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 14 February 1998. His claim for widows’ benefits was made on 28 February 2001 and was rejected on 1 March 2001 on the ground that he was not entitled to widows’ benefits because he was not a woman. On 6 March 2001 the applicant appealed and reconsideration took place on 8 March 2001 whereby 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 applicant was not in receipt of child benefit at the time of his claim. 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 | 001-57581 | ENG | AUT | CHAMBER | 1,984 | CASE OF SRAMEK v. AUSTRIA | 2 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings | C. Russo | 8. The applicant, who is a United States citizen, lives in Munich in the Federal Republic of Germany. Wishing to build a holiday residence in Hopfgarten, a village in the Austrian Tyrol, she approached, with the assistance of municipal officials, the owners of a plot of land which had until then been used for agricultural purposes. Sale negotiations began in 1971 and apparently led, in 1973, to an initial contract. One year later, Mrs. Sramek paid to the vendors the greater part of the agreed price. However, the definitive contract was not drawn up until 13 January 1977. 9. Under section 3 of the Tyrolean Real Property Transactions Act (Grundverkehrsgesetz) 1970, as amended by, inter alia, an Act of 28 November 1973 which came into force on 1 January 1974 ("the 1970/1973 Act"), the contract could not take effect unless it were approved by the local Real Property Transactions Authority (Grundverkehrsbehörde); in fact, it contained a clause which so provided. The 1970/1973 Act applies to agricultural and forestry land and also to any land over which rights are acquired by, in particular, a natural person who does not possess Austrian nationality (section 1(1) and (2)). 10. The local Real Property Transactions Authority for Hopfgarten at the office of the Kitzbühel District Administration (Bezirkshauptmannschaft), to which the contract had been submitted, approved it on 7 March 1977; the decision (Bescheid) was dated 31 March. 11. On 6 April, the Real Property Transactions Officer (Landesgrundverkehrsreferent, "the Transactions Officer", see paragraph 23 below) at the Government Office of the Tyrol (Amt der Landesregierung) in Innsbruck exercised his right of appeal (Berufung) to the Regional Real Property Transactions Authority (Landesgrundverkehrsbehörde; section 13(3) of the 1970/1973 Act and see paragraphs 22-23 below). In his view, the contract fell foul of section 4(2) of the 1970/1973 Act. Under that sub-section, where the purchaser of real property is a foreigner a contract of the kind in question can be approved only "if the acquisition of rights (Rechtserwerb) is not contrary to political (staatspolitisch), economic, social (sozialpolitisch) or cultural interests; such a conflict (Widerspruch) is deemed to exist, in particular, where, (a) having regard to the extent of existing foreign ownership or to the number of foreign owners, there is a risk of foreign domination (Uberfremdung) in the municipality or locality concerned, (b) ... ." In the submission of the Transactions Officer, there were, in fact, already 110 foreign landowners in Hopfgarten and it could be seen from a series of decisions of the Regional Authority that this municipality was one of those where the danger of foreign domination was imminent. The contract in question was therefore contrary to social and economic interests within the meaning of the above-mentioned Act. The applicant received a copy of the appeal but did not file any observations in reply. 12. The Government Office of the Tyrol was organised in a number of "groups" and each group comprised several "divisions". In the present case, the Transactions Officer was the director of group III; his secretariat was provided by one of the seven divisions in that group, namely division III b. 2. 13. On 3 June 1977, the Regional Real Property Transactions Authority at the Government Office of the Tyrol held a hearing. The Regional Authority sat in camera but the parties, namely the Transactions Officer and Mrs. Sramek, were present. The latter appeared in person, without the assistance of a lawyer. In accordance with section 13(4), no. 1, of the 1970/1973 Act (see paragraph 24 below), the Regional Authority was composed as follows: the elected mayor of a municipality in the Tyrol, who was a farmer experienced in real estate matters, as chairman; a judge of the Innsbruck Court of Appeal; a civil servant from division III b. 3 - one of the seven divisions in group III - of the Government Office, as rapporteur; the head of group III d; the director of the Regional Forestry Service, being the head of group III f; a farmer; and a lawyer. The secretariat was provided by division III b. 3, to which the rapporteur belonged. 14. According to the minutes of the hearing, the rapporteur presented the facts and read out the expert opinions and observations received during the course of the investigation; the latter concerned, inter alia, the percentage of the parcels of land in Hopfgarten which was in foreign hands. The Transactions Officer then requested the Authority to uphold his appeal on the ground that as there was already a risk of foreign domination in Hopfgarten, the acquisition of the land in question would be contrary to social and political interests. The applicant stated that she had signed the initial contract (Erstvertrag), which could not then be found, on 13 March 1973. As early as 23 January 1971, she had reached an agreement to purchase (Vertragsabsprachen) and had received assurances that all would go well. Since that time, she had come to Austria several times each year to settle the matter. Her husband was living with the family in Munich, where he worked, but would be retiring shortly. She declared that she herself was prepared to apply for Austrian nationality. Their permit to reside in the Federal Republic was temporary and she did not wish to return to the United States. She added that she had already made a first payment of 111,591 schillings. In conclusion, she requested that the contract be approved. 15. On the same day, that is 3 June 1977, the Regional Authority upheld the appeal: referring to the above-mentioned section 4(2)(a) of the 1970/1973 Act, it refused to approve the transfer of title. Its decision (Bescheid) was dated 16 June. The Authority noted firstly that according to a statement from the municipality of Hopfgarten, which had not been challenged at the hearing, there were 110 foreign landowners in Hopfgarten, owning 5.6 hectares of land. There were 4,800 inhabitants and 1,100 families in the locality, though not all of them were landowners. The proportion of non-Austrian owners already exceeded 10 per cent and the extent of their holdings revealed a tendency towards foreign domination. The Authority then recalled that for some years past it had been refusing to approve the transfer of land in Hopfgarten to foreigners since it had concluded that there was a risk of foreign domination in the area. It had to take account, inter alia, of the effects of its decision on third parties. According to the Authority, experience showed that the approval of a contract between a landowner and a foreigner led to an influx of other foreigners who also wished to buy land in the locality. This caused prices to rise substantially, making it very difficult, if not impossible, for the indigenous population to find housing for themselves. For these reasons and in view of the scarcity of building plots in the Tyrol, very strict legal (gesetzlich) control had to be exercised: sales and purchases could normally be approved only if they contributed to the establishment or maintenance of an effective (leistungsfähig) agricultural population or if they served to satisfy domestic land needs (inländischer Bodenbedarf) for any kind of public or social purposes. However, Mrs. Sramek was intending to use the land in question - at least for some time - for the construction of a holiday residence. Such an objective could easily be satisfied by the local hotel trade which, furthermore, was losing potential customers as a result of the construction of villas by foreigners. The acquisition contemplated was therefore prejudicial to economic and social interests and thus fell foul of, in particular, section 4(2)(a) of the 1970/1973 Act. Lastly, the Regional Authority rejected the applicant’s argument that she had already concluded a contract in 1973, that is at a time when American citizens were treated on an equal footing with Austrians by virtue of a bilateral treaty dating from 1928. The Authority emphasised firstly that it had to base itself on the factual and legal situation obtaining at the time when the decision had to be taken. In its view, the 1928 treaty had not established any equality between citizens of the two States in the area concerned. In the case in question, the transfer of ownership contemplated fell under Article 1 para. 2, as interpreted by the Ministry of Foreign Affairs in a 1973 memorandum which stated that the general regulations with regard to foreigners were applicable. Even if this interpretation had not been known at the time when the initial contract had allegedly been concluded (13 March 1973, see paragraph 14 above) - though this was not the case, since the above-mentioned memorandum dated from early 1973 -, Mrs. Sramek could not claim that she had acted in good faith: she was obliged under section 15 of the 1970/1973 Act to seek approval of the contract within two months and she alone bore the responsibility for not having done so. 16. On 22 August 1977, the applicant appealed to the Constitutional Court (Verfassungsgerichtshof) against the decision of the Regional Authority. She claimed that her right to inviolability of property and her right to a decision by the legally competent court (gesetzlicher Richter) had been infringed and relied on Article 5 of the Basic Law (Staatsgrundgesetz), Article 83 para. 2 of the Federal Constitution (Bundes-Verfassungsgesetz) and Article 6 (art. 6) of the Convention. As concerns the first complaint, Mrs. Sramek alleged that the Regional Authority had applied section 4(2)(a) of the 1970/1973 Act in a misconceived (denkunmöglich) manner by adopting an illogical approach; amongst other things, it had concluded that there was a danger of foreign domination in Hopfgarten without being in possession of detailed documentation, without defining the risk in question and without enquiring into the actual position in Hopfgarten regarding real property ownership. She further contended that the Regional Authority was not an "independent tribunal" within the meaning of Article 6 (art. 6) of the Convention. On these grounds, she requested the Constitutional Court to annul the decision under appeal or, in the alternative, to refer the case to the Administrative Court (Verwaltungsgerichtshof). Mrs. Sramek supplemented her grounds of appeal on 9 March 1978. She asserted that her lawyer had not been able to consult the minutes of the Regional Authority’s deliberations. She had, in fact, learnt that the Authority had not given its ruling on 3 June 1977, immediately after the closure of the hearing. She inferred from this that the decision complained of had not been taken by the legally competent court. She requested the Constitutional Court to provide her lawyer with an opportunity of reading the above-mentioned minutes. 17. The Constitutional Court dismissed the appeal on 3 March 1979 (Erkenntnisse und Beschlüsse des Verfassungsgerichtshofes, 1979, vol. 44, no. 8501). It took the view that the Regional Authority was indeed a "tribunal" within the meaning of Article 6 (art. 6) of the Convention. It gave decisions which the executive could neither annul nor vary. As regards its members - who included a judge -, they had a degree of independence equal to that of judges. They were not bound by any instructions in the exercise of their functions and they could not be removed during their three-year term of office, except for reasons which would have precluded their appointment or if they were permanently prevented from carrying out their duties. The Constitutional Court accordingly held that Article 6 (art. 6) had not been violated. The applicant’s other ground of appeal was also rejected. Recalling that it had already held in another case, in 1974, that it was not misconceived to conclude that there was a danger of foreign domination in Hopfgarten, the Constitutional Court stated that it saw no reason to change its opinion in the instant case. As regards the facts noted by the Regional Authority, they had not been the subject of any dispute during the administrative proceedings. The Constitutional Court sat in camera and gave judgment without holding a hearing. 18. Even before the above-mentioned judgment had been delivered, the plot in question was sold to an Austrian who, according to the Government, turned it back into grazing-land. The Regional Authority had taken the view that it could examine the new contract, provided that its decision was held in abeyance pending the outcome of the Constitutional Court’s proceedings. 19. The Government stated that during the last ten years or so the Regional Authority had not approved any acquisition of real property in Hopfgarten by a foreigner. They supplied a list of thirteen refusals in the period between July 1973 and February 1983; according to the applicant, the list was insufficiently detailed to be conclusive. 20. Under Article 15 of the Federal Constitution, as interpreted by the Constitutional Court, the regulation of real property transactions is a matter coming within the jurisdiction of the Länder. Most of the Länder have enacted legislation whereby all contracts relating to agricultural or forestry land and also, in some cases, real property transactions with foreigners have to be approved by special authorities. 21. In the Tyrol (see paragraph 9 above), section 15(1) of the 1970/1973 Act obliges the purchaser to seek such approval within two months of the conclusion of the contract. No entry can be made in the land register until the transaction has been approved by the competent authority (section 1(4)). If approval is withheld, the acquisition is null and void (section 16(1)). 22. When the contract relates to agricultural or forestry land and irrespective of the purchaser’s nationality, the first-instance authority is the Höfekommission ("Farm Commission") (section 13(1)(a)). The Farm Commission is established at the seat of the District Administration and has three members: the head of the District Administration, or a legally qualified (rechtskundig) official of that Administration appointed by him, as chairman; a person designated by the chamber of agriculture of the district; and another person, designated by the municipality in question, who is engaged in agriculture or forestry (section 9 of the Tyrolean Farms Act of 12 June 1900; Gesetz betreffend die besonderen Rechtsverhältnisse geschlossener Höfe). The decisions of the Farm Commission are taken by majority vote (section 13(2) of the 1970/1973 Act); they are subject to appeal to the Regional Authority (see paragraph 24 below) by, amongst others, the parties to the contract or the Transactions Officer (section 13(3)). 23. The Transactions Officer, who is appointed for three years by the Government of the Tyrol, must be a person who is experienced in real property transaction matters (section 14). His secretariat is provided by a division of the Office of the said Government. 24. If the case is referred to it, the Regional Real Property Transactions Authority established at the Office of the Land Government takes a decision as the second and final instance (section 13(4)). Its membership varies according to the subject-matter of the contract to be examined. In the case of agricultural or forestry land - whether the buyer be Austrian or foreign - its voting members are (section 13(4), no. 1): "(a) a person experienced in real property transaction matters, who shall act as chairman; (b) a member of the judiciary (Richterstand); (c) a legally qualified civil servant from the Office of the Regional Government, with training in real property transaction matters, who shall act as rapporteur; (d) a senior civil servant from the Agricultural Services Department (technischer Agrardienst) of the Office of the Regional Government; (e) a senior civil servant from the Forestry Services Department (forsttechnischer Dienst); (f) an agricultural expert; (g) a lawyer (Rechtsanwalt or Notar)." 25. The above-cited provision, which was introduced by the Act of 28 November 1973 (see paragraph 9 above), replaced a text which the Constitutional Court had held to be incompatible with Article 6 (art. 6) of the Convention, as interpreted by the European Court in its Ringeisen judgment of 16 July 1971 (Series A no. 13). The Constitutional Court had ruled that the Regional Authority, as it was constituted under the original Act of 1970, could not be considered an "independent and impartial" tribunal because its members included, as chairman, one of the members of the Government of the Tyrol (section 13(1), no. 1(a), former version). Furthermore, so the Constitutional Court held, the Act did not fix the duration of the members’ term of office, conferred on the said Government the power of appointing the members (save for a judge, who was appointed by the Federal Minister of Justice) and did not lay down the circumstances in which members might be removed from office (judgment of 29 June 1973, Erkenntnisse und Beschlüsse des Verfassungsgerichtshofes, 1973, vol. 38, no. 7099). 26. Following this judgment, the Tyrolean legislature amended, by the same Act of 28 November 1973, the provisions in section 13 concerning, inter alia, exercise of the office of member of the Regional Authority. Sub-sections 5 to 13 of that section read as follows: "(5) The member of the Regional Real Property Transactions Authority appointed from the judiciary (sub-section 4, no. 1 (b)), shall be appointed by the Federal Minister of Justice and the remaining members, by the Regional Government. For each member a substitute member shall be similarly appointed. (6) Only Austrian citizens who have reached the age of 25 years and are in full possession of their legal rights shall be eligible for appointment as members or substitute members. Persons who by reason of a criminal conviction are disqualified from jury service or from acting as lay assessors shall be ineligible. (7) Members and substitute members shall hold office for three years. Members or substitute members who are appointed within the general three-year term of office shall cease to hold office at the end of that term. Re-appointment is possible. Members and substitute members shall continue to perform their duties after expiry of their term of office until they have been replaced. (8) The quorum of the Regional Real Property Transactions Authority shall be constituted if the chairman, the member appointed from the judiciary, the rapporteur and at least two other members are present. Decisions shall be taken by majority vote. If the votes are equally divided, the chairman shall have a casting vote. Abstention shall count as a negative vote. (9) In the performance of their duties the members of the Regional Real Property Transactions Authority shall not be subject to any instructions; the executive may neither annul nor vary their decisions. (10) The details of the Real Property Transactions Authorities’ procedure (such as the convening of sittings, summoning of substitute members, conduct of voting, keeping of minutes and signing of decisions) shall be laid down by the Regional Government in rules of procedure (Geschäftsordnung) for the said Authorities. (11) Unless they are civil servants, members of the Real Property Transactions Authorities shall receive for their work remuneration and a travel allowance, the amount of which shall be laid down in regulations made by the Regional Government. (12) A member or substitute member shall be removed from office, before the end of his term of office, if: (a) circumstances intervene which would have made him ineligible for appointment; (b) the regular performance of his duties becomes per80 manently impossible. (13) If an official of a "territorial" authority (Gebietskörperschaft) is suspended from duty under the regulations governing his employment, he shall cease to exercise his functions as a member or substitute member of a Real Property Transactions Authority for the duration of the suspension." Sub-section (9), cited above, corresponds to Article 20 para. 2 of the Constitution, which reads: "If a Federal or a Land Act makes provision for the last-instance decision to be given by a collegiate body at least one of whose members is a judge and whose decisions cannot be annulled or varied by the executive, the other members of that body shall also not be subject to any instructions." Article 20 para. 3 of the Federal Constitution obliges the members of the Regional Authority not to disclose facts which have come to their knowledge in the exercise of their functions, if the interests of a "territorial" authority or of the parties so require (Amtsverschwiegenheit). 27. Procedure before the Real Property Transactions Authorities is governed by the General Administrative Procedure Act 1950 (Allgemeines Verwaltungsverfahrensgesetz). The parties are entitled to consult the case-file (section 17) and must be given an opportunity of presenting their arguments (section 37). The competent authority may decide to hold a hearing (section 39(2)), which will not take place in public; the parties have the right to be heard (rechtliches Gehör) and, inter alia, to adduce their arguments and evidence and comment on facts presented and submissions made by other persons appearing, witnesses or experts (section 43(3)). In certain circumstances which may give reason to doubt his impartiality, the civil servant concerned must arrange to be replaced (section 7). 28. By an order (Verordnung) of 13 September 1966, the Government of the Tyrol issued rules of procedure for the Real Property Transactions Authorities. Under Article 3 para. 1, the Authorities shall deliberate and vote in the absence of the parties, if appropriate after oral hearings. The deliberations shall be recorded in minutes to which the right to consult the case-file (Akteneinsicht), guaranteed by Article 17 of the General Administrative Procedure Act, does not extend (Article 3 para. 3). The Authorities’ resolutions (Beschlüsse) must be recorded, but may be altered as long as they remain unpublished (nicht nach aussen in Erscheinung getreten) (Article 3 para. 4). Their decisions (Bescheide), which are to be reached on the basis of those resolutions (Article 4 para. 1), shall be given in writing but may in case of urgency be given orally by the chairman (Article 4 para. 2). Before the Regional Real Property Transactions Authority, the rapporteur shall, after setting out and commenting on the results of the investigation (Ermittlungsverfahren), present conclusions (Antrag); those who wish to propose alternative conclusions (Gegen- oder Abänderungsanträge) shall give reasons for them (Article 9 para. 2). The chairman shall decide the order in which voting on the conclusions is to take place (Article 9 para. 3). 29. Decisions of a Regional Authority may be challenged before the Constitutional Court but not before the Administrative Court (Verwaltungsgerichtshof; Articles 133 para. 4 and 144 of the Federal Constitution). | 1 |
dev | 001-75143 | ENG | TUR | ADMISSIBILITY | 2,006 | DEMIRBAS AND OTHERS v. TURKEY | 4 | Inadmissible | null | The applicants, whose names appear in the appendix, are Turkish nationals. They are represented before the Court by Mr M. Vefa, a lawyer practising in Diyarbakır. The facts of the cases, as submitted by the parties, may be summarised as follows. Until 1994 the applicants lived in Dibek, a village of the district of Lice, in Diyarbakır, where they own property. In April 1994 security forces forcibly evacuated Dibek and destroyed the applicants’ property. The applicants then moved to Diyarbakır, where they currently live. On unspecified dates, the applicants lodged petitions with the State of Emergency Regional Governor’s office, the Governor’s office in Diyarbakır, the District Governor’s office in Lice and with the military authorities, requesting redress for the damages they had suffered and permission to return to their village. It is to be noted that the applicants did not submit any document to the Court attesting their applications to the above-mentioned offices. They claim that these documents can be obtained from the Governor’s office in Diyarbakır and the State of Emergency Regional Governor’s office. On 20 March 2000 one of the applicants, Hasan Güngörmez, lodged a petition with the Governor’s office in Diyarbakır, requesting to be allocated a house by this office. He received no response to his petition. On 16 July 2001 Hasan Güngörmez applied to the Lice Magistrates’ Court (sulh hukuk mahkemesi) for an assessment of the damage he had suffered as a result of the burning down of his home and possessions. On the same day the Lice Magistrates’ Court dismissed the applicant’s request, holding that he would not benefit from this assessment since the alleged incident had occurred a long time ago. On 9 September 2001 the District Gendarmes Headquarters in Lice sent a letter to the village mayors in Lice. According to that letter, access to some villages of Lice would be possible only during summer for the inhabitants to work in their farms, and only during daytime. The villagers would not be allowed to spend the nights in their village. Moreover, the villagers would be required to apply to the gendarme stations and request permission. The applicants’ village, Dibek, was not listed among these villages. On 11 September 2001 the 2nd Internal Security Brigade Commander in Lice sent a letter to the District Governor’s office informing him that the military operations against terrorism were to continue in the district. The commander requested the District Governor’s office to warn the inhabitants of these operations and notify them that the security forces would not be responsible for any casualties. On 18 February 2002 the applicants lodged a petition with the Ministry of the Interior requesting redress for the damages they had suffered. On the same day the applicants lodged a petition with the Public Prosecutor’s office in Diyarbakır for submission to the Public Prosecutor’s office in Lice, requesting that an investigation be initiated against the perpetrators of the destruction of their houses and those who prevented their access to their properties in Dibek. They relied on Articles 369, 515 and 516 of the Criminal Code. They further requested compensation for the pecuniary and non-pecuniary damages they had suffered. On an unspecified date the Public Prosecutor’s office in Lice issued a decision of non-jurisdiction and sent the case file to the Military Prosecutor’s office in the 7th Diyarbakır Corps Command. The applicants contend that the decision of non-jurisdiction was not served on them. They further assert that they have not been informed about the outcome of the investigation. On 4 April 2002 the Ministry of the Interior rejected the applicants’ request, holding that the administration could not be considered to be responsible, as there had not been an operation in or around the village of Dibek in spring 1994 by the security forces. The Ministry further noted that there had been an investigation in the region and that it had not been established that any house had burned down. In May 2002 the applicants lodged their applications with the European Court of Human Rights alleging violations of Articles 6, 8, 13 of the Convention and Article 1 of Protocol No. 1 to the Convention. On 23 May 2002 the applicants brought an action before the Diyarbakır Administrative Court requesting legal aid in accordance with Article 465 of the Code of Civil Procedure. On 24 May 2002 the applicants brought a further action before the Diyarbakır Administrative Court requesting compensation for the damages they had suffered due to the destruction of their houses and their inability to return to their village and to have access to their property. On 17 June 2002 the Diyarbakır Administrative Court refused to consider the applicants’ requests, holding that the applicants should have brought separate actions as the alleged damage had not been a collective one. On an unspecified date the applicants appealed against the judgment of the Diyarbakır Administrative Court. On 28 November 2002 the Supreme Administrative Court (Danıştay) dismissed the applicants’ appeal noting that the Code of Administrative Procedure did not provide a right to appeal against an administrative court’s refusal to consider a petition. On an unspecified date the applicants filed separate cases with the Diyarbakır Administrative Court. The proceedings are still pending before the latter. Until 1994 the applicants lived in Dolunay, a village of the district of Lice, in Diyarbakır, where they own property. In April 1994 security forces forcibly evacuated Dolunay and destroyed the applicants’ property. The applicants then moved to Diyarbakır, where they currently live. On unspecified dates, the applicants lodged petitions with the State of Emergency Regional Governor’s office, the Governor’s office in Diyarbakır, the District Governor’s office in Lice and military authorities requesting redress for the damages they had suffered and permission to return to their village. It is to be noted that the applicants did not submit any document to the Court attesting their applications to the above-mentioned offices. They claim that these documents can be obtained from the Governor’s office in Diyarbakır and the State of Emergency Regional Governor’s office. On 9 September 2001 the District Gendarmes Headquarters in Lice sent a letter to the village mayors in Lice. According to that letter, access to some villages of Lice would be possible only during summer for the inhabitants to work in their farms, and only during daytime. The villagers would not be allowed to spend the nights in their village. Moreover, the villagers would be required to apply to the gendarme stations and to request permission. The applicants’ village, Dolunay, was not listed among these villages. On 11 September 2001 the 2nd Internal Security Brigade Commander in Lice sent a letter to the District Governor’s office in Lice informing him that the military operations against terrorism were to continue in the district. The commander requested the District Governor’s office to warn the inhabitants of these operations and notify them that the security forces would not be responsible for any casualties. On 21 December 2001 the applicants lodged a petition with the Ministry of the Interior requesting redress for the damages they had suffered. On the same day the applicants lodged a petition with the Public Prosecutor’s office in Lice, requesting that an investigation be carried out against the perpetrators of the destruction of their houses and those who prevented them from having access to their properties in Dibek. They invoked Articles 369, 515 and 516 of the Criminal Code. On an unspecified date the Public Prosecutor’s office in Lice issued a decision of non-jurisdiction and sent the case file to the Military Prosecutor’s office in the 7th Diyarbakır Corps Command. The applicants contend that the decision of non-jurisdiction was not served on them. They further assert that they have not been informed about the outcome of the investigation. On an unspecified date the applicants brought an action before the Diyarbakır Administrative Court requesting compensation for the damages they had suffered due to the destruction of their houses, their inability to return to their village and to have access to their property. On 19 April 2002 the Diyarbakır Administrative Court refused to consider the applicants’ requests, holding that the applicants should have brought separate actions as the alleged damage had not been a collective one. On an unspecified date one of the applicants, Ağa Şaşmaz lodged a complaint with the Public Prosecutor’s office in Lice against the Kayacık Gendarmes Station Commander, Hüseyin Güven. The applicant alleged that Hüseyin Güven had threatened him concerning his petition with the Ministry of the Interior. He further contended that he had been compelled to sign statements in the Kayacık Gendarmes Station. On 14 May 2002 the Lice Public Prosecutor issued a decision of non-prosecution concerning the petition of Ağa Şaşmaz, noting that he had not substantiated his allegations. On 2 August 2002 the Ministry of the Interior rejected the applicants’ request noting that the statutory time limit under Article 13 of the Code of Administrative Procedure had expired. The investigation carried out by the authorities indicated that the applicants had left their villages of their own will. The security forces had not forced the applicants to leave their village. Currently there was no obstacle preventing villagers from returning to their homes and possessions 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 | 001-93867 | ENG | UKR | CHAMBER | 2,009 | CASE OF YAKUBOVYCH v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial | Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Stanislav Shevchuk;Zdravka Kalaydjieva | 4. The applicant was born in 1954 and lives in the Rivne Region. 5. On 13 March 1996 the applicant instituted proceedings in the Sarny Court against a private company, Vysotskyy, for non-fulfilment of its contractual obligations, under which it should have provided the applicant with agricultural products. 6. On 1 July 1997 the Sarny Court left the applicant’s complaint without consideration, holding that it fell within the jurisdiction of the commercial courts. 7. On 28 July 1997 the Rivne Regional Court quashed that ruling and remitted the case for a fresh consideration. 8. On 22 December 1997 the Sarny Court rejected the applicant’s claims as unsubstantiated. 9. On 26 January 1998 the Rivne Court quashed that decision and remitted the case for a fresh consideration. 10. On 19 May 1998 the Sarny Court found in part for the applicant. 11. On 13 July 1998 the Rivne Court upheld that decision. 12. On 23 December 1998 the Presidium of the Rivne Court, following an objection (протест) lodged by its President, quashed the decisions of the lower courts and remitted the case to the Sarny Court for a fresh consideration. 13. On an unspecified date the Vysotskyy company lodged a counterclaim with that court seeking the annulment of the contract. After December 1998 the case was reconsidered by the courts at three levels of jurisdiction on four occasions because the courts of first instance and appeal had committed factual and legal errors in their decisions. 14. On 3 March 2003 the Dubrovytsya Town Court allowed the applicant’s claim in part and ordered the successor of the Vysotskyy company, Zlagoda, to transfer thirty-three tons of potatoes, worth 15,196 Ukrainian hryvnas (UAH), and eight tons of wheat, worth UAH 2,598, to the applicant. It also ordered the applicant to return 3,855 kg of meat, worth UAH 11,133, to Zlagoda. 15. On 27 June 2003 the Rivne Regional Court of Appeal upheld that judgment. On 4 February 2005 the Supreme Court rejected the applicant’s appeal in cassation. 16. In the course of the proceedings twenty-seven hearings were adjourned, two of which were adjourned due to the applicant’s failure to attend and the remaining twenty-five due to the need to call witnesses or due to their or their respondent’s failure to attend. 17. On an unspecified date the Bailiffs started enforcement proceedings in respect of the judgment of 3 March 2003. 18. On 11 January 2007 the Rivne Court modified the procedure of enforcement, ordering the Zlagoda company to pay the applicant UAH 17,794 for the products due to him under the judgment of 3 March 2003. 19. On 7 February 2007 the Dubrovytsya Court, following a request by the Zlagoda company to modify the procedure of enforcement of the judgment of 3 March 2003, ordered cross-cancellation of the debts under that judgment in the amount of UAH 11,133 and ruled that Zlagoda was to pay the applicant UAH 6,661. The ruling of 7 February 2007 was not appealed against and became final. 20. On 21 February 2007 the judgment of 3 March 2003 was enforced in full. 21. In March 2007 the applicant instituted proceedings against the Zlagoda company, seeking compensation for the difference between the award paid and the in market prices of the products due to him under the judgment of 3 March 2003. 22. On 5 June 2007 the Dubrovytsya Court rejected the applicant’s claims as unsubstantiated. 23. On 18 July 2007 the Rivne Court quashed that decision and discontinued the proceedings in the case, holding that the issue had been settled by the final judgment of 3 March 2003. 24. On 27 August 2008 the Supreme Court quashed the decision of 18 July 2007 and remitted the case for a fresh consideration to the Rivne Court, before which it is still pending. | 1 |
dev | 001-120970 | ENG | RUS | CHAMBER | 2,013 | CASE OF TURLUYEVA v. RUSSIA | 3 | Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 2 - Right to life (Article 2-1 - Life);Violation of Article 2 - Right to life (Article 2 - Positive obligations) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Liberty of person;Security of person);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life);Non-pecuniary damage - award | Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković | 6. The applicant was born in 1970 and lives in Goyty, Urus-Martan District, Chechnya. 7. The applicant is a widow, whose husband died in 1994. She lived with her son, Sayd-Salekh Ibragimov, born in 1990, who at the relevant time was in his second year of studies at the Grozny Oil Institute. The applicant also has a daughter. The family lived in the village of Goyty, Urus-Martan District, Chechnya. Their household at 117 Gonchayeva (previously Sovetskaya) Street consisted of three houses sharing a common courtyard. One house belonged to the applicant and her children, and the other two to her husband’s brothers. According to the applicant, one of them had left Chechnya with his family and in 2009 that house was uninhabited. 8. On 21 October 2009 the applicant was in Grozny. At about midday on that day she received a phone call from a relative, who told her that a special operation was taking place at their household and that soldiers were going to burn the house down. The applicant called her son, who was in Grozny, and told him not to come home but to stay at his uncle’s place. 9. In the meantime, the applicant and her brother-in-law Adnan I. went to Goyty by car. As soon as they arrived the car was surrounded by armed men in military uniforms, who they understood to be servicemen of the Ministry of the Interior. The servicemen showed them a body and told them that this man had been hiding in their household since the previous day, in the attic of Adnan I.’s house. The body was that of a young man, aged 1719, with long hair. His shirt was pulled up to the neck and his hands were raised behind the head; there was one wound in the heart area. Adnan I. then went to see his paralysed mother, who had been taken to the neighbours. 10. Police officers then took the applicant and her brother-in-law to the Urus-Martan district department of the interior (“the ROVD”) and questioned them. Both denied all knowledge of fighters’ presence in the attic of a house situated in their household. 11. The applicant and her brother-in-law were released at about 9 p.m. that day. They returned to Goyty and found that their houses had been burned down. Firefighters told them that the houses had been set on fire deliberately. Then the applicant’s brother-in-law returned to Grozny. 12. Adnan I.’s daughter M. later told her father that Sayd-Salekh Ibragimov had come to their home in Grozny at about 3 p.m. that day. Soon afterwards he had called a taxi and left, heading towards the city centre. M. told her father that a group of armed men had arrived at their house almost as soon as the applicant’s son had left and demanded that she tell them where he had gone or take them there. As M. did not know where he had gone, they left. 13. At about 10 p.m. on the same day Adnan I. received a call from the head of the Urus-Martan ROVD, who requested that he return to that office. When he arrived there three soldiers took him to Grozny in their car. He was taken to the office of Mr Sherip Delimkhanov, head of the external guards regiment of the Ministry of the Interior of Chechnya (полк милиции Управления Вневедомственной охраны МВД Чечни), also known as the “oil regiment”, as one of their main tasks was to secure oil pipes and installations. 14. Adnan I. was taken into a room where there were about a dozen members of the police force who had participated in the operation in Goyty earlier that day. They told Adnan I. that two police officers had been wounded and one had been killed. Adnan I. denied that any members of illegal groups had ever lived in their household, and stressed that the house in question was uninhabited. He was given to understand that the “blood feud” for the police officer who had been killed would fall on him and his family. 15. After about twenty minutes another soldier brought Sayd-Salekh Ibragimov into the room. Adnan I. saw signs of beatings on his nephew’s face: his right cheek was discoloured, there was blood in the right corner of his mouth and nose, and he had difficulty standing up without assistance. He also remarked that his nephew was shaking, looked frightened and spoke fast, without looking at anyone. The policemen told them that Sayd-Salekh Ibragimov could save his life by cooperating; otherwise they would kill him in retribution for the death of their colleague. Adnan I. was allowed to talk to his nephew. The latter admitted that he had maintained contacts with members of illegal armed groups through the Internet and his mobile phone and promised that he would cooperate with the police. Adnan I. pleaded with him to do anything to save his life. 16. Soon after midnight Adnan I. and his son Magomed, who had also been brought to the regiment’s headquarters, were released. The family had no news of Sayd-Salekh Ibragimov after that date. 17. In support of her submissions the applicant presented written statements drawn up by her and by her brother-in-law, Adnan I., in December 2009 and July 2011. 18. The special operation in Goyty on 21 October 2009 was officially reported by the Ministry of the Interior of Chechnya as follows: “21 October 2009 Policeman killed saving elderly woman Two illegal fighters were killed in Goyty in the Urus-Martan district as a result of a special operation. ‘“The operation aimed at locating and exterminating members of illegal armed groups has just been completed. It took place in Sovetskaya Street, where members of illegal armed groups had been spotted in one of the houses,’ stated the Chechnya Minister of the Interior Mr Ruslan Alkhanov. One of the fighters was identified as Abdul Dzhumayev from Shatoy district. The Minister also said that a member of the police force had been killed while saving an elderly woman from a house seized by terrorists there. ‘Unfortunately, one of our comrades died. He was a member of the external guards’ regiment of the Ministry of the Interior of Chechnya. Two other policemen were wounded,’ said Mr Alkhanov. He stressed that the officers had received injuries while trying to save the life of an 80-year-old woman. They evacuated her through the window and were shot at by the bandits. One police officer lost his life. The operation was carried out by the Sever (Northern) regiment of the internal troops of the Ministry of the Interior, the Special Police Force (“the OMON”) and the external guards regiment of the Ministry of the Interior of Chechnya under the command of Lieutenant-Colonel of the Ministry of the Interior Sherip Delimkhanov.” 19. The Government, in a memorandum of 26 January 2011, acknowledged the basic facts as submitted by the applicant. They confirmed that a special operation had been carried out in Goyty, in Sovetskaya Street, on 21 October 2009, during which one soldier of the external guards regiment had been killed and two others wounded. Two members of illegal armed groups had been killed and a third had escaped. As a result of this conflict, the houses at 117 Sovetskaya Street had burned down. In connection with this incident, at about midnight on 21 October 2009 the servicemen of the external guards regiment had taken Sayd-Salekh Ibragimov to the regiment’s headquarters in Grozny. He had an oral exchange about these events in room 13 of the building and was released at about 12.30 a.m. on 22 October 2009. 20. In the days immediately following 21 October 2009 the applicant expected to be informed about the whereabouts of her son, and did not apply to any authorities. On 1 November 2009 she and her brother-in-law Adnan I. were called to the office of the Achkhoy-Martan District Prosecutor. The applicant submitted that the investigator had asked them about the events of 21 October 2009. However, the investigator had refused to note Adnan I.’s statements about the meeting at Mr Delimkhanov’s office. According to the applicant, the investigator told them that if they wanted to pursue complaints against the “oil regiment”, they would be forced to change their statements. The applicant and Adnan I. did not insist on noting their statements. 21. The applicant submitted that she continued to seek information about her son from various officials. 22. On 2 December 2009 she submitted a complaint to the Investigating Committee at the Prosecutor’s Office in the Achkhoy-Martan district (hereinafter “the district investigating committee”). She described the events of 21 October 2009 and asked to be informed about the whereabouts of her son. She also asked for him to be allowed to meet with a lawyer and to be given medical assistance if needed. 23. Upon this written application, the district investigating committee initiated a check, under Articles 144-45 of the Criminal Procedural Code. By 8 December 2009 the investigator in charge of the case had collected personal information about Sayd-Salekh Ibragimov from the local village administration, and requested all the district and regional police and investigating departments in Chechnya to check whether they had any information about the young man. The letters mentioned that on 21 October 2009 he had been delivered by unidentified police officers to the headquarters of the external guards’ regiment of the Ministry of the Interior of Chechnya and that there had been no news of him after that. 24. On 9 December 2009 an investigator took a statement from Adnan I. The latter explained that he had come to Goyty on 21 October 2009 at the applicant’s request; that he had seen a large group of Ministry of the Interior soldiers and the body of a young man with long hair; that his paralysed mother had been taken to the neighbours; that he and the applicant had been taken to the Urus-Martan ROVD for questioning; that they had been released on the same day and had seen their houses in Goyty burned down; that he had been called late at night to return to the Urus-Martan ROVD and that from there he had been brought back to Grozny, to the “oil regiment” headquarters in Mayakovskaya Street. The witness then went on to describe in detail the interior of the building and the office where he had been questioned, and where he had last seen Sayd-Salekh Ibragimov. He recognised Mr Delimkhanov among the soldiers. He also stated that his nephew had been questioned by a soldier called Valid, who had earlier told him that he was the commander of the sixth platoon of the regiment and was a native of Goyty. Valid showed a mobile phone to Sayd-Salekh and showed him something on the phone, asking whether he knew these people, to which Sayd-Salekh gave a positive answer. Valid told Sayd-Salekh that they had been following him for about a month. He also asked him where he had met these people, to which the Adnan I.’s nephew responded “In a chat room”. Adnan I. stressed that his nephew had looked scared and had signs of beatings on his face. The nephew also stated that the police officers had told him that they would pursue him for the death of their colleague and that he felt threatened and had asked for protection. Adnan I. had not seen his nephew after that. 25. On 10 December 2009 the investigator took a statement from the applicant. She gave similar statements about the events of 21 October 2009; she also stated that the house where she lived had burnt down and she and her family (herself, her daughter and her son) had lost their property, including gold jewellery, and documents. The applicant submitted that she had had no news of her son since 21 October 2009, and gave the police two GSM phone numbers used by her son. 26. On 10 December 2009 the same investigator wrote down explanations submitted by Ms Aminat O., Sayd-Salekh’s girlfriend, who lived with him at his house. She was an eyewitness to the events of 21 October 2009. She stated that at about 2 p.m. a group of armed servicemen had arrived at their house and searched part of the household. There was an exchange of fire in the courtyard and she had asked police officers who were there to take “granny” out of the house, which they did, bringing her out through the window on a mattress. She thought that the house had been set on fire by the police officers. She had not seen SaydSalekh Ibragomov after 21 October 2009 and had no news of his whereabouts. 27. On 11 December 2009 the investigator of the Achkhoy-Martan district investigating committee asked the ROVD to take action to find out Sayd-Salekh’s whereabouts, in particular to obtain information from the GSM operator about his movements and calls received since 1 September 2009 and to find and question the driver of the bus which took the students of the Grozny Oil Institute to and from classes. 28. Between 11 and 12 December 2009 the investigator sought information about Sayd-Salekh Ibragimov from the management of the Grozny Oil Institute, from the Public Health department of Chechnya, from the Chechnya Prison Department, and from a number of other lawenforcement bodies. In particular, on 12 December 2009 the investigator requested the commander of the external guards regiment to identify and send for questioning the servicemen who had been on duty on the night of 21 to 22 October 2009 and to send a copy of the regiment’s registration log to the district investigating committee. 29. On 15 December 2009 the Grozny Oil Institute informed the investigator that Sayd-Salekh Ibragimov had not attended classes since 19 October 2009. One of his classmates and a professor confirmed that they had not seen him at the Institute since 19 October 2009; a copy of the class record was acquired. 30. On 15 December 2009 the investigator, together with Adnan I. and the applicant’s representative from NGO Committee Against Torture, inspected the headquarters of the “oil regiment” in Grozny. Adnan I. showed the office where he had last seen his nephew, at about midnight on 21 October 2009, and specified that about a dozen police officers had been there at the time, including Mr Sherip Delimkhanov. 31. On 17 December 2009 the district investigating committee ruled that criminal proceedings would not be opened. It concluded that there was no reason to suspect that murder had been committed, and that therefore there was no evidence of a crime. On the same day the applicant’s representative was forwarded a copy of the decision and informed of the appeal procedure. 32. It appears that the applicant complained about the above decision. As a result, the documents collected during the investigation were sent to the Leninsky district investigating committee in Grozny, the location of the headquarters of the “oil regiment”. On 28 December 2009 that office opened criminal investigation file 66102 in respect of a suspected murder (Article 105 of the Criminal Code). The document considered it established that on 21 October 2009 Sayd-Salekh Ibragimov had been taken to the headquarters of the regiment by unidentified servicemen of the Ministry of the Interior. There he was questioned orally in room 13 about the incident which had occurred earlier that day in Goyty. Sayd-Salekh Ibragimov was released and left the premises of the regiment at about 12.30 a.m. on 22 October 2009. His whereabouts remained unknown. On the same day the applicant was informed about this development. 33. On 15 January 2010 the investigator responsible for the case drew up a detailed plan of the necessary actions which should be taken. 34. On 2 February 2010 the applicant was granted the status of victim in the proceedings. 35. On 2 and 10 February 2010 the applicant was questioned as a victim of the crime. On the same day Aminat O. was questioned. They reiterated their previous statements and stated that their jewellery had disappeared after the special operation. 36. On 24 March 2010 Adnan I. was questioned as a witness. He gave detailed submissions about the events of 21 October 2009, in line with his statement of 9 December 2009 (see paragraph 24 above). He described in detail the encounter with Sherip Delimkhanov, Valid A. and about fifteen servicemen of the regiment at its headquarters on the night of 22 October 2009. The witness stressed that the police officers had referred to a blood feud which would now fall on his family, in retribution for the death of their colleague in his house. He then described how Valid A. had led SaydSalekh into and out of the room by holding him by the neck from behind and forcing him to bend forward. The witness described the signs of beatings and blood on his nephew’s face, the fact that he was frightened and was shaking, and that he spoke fast and without looking at anyone. His nephew had admitted that he had maintained contacts with illegal fighters by “Internet chat”. After that admission Mr Delimkhanov had said that “we shall kill this dog and avenge our colleague”, but that he could be spared if he cooperated. Adnan I. then pleaded with Sayd-Salekh to do so to save his life. His nephew said that he could establish contact with illegal fighters on the Internet, but only during the daytime. After that, at about 12.30 a.m. on 22 October 2009, the witness was released from the regiment headquarters and returned home. He had not seen his nephew after that. 37. Adnan I. described the threats directed at him and his son Magomed. He stated that in early December [2009] he had been invited, under threat, to talk to Mr Delimkhanov, who had told him that he had two days to prove that he had seen Sayd-Salekh at Mr Delimkhanov’s office. Then, at about 6.45 a.m. on 29 December 2009, a group of about fifteen armed men wearing black uniforms and masks burst into his house looking for his son Magomed. After that Magomed I. left Russia, and the witness was not prepared to disclose his place of residence, out of fear for his life. 38. At some point the investigation found out that the headquarters of the “oil regiment” was equipped with CCTV cameras, but that their contents were erased within ten days. 39. In September 2010 the investigation sought to establish a complete list of servicemen from various security and police detachments who had taken part in the operation on 21 October 2009. 40. On various dates during 2010 the investigators questioned a number of police officers from the external guards regiment and from the UrusMartan ROVD who had taken part in the special operation in question and who had been present at the offices when the applicant and her relatives had been there. 41. The servicemen from the Urus-Martan ROVD confirmed that they had taken part in the operation, and also that two suspects had been killed and that there had been police casualties. They also confirmed that the applicant’s house had been burned down. They were not aware that the applicant and her brother-in-law had been questioned at the ROVD. 42. Mr Delimkhanov was questioned as a witness on 23 June 2010. He confirmed that after the operation of 21 October 2009 he had orally instructed his subordinates to bring Sayd-Salekh Ibragimov, his uncle and cousin to the regiment’s headquarters. During a conversation Sayd-Salekh Ibragimov had confirmed that he had information about members of illegal armed groups, and promised to cooperate. He also promised to return in order to submit further information. He and his relatives had then left the regiment’s headquarters. Since that date neither Sayd-Salekh Ibragimov nor his relatives had been to the regiment’s headquarters. 43. Another serviceman of the regiment, Valid A., on 23 June 2010 gave similar statements about the three men being brought to the regiment headquarters at about midnight on 21 October 2009, the ensuing discussion and the fact that they had left the premises. 44. Several other servicemen of the external guards regiment were also questioned. Some of them denied any knowledge that Sayd-Salekh Ibragimov or his relatives had been to the regiment’s headquarters in the evening of 21 October 2009. However, one serviceman, Shamsudy A., who had been on duty on the night in question, stated on 18 December 2009 and again on 4 March 2010, that Sayd-Salekh “had come to see the commander of the regiment”. Soon afterwards, two other men – Adnan I. and his son Magomed I. – also arrived to meet Mr Delimkhanov. About thirty minutes later the three men had left. No records were made of their visit or questioning. Another serviceman of the regiment, Usman D., stated on 18 December 2009, referring to Shamsudy A., that Sayd-Salekh and his relatives “have been invited to see Sherip Delimkhanov at about 11 p.m. on 21 October 2009”. 45. It appears from the exchange of letters between the Investigating Committee and the Ministry of the Interior that the investigation on several occasions tried to secure further participation of Mr Delimkhanov and two other high-ranking servicemen of the Ministry in the investigation, by means such as questioning and confrontation with other witnesses. On 28 September 2010 the investigator in charge of the case wrote a report to his superior, the head of the second serious crimes department of the Chechnya Investigating Committee. He described his attempts to obtain a confrontation between Adnan I. and Mr Delimkhanov. The investigator wrote that he had finally been invited to Mr Delimkhanov’s office, where the latter first refused to participate in the confrontation due to his heavy workload, and then insisted that the confrontation should take place immediately and in his office. The investigator’s attempts to arrange for a confrontation within a reasonable time and on the premises of the Investigating Committee have been unsuccessful. 46. From the subsequent documents it follows that on 4 October 2010 the investigator terminated his work with the Investigating Committee and the file was transferred to another investigator. 47. At 4.30 p.m. on 21 October 2009 investigators of the AchkhoyMartan district department of the investigating committee examined the buildings at 117 Gonchayeva Street. They described two male bodies, two machine guns, two improvised explosive devices, and a number of new and empty ammunition cartridges. They also noted the effects of fire in the houses and outbuildings. Both bodies bore gunshot wounds. An additional inspection of the site took place on 22 October 2009. 48. On 19 December 2009 the Achkhoy-Martan district department of the investigating committee opened a separate criminal investigation of the events of 21 October 2009, on suspicion of violence directed at state officials, membership of an illegal armed group, wilful damage to property and unlawful handling of arms and explosives. A number of police officers who had taken part in the operation were questioned. Firefighters who had attended the scene were also questioned. It does not appear that the cause of the fire at the applicant’s address has been established. 49. It appears that this investigation, directed at unknown persons, is still pending. 50. In response to the Court’s request, the Government submitted a complete copy of the criminal investigation file no. 66102 (five volumes, over 1,100 pages). The investigation was adjourned on one occasion and reopened. In the latest documents the investigator summarised the findings as follows (the passage quoted below is taken from the decision of 6 September 2010 to extend the term for investigation): “On 21 October 2009 a special operation aimed at discovering members of illegal armed groups was carried out at 117 Gonchayeva Street. The operation was carried out jointly by servicemen from [five different units of the Ministry of the Interior of Chechnya, including the external guards regiment], [the Argun Town Department of the Federal Security Service (FSB)] and servicemen of the Urus-Martan ROVD. In the course of the operation unidentified servicemen of the Urus-Martan ROVD detained [the applicant] and [Adnan I.]. At about midnight on 21 October 2009 SaydSalekh Ibragimov arrived voluntarily at the headquarters of the [external guards regiment] situated in Grozny at the following address ... where he was orally questioned in room 13 about the incident which had taken place on 21 October 2009 ... At about 12.30 a.m. on 22 October 2009 S.-S. Ibragimov left the headquarters of the [regiment] and his whereabouts remain unknown”. 51. In addition to the measures described above, the investigation has sent out dozens of requests to various law-enforcement bodies, detention centres, hospitals and travel agencies, but has not received any additional relevant information about the whereabouts of Sayd-Salekh Ibragimov. 52. It appears that by the end of 2010 the investigation was still pending, without any tangible results as to the fate of the applicant’s son. No-one has been charged with any crime. 53. The applicant submitted that on 14 December 2009 Adnan I. had been invited to meet with the commander of the “oil regiment”, Mr Sherip Delimkhanov. Adnan I. and his representative went to Mr Delimkhanov’s home, situated next to the regiment’s headquarters. Adnan I. claimed that he had covertly made an audio recording of the conversation, which was partly in Chechen and partly in Russian; a copy of that recording has been submitted to the Court by the applicant. According to the applicant, Mr Delimkhanov told Adnan I. that as the oldest man in the house he was to be held responsible for what had happened there. Accordingly, the blood feud resulting from the death of the policeman should fall on him. Mr Delimkahnov alleged that he had protected Adnan I. from revenge attacks by other servicemen, but now since he had accused Mr Delimkhanov of the torture and murder of his nephew, he would no longer do so. Mr Delimkhanov also stated that he could obtain plenty of statements which would show that Sayd-Salekh Ibragimov was released from the headquarters of the regiment. He suggested that Sayd-Salekh had “gone to the forest” to fight, and that his family had staged the story of kidnapping. 54. The applicant submitted further that on 29 December 2009 a group of armed men had burst into Adnan I.’s house and searched it, without presenting any documents or identifying themselves. The applicant submitted that her brother-in-law had complained to the prosecutors’ office about this incident, but did not present any documents. 55. On 7 February 2010 three lawyers of the Committee Against Torture NGO involved in representing the applicant and other individuals complaining of human rights violations in Chechnya were detained overnight by officers of the Shali District Department of the Interior. On 10 February 2010 the Committee issued a public statement denouncing the detention as unlawful, and referred to previous instances of pressure on the applicant and her relative. 56. Articles 20, 21 and 20 of the Constitution provide that everyone has the right to life and the right to liberty and personal security, which are guaranteed and protected by the State. No one shall be subjected to cruel or degrading treatment or punishment. 57. Articles 45 and 46 of the Constitution guarantee judicial protection of rights under the Constitution. 58. Articles 52 and 53 of the Constitution protect the rights of victims of crimes. The State guarantees victims access to justice and compensation for damage. Everyone is entitled to compensation for damage caused by unlawful actions of State officials. 59. Articles 126 and 127 of the Russian Criminal Code stipulate that kidnapping and unlawful deprivation of liberty, respectively, are crimes punishable by up to fifteen and eight years of imprisonment respectively. Article 105 provides that murder is punishable by six to fifteen years’ imprisonment. Aggravated murder, for example if committed by an organised group, is punishable by prison terms, including life imprisonment, and by the death penalty. 60. Articles 21 and 22 of the Code provide as follows: Article 21. Obligation to prosecute “1. Public prosecution in criminal cases ... shall be carried out on behalf of the State by a prosecutor, an investigator or an inquiry officer. 2. In every instance in which evidence of a crime is observed, the prosecutor, investigator, inquiry agency, or inquiry officer shall take the actions specified by this Code to determine the facts of the crime that took place and to apprehend the persons guilty of committing the crime ...” Article 22. Victims’ right to take part in criminal prosecutions “The victim, his legal guardian and/or designated representative shall have the right to take part in the criminal prosecution of the accused ...” 61. Articles 124 and 125 of the Code provide as follows: Article 124. Examination of complaints by a prosecutor or head of an investigating body “1. A prosecutor or head of an investigating body shall examine a complaint within ... ten days of its receipt ...” Article 125. Judicial examination of complaints “1. Decisions of an investigator or prosecutor to refuse to initiate a criminal investigation ... or any other decisions and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede citizens’ access to justice, may be appealed against to a district court, which is empowered to examine the legality and grounds of the impugned decisions ... 3. The court shall examine the legality and the grounds of the impugned decisions or acts ... within five days of receipt of the complaint ... 5. Following examination of the complaint, the court shall deliver one of the following decisions: (1) Declaring the decisions, acts or omissions of the official unlawful or unsubstantiated and obliging the official to eliminate any defects; (2) Not allowing the applicant’s complaint ...” 62. Articles 140,141 and 144 of the Code provide as follows: Article 140. Grounds and bases for initiating a criminal case “1. The following shall serve as grounds for initiating a criminal case: a) a complaint of a crime ...” Article 141. Criminal complaint “1. A criminal complaint may be submitted in oral or written form.” Article 144. Procedure for reviewing a report of a crime “1. An inquiry officer, inquiry agency, investigator, or prosecutor must accept and investigate every report of a crime ... and shall make a decision on that report ... no later than three days after the filing of the report ... 3. A prosecutor, head of an investigation unit or head of an inquiry agency ... may extend the time period specified by (1) of this Article to up to ten days ... 5. Any refusal to accept a report of a crime may be appealed against to the prosecutor or to a court in accordance with the procedures established by Articles 124 and 125 of this Code ... 63. Articles 157 and 159 of the Code provide as follows: Article 157. Urgent investigative actions “1. When there is evidence of a crime for which a preliminary investigation is required, an inquiry agency shall initiate a criminal case and take urgent investigative actions ...” Article 159. Mandatory review of official requests submitted “1. An investigator or inquiry officer shall be obliged to review every official request filed in a criminal case ... 2. Under this requirement ... a victim ... or their representatives may not be denied the opportunity to question witnesses or to have a forensic expert analysis or other investigative actions conducted ...” 64. Chapter 59 of the Code provides that pecuniary and non-pecuniary damage caused, amongst other things, by unlawful actions of State officials should be compensated for in full. 65. According to document CM/Inf/DH(2010)26E of 27 May 2010 entitled “Action of the security forces in the Chechen Republic of the Russian Federation: general measures to comply with the judgments of the European Court of Human Rights”, a special unit has been set up within the Investigating Committee in Chechnya to address the issues raised in the Court’s judgments. An information document submitted by the Russian Government in March 2011 (DH-DD(2011)130E) stated that of 136 cases discussed (concerning the “Khashiyev group” involving findings of violations of core rights in the Northern Caucasus), only two criminal cases have been concluded (one of which was terminated as a result of the suspect’s death). The remainder were pending; most of them have been suspended for failure to identify the suspects. 66. The relevant part of Interim Resolution CM/ResDH(2011)292 of 2 December 2011 on “Execution of the judgments of the European Court of Human Rights in 154 cases against the Russian Federation concerning actions of the security forces in the Chechen Republic of the Russian Federation” stated: “1. General framework for domestic investigations carried out in cases which gave rise to a judgment of the Court or to an application before the Court Considering the important changes introduced after the events described in the Court’s judgments in the general framework governing domestic investigations and in particular those conducted in cases which gave rise to a judgment of the Court or an application before the Court; ... Noting with interest the efforts reported by the Russian authorities with a view to remedying the shortcomings of the initial investigations, establishing the facts as well as the identities of those responsible, including servicemen and other representatives of federal forces who might have been involved in the events described in the judgments; ... Noting however with concern that despite the efforts made by the Investigative Committee and by other competent authorities, more than six years after the first judgments of the Court, in the vast majority of cases, it has not yet been possible to achieve conclusive results and to identify and to ensure the accountability of those responsible, even in cases where key elements have been established with sufficient clarity in the course of domestic investigations, including evidence implicating particular servicemen or military units in the events; Underlining therefore the need to ensure that the investigating authorities make full and effective use of all means and powers at their disposal as well as to reflect on whether any other additional measures are still required, bearing in mind the difficulties inherent in investigations conducted into the consequences of a large-scale antiterrorist operation such as that at issue; Stressing in addition that the necessary action in this respect should be taken as a matter of priority since with the passage of time, the risk of loss of evidence increases and even if they are eventually identified, the prosecution of those responsible may become impossible given the expiry of the time-limits in the statutes of limitation ... URGES the Russian authorities to enhance their efforts so that independent and thorough investigations into all abuses found in the Court’s judgments are conducted, in particular by ensuring that the investigating authorities use all means and powers at their disposal to the fullest extent possible and by guaranteeing effective and unconditional co-operation of all law-enforcement and military bodies in such investigations; STRONGLY URGES the Russian authorities to take rapidly the necessary measures aimed at intensifying the search for disappeared persons; ENCOURAGES the Russian authorities to continue their efforts to secure participation of victims in investigations and at increasing the effectiveness of the remedies available to them under the domestic legislation; ...” 67. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) issued three public statements in relation to Chechnya between 2001 and 2007, deploring the absence of cooperation in the investigation of the alleged violations. The public statement of 13 March 2007 conceded that “the abductions (forced disappearances) and the related problem of unlawful detention ... continue to constitute a troubling phenomenon in the Chechen Republic”. In January 2013 the CPT, for the first time, published a report to the Russian Government drawn up after its visit to the North Caucasian region of the Russian Federation from 27 April to 6 May 2011. The report focussed on the allegations of ill-treatment and reported allegations of unrecorded detentions and detentions in unlawful locations. It raised the problems of impunity of the law-enforcement personnel for such crimes and recommended to implement measures aimed at safeguarding the interests of the detainees as of first moments of detention, including proper record-keeping of detention, notification of relatives, access to a lawyer and to medical council, providing full information about their rights. 68. On 4 June 2010 the PACE Committee on Legal Affairs and Human Rights presented a report entitled “Legal remedies for human rights violations in the North-Caucasus Region”. On the basis of that report, on 22 June 2010 PACE adopted Resolution no. 1738 and Recommendation no. 1922 deploring the absence of an effective investigation and prosecution of serious human rights violation in the region, including disappearances. They found that “the suffering of the close relatives of thousands of missing persons in the region and their inability to get over their grief constitute a major obstacle to true reconciliation and lasting peace.” Among other measures, the Resolution called on the Russian authorities to: “13.1.2. bring to trial in accordance with the law all culprits of human rights violations, including members of the security forces, and to clear up the many crimes which have gone unpunished ...; 13.1.3. intensify co-operation with the Council of Europe in enforcing the judgments of the European Court of Human Rights, especially where they concern reinforcement of the individual measures to clear up the cases of, in particular, abduction, murder and torture in which the Court has ascertained a lack of proper investigation; 13.1.4. be guided by the example of other countries which have had to contend with terrorism, particularly as regards the implementation of measures conducive to the suspects’ co-operation with justice in dismantling the terrorist networks and the criminal entities that exist within the security forces, and to prevent further acts of violence; ... 13.2. both Chambers of the Russian Parliament to devote their utmost attention to the situation in the North Caucasus and to demand exhaustive explanations of the executive and judicial authorities concerning the malfunctions observed in the region and mentioned in this resolution, and to stipulate that the necessary measures be applied.” In Recommendation no. 1922, PACE advised the Committee of Ministers to: “2.1. pay the utmost attention to the development of the human rights situation in the North Caucasus; 2.2. in enforcing the judgments of the European Court of Human Rights (the Court) concerning this region, emphasise the prompt and complete elucidation of the cases in which the Court has ascertained an absence of effective investigation; ...” 69. In Resolution 1787 (2011) entitled “Implementation of judgments of the European Court of Human Rights”, PACE considered deaths and illtreatment by law-enforcement officials and a lack of effective investigation thereof in Russia as one of the four “major systemic deficiencies which cause a large number of repetitive findings of violations of the Convention and which seriously undermine the rule of law in the states concerned”. 70. A report dated 6 September 2011 by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following his visit to the Russian Federation from 12 to 21 May 2011, found a number of positive developments aiming to improve daily life in the republics visited. Despite those positive steps, the Commissioner defined as some of the most serious issues counter-terrorism measures, abductions, disappearances and ill-treatment, combatting impunity and the situation of human rights defenders. The report included the Commissioner’s observations and recommendations in relation to those topics. 71. In particular, the Commissioner was deeply concerned by the persistence of allegations and other information relating to abductions, disappearances and ill-treatment of people deprived of their liberty in the Northern Caucasus. While the number of abductions and disappearances in Chechnya might have decreased recently compared with 2009, the situation remained far from normal. Referring to the far-reaching effects of disappearances on a society as a whole, he supported the proposal of the Presidential Council for Civil Society Institutions and Human Rights to create an interdepartmental federal commission to determine the fate of individuals who had gone missing during the entire period of counter-terrorism operations in the Northern Caucasus. The Commissioner further emphasised the importance of systematic application of rules prohibiting the wearing of masks or non-standard uniforms without badges, as well as the use of unmarked vehicles in the course of investigative activities. 72. The Commissioner went on to state that the persistent patterns of impunity for serious human rights violations were among the most intractable problems and remained a source of major concern to him. There had certainly been a number of positive steps, such as the establishment of Investigating Committee structures, increased support for victim participation in criminal proceedings, and the promulgation of various directives regarding the conduct of investigations. Despite those measures of a systemic, legislative and regulatory nature, the information gathered during the visit had led the Commissioner to conclude that the situation had remained essentially unchanged in practice since his previous visit in September 2009. He called on the Russian leadership to help in creating the requisite determination on the part of the investigators concerned by delivering the unequivocal message that impunity would no longer be tolerated. 73. In September 2009 Human Rights Watch (HRW) issued a report entitled ‘Who Will Tell Me What Happened to My Son? Russia’s Implementation of European Court of Human Rights Judgments on Chechnya’, which was strongly critical of the absence of progress in the investigations in disappearance cases. 74. On 20 April 2011 HRW and two Russian NGOs, the Committee Against Torture and Memorial, published a joint open letter to the Russian President. They spoke of a “complete failure of the Chechen Republic investigating authorities to deal with abductions of Chechnya residents by local law-enforcement and security agencies”, of “systematic sabotage of investigations by Chechen law-enforcement agencies and the inability of the Investigating Committee to fulfil its direct mandate to investigate crimes”. | 1 |
dev | 001-92428 | ENG | ISL | ADMISSIBILITY | 2,009 | ADOLFSSON AND OTHERS v. ICELAND | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | The applicants, (1) Mr Hilmar Kristinn Adolfsson, (2) Mrs Ragnheidur Hauksdóttir and (3) Mr Sveinbjörn Egill Hauksson are Icelandic nationals who were born respectively in 1935, 1948 and 1954. The first and third applicants reside in Reykjavík and the second applicant in Kópavogi, Iceland. They are represented before the Court by Mr Einar Gautur Steingrímsson, a lawyer practising in Reykjavík. The Icelandic Government were represented by their Acting Agent, Mrs Ragna Árnadóttir, of the Ministry of Justice and Ecclasiastical Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants were the direct heirs of Mrs Margrét þorsteinsdóttir (“M.”), who was born on 29 August 1903 and who died on 22 February 2000. M. had stated in her will, made in 1971 that all her property was to be divided after her death equally between her brother, X, and a woman named Hulda Sveinbjörnsdóttir (“H.”). It was also stated that if X were to die before M, all her property should pass to H., and if she was no longer alive, to her children and grandchildren. There were no blood ties between M. and H. who had been married to M.’s stepson Y. Both Y. and his father Z. had died before 1971 when M. made her will. The second and third applicants are the children of H. and the first applicant is the husband of Svava Hauksdóttir another child of H., sister of the second and third applicants, who is now deceased. In February 1990 a deceased brother of M. left her a considerable inheritance. M. was hospitalised in September 1991 on account of her mental condition and her inability to take care of herself. She was diagnosed as suffering from Dementia Senilis 290.0. In the meantime, in February 1993, Mr G.S., Attorney, and Mr G.K. and Mrs K.P. were convicted of embezzlement of M.’s assets during the years 1991-1992. As from 17 July 1992 M. was, at the request of H., declared incapable of managing her own financial affairs. On 20 July 1992 the District Commissioner of Reykjavík (hereinafter referred to as “the Commissioner”) appointed S.R. as M.’s legal trustee. At that time information about various financial irregularities involving S.R. was on public record, including a number of warrants of execution issued against his company (1985-1987), a petition for bankruptcy and liquidation of the company to cover preferential claims amounting to 25,000,000 Icelandic Crowns (ISK) (1989), a conviction and three months’ conditional prison sentence for embezzlement of employees’ salaries (1990), plus a number of petitions for bankruptcy (1990 and onwards). In 1997 H. passed away. On 17 March 1998 the Commissioner requested S.R. to provide yearly reports regarding decisions he had taken on M.’s behalf. Thereafter, in the absence of any such reports, renewed requests were made on 9 June 1998, 3 May 1999 and 2 June 2000. On 9 October 2002 S.R. was convicted of embezzlement of M.’s assets, in respect of amounts totalling ISK 7,908,943 (approximately 90,000 euros) and was sentenced to 18 months’ imprisonment. On 1 April 2004 the first applicant’s deceased wife and the second and third applicants instituted civil compensation proceedings against the Commissioner and the State, on the ground that M. had sustained damage as a result of the appointment, as a legal trustee, of a person who had a very dubious past. They claimed that upon M.’s death this claim had passed to them as M.’s heirs. On 11 January 2005 the Reykjavík District Court found in favour of the respondent and rejected the plaintiffs’ claim, finding no ground for imposing strict liability, nor any basis for finding negligence since the Commissioner had had no reason to believe that S.R. was unfit to be a custodian when he was appointed. According to the summary of facts contained in the District Court’s judgment, the plaintiffs were granted permission to carry out a private division of M.’s estate on 14 April 2000 and completed their division of the estate in September 2001. In its conclusions, the District Court held inter alia that the estate at the time of M.’s death could not be considered a party to the case, as the division of the estate had been concluded in September 2001. On 11 April 2005 the Supreme Court upheld the lower court’s judgment, giving the following reasoning: “The Supreme Court concurs with the District Court that in order for the defendant to be held liable for the losses suffered by the [applicants] and caused by the guardian, it must be demonstrated that this was due to neglect on the part of the defendant’s employees. The circumstances which resulted in the appointment of the guardian are not entirely clear. Nevertheless, it appears to be established that the person who was appointed guardian had taken the initiative in having the testator deprived of her financial competence; it appears that there was reason for doing so, and that the mother of the appellants, Ragnheiður and Sveinbjörn, was consulted on this; she has since died, but at the time she was M.’s sole heir. At the time that the guardian was appointed, the estate of a limited company of which he was in charge was the subject of liquidation proceedings, and sentence had been passed on him in the Hafnafjörður and Garðir Criminal Court for not having transferred money which the company had collected from its employees. On the other hand, there is no evidence to suggest that he was not competent to manage his own financial affairs and in other respects he met, formally, the conditions for being appointed as a guardian according to section 29 of the then applicable Legal Competence Act, No. 68/1984. It has not been established that the District Commissioner should have suspected that he would discharge his duties of financial management badly. With the introduction of the Legal Competence Act, No. 71/1997, great changes were made in the legal provisions and practice regarding reporting by guardians and the supervision of their work. Repeated attempts by the Commissioner’s employees to have the guardian comply with his statutory duties under section 63 (3) of that Act to report, straightaway in the early part of 1998, produced no result. It can be deduced from the ... District Court’s judgment of 14 April 2002 that by that date most of the damage had been done. From the above, it follows that even if the application of the law by the Commissioner’s office should have been more efficient, it has not been established that the Commissioner or his employees violated their official duties and so brought compensatory liability on the defendant. In the light of these considerations, the District Court’s judgment must be upheld.” Section 27 of the Inheritance Act, No. 8/1962, provides: “An heir may not dispose of an inheritance which he expects to receive.” This provision has been understood as placing a prohibition on any type of disposal, whether by assignment, mortgage or other deed, of an inheritance which has not yet devolved on the recipient. It also follows from this provision that an inheritance that has not yet devolved on the recipient cannot be the object of execution measures carried out against the person who expects to receive the inheritance. The rule reflects accepted academic views on the concept of “property” in Icelandic law. One of the foremost conditions for any right to be considered “property” is that it is both unconditional and active so that the owner in question can dispose of it as if it were his property. This provision of the Inheritance Act confirms these views regarding a future inheritance. | 0 |
dev | 001-88919 | ENG | MDA | ADMISSIBILITY | 2,008 | SALINSCHI v. MOLDOVA | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | The applicant, Mr Victor Salinschi, is a Moldovan national who was born in 1961 and lives in Truşeni. He was represented before the Court by Mr G. Voicu, a lawyer practising in Danceni. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu. The facts of the case, as submitted by the parties, may be summarised as follows. On 16 February 1995 a private company (“T.”) bought from the State an industrial building. The contract was authenticated by a notary on 23 February 1995 and was registered with the Bureau of Technical Inventory (which later became known as the Territorial Cadastral Office (“the TCO”)) on 27 February 1995. In January 1999 that building was sequestrated by the State Fiscal Inspectorate (“the SFI”) in settlement of debts to the State. It was then offered for auction. On 2 June 1999 the applicant succeeded in that auction. In accordance with the auction conditions, the applicant paid the price of the building (212,000 Moldovan lei, equivalent to 17,274 euros at the time) and signed the “Contract for the purchase of goods sold at auction” on 2 September 1999. According to clause 1.3 of the contract, the property right over the object sold at the auction was transferred to the buyer from the moment of signing the “act for the transfer of goods”. The parties also signed the minutes of the auction, which provided, in section (4), the obligation of the buyer to register the contract of sale with the Bureau of Technical Inventory (which later became known as the Territorial Cadastral Office (“the TCO”)). In accordance with section (6) of the minutes, the seller undertook to conclude the contract for the sale of the item “in accordance with the law, the auction conditions and the present minutes”. According to the applicant, in order to observe the requirements of sections (4) and (6) of the auction minutes, the applicant and an SFI representative appeared before a notary in order to have the contract authenticated. The notary refused, however, to authenticate the contract because the seller (the SFI) had not presented documents confirming that the building had belonged to T. and that the SFI had the right to confiscate it. No evidence was submitted to support this claim. However, the applicant submitted a letter from a notary dated 20 March 2006, according to which registration of his property right was impossible in view of certain deficiencies in the contract and the absence of several documents, which had to be produced by the seller. The applicant requested the SFI to issue the relevant documents and to have the contract authenticated by a notary. On 15 September 1999 the applicant and SFI representatives signed an “act for the transfer of goods”. On 29 December 1999 T. bought from the Chişinău Municipality a plot of land dependent on the building bought by the applicant at the auction. The applicant requested the TCO to register his title to the building on the basis of the contract of sale. On 19 January 2000 the TCO refused registration because the contract had not been authenticated by a notary as required by “civil law”. The applicant claims that he has no access to his building. His request to T. to vacate it and to allow him free possession was allegedly ignored. On 9 June 2000 the SFI repeatedly sent the TCO a copy of the sequestration order concerning the building belonging to T. On 25 August 2000 the TCO informed the applicant that no real property was registered as belonging to T. on that date. On 26 September 2000 the SFI refused to issue the applicant with any additional documents or to participate in the authentication of the contract before a notary, stating that according to the contract of sale, Government Decision no. 685 and Law no. 633-XIII (see below) the applicant had become the owner of the building from the date when he signed the “act for the transfer of goods” (i.e. 15 September 1999). The SFI considered that it had fulfilled its part of the contract and had acted in accordance with the law. On 19 December 2000 the SFI rejected another request by the applicant, following which he initiated administrative proceedings against it. On 27 March 2001 the Chişinău Regional Court left the applicant’s claim unexamined because it was not subject to administrative jurisdiction. On 6 June 2001 the Court of Appeal quashed that judgment and ordered a full re-hearing of the case. On 13 August 2001 the Chişinău Regional Court rejected the applicant’s claims as unfounded. The court found that the SFI had acted in accordance with the law and duly transmitted the rights in the property to the applicant when they both signed the ‘Act for the transfer of goods’ on 15 September 1999. The court added that, according to the law, the applicant’s property right could be registered based on the auction results and the contract concluded with the SFI, without any obligation for further formalities between the parties. It considered the refusal of the TCO to register the applicant’s right to be a separate issue that could be examined in other court proceedings, which the applicant refused to initiate. On 14 November 2001 the Court of Appeal upheld that judgment, basing itself on essentially the same arguments. It added that the law expressly mentioned the rights of a successful bidder at auction, and that there was no need to register the contract with a notary. The judgment was final. The applicant requested a review of that judgment. On 29 November 2001 the same panel of judges rejected that request. In response to a letter from the applicant, the SFI replied on 20 March 2006 that T. had never challenged the SFI’s confiscation of the building which had been sold at the auction. The relevant provisions of the Civil Code in force at the relevant time read as follows: “Article 153 The owner may request the removal of any impediment to the enjoyment of his rights even if this impediment is not related to loss of possession. Article 2402 Contracts for the sale of real estate belonging to natural and legal persons shall be authenticated by a notary and registered within three months with the [Territorial Cadastral Office].” The relevant provisions of the Law on the real estate register no. 1543XIII (25 February 1998) read as follows: “Section 29 ... (3) The documents submitted for the registration of a title must ..., in the cases provided for by law, be authenticated by a notary and sealed. ... (5) The following shall not be accepted as a basis for registration of a title: a) documents which do not correspond to the requirements under (2)-(4) above; ...” The relevant provision of the regulation “Regarding the manner of sequestration and sale of goods”, adopted by Government Decision no. 685 of 23 June 1997 read as follows: “After the signing of the sales contract the fiscal authority shall obtain the possession of sequestered goods...”. The relevant provisions of the Law regarding the manner of forced collection of taxes and other payments no. 633-XIII of 10 November 1995 read as follows: “Section 6(6) (10) After signing the contract of sale at the auction, the fiscal authority shall transmit the sequestered item to the buyer. The property right passes to the buyer from the moment of signing the act for the transfer of goods.” | 0 |
dev | 001-23312 | ENG | GBR | ADMISSIBILITY | 2,003 | LAM and OTHERS v. THE UNITED KINGDOM | 4 | Inadmissible | Matti Pellonpää;Nicolas Bratza | The first applicant is a British national, born in 1949 and living in Southport, England. The second applicant, also a British national, is his wife, born in 1950. The third and fourth applicants are their children, born respectively in 1974 and 1976. The applicants were represented in the initial stages of the application by the first applicant and then by Dr K.S. Badsha, a legal consultant with the Environmental Law Centre, Southport, England. The facts of the case may be summarised as follows. The first applicant was the owner of a Chinese restaurant situated in a designated conservation area in the centre of Paignton. The applicant and his family lived on the premises. In 1989 the applicants had to abandon their restaurant and their home above it on account of the emission of toxic cellulose paint spray fumes from a warehouse (unit 2) used by a company (“Namesakes”) owned by a Mr Brennan. The company was engaged in the manufacture of wooden toys. In addition to the financial loss they suffered as a result of the closure of their business, the applicants’ health (as well as that of others living in the locality) was also badly affected by the toxic emissions. A complaint was first made to Torbay Borough Council (“the Council”) in 1989. Subsequent complaints followed. Although the Council served a prohibition notice and an abatement notice on the company between October 1990 and December 1991, it would appear that no steps were taken to enforce these notices. In December 1992 the company relocated its activities and the applicants returned to their premises in 1993. The applicants insist that the paint spraying operation was illegal and that the Council has tried to conceal the illegality by purporting there to be planning permission for the activity operating out of unit 2. They maintain, inter alia, The applicants commenced litigation against Mr Brennan in January 1991. The applicants subsequently sued the Council, claiming damages for personal injury and damage to property. They contended that the Council acted beyond its discretion, ultra vires and abused its power by purporting there to be planning permission when, according to the Council’s own records, no planning permission had ever been granted to the building (unit 2) where the company’s operation took place. The actions against the company and the Council were consolidated. On 24 January 1996 Mr Justice Collins, on the application of the Council, ordered that the applicants’ writ against the Council be struck out as showing no cause of action either under statute or at common law. Mr Justice Collins considered that the applicants’ primary remedy was the private law remedy for damages and/or an injunction against the company to stop the nuisance. Mr Justice Collins also referred to the range of remedies which allowed an individual to protect himself in the event of a local authority not taking action to bring an end to a nuisance, including a private law claim against the person creating the nuisance and the laying of a complaint before a Magistrates’ Court. According to the applicants, Mr Justice Collins, without justification, diverted the basis of their claim by proceeding on the assumption that planning permission had been given in 1988 to the company to use unit 2 for its paint spraying activity. On 30 July 1997 the Court of Appeal, dismissed the applicants’ appeal against Mr Justice Collins’ ruling. According to the applicants, the Court of Appeal accepted the false statement of the Council that planning permission was in place without requiring it to substantiate this or to have regard to their evidence disproving the Council’s assertion. On 13 January 1998 the House of Lords refused the applicants leave to appeal. The first applicant subsequently complained to the Council that a pottery business which had taken over occupancy of one of the units (unit 1) was emitting smells and noises and that it did not benefit from planning permission. He contended that planning permission had never been granted in respect of either unit 1 or unit 2. At the meeting held on 10 November 1997 the Council’s planning committee (“the committee”) decided that there had been no breach of planning conditions and that no enforcement action had to be taken against the owner of the pottery business. According to the first applicant, the committee did not answer his challenge to the very existence of planning permission for the use of units 1 and 2. The first applicant insists that the committee was deliberately misinformed by its officers about the scope of the original planning application made by Mr Brennan’s company and the true state of the planning record. The first applicant was present at part of the meeting and made representations to the committee. According to the first applicant, he only received official notification of the committee’s decision on 16 January 1998 through a Council official who had agreed to reconsider the local authority’s decision. The Council official confirmed in the letter that the premises were being used legitimately and added that any smells or fumes emanating from the premises were intermittent and did not constitute a statutory nuisance. On 6 February 1998, fifteen days after being notified of the committee’s decision, the first applicant sought leave to apply for judicial review. He maintained, inter alia, that the Council had failed to take enforcement proceedings against the owner of the pottery business who was operating it without the necessary planning permission. The first applicant stresses that, in the ensuing judicial review proceedings, the Council argued that planning permission had been granted to unit 1. However, this was in contradiction to the stance the Council had taken in the earlier civil proceedings in which it contended that unit 2 benefited from planning permission. The first applicant reiterates that the true position is that neither unit benefited from planning permission since the records showed that planning permission only covered a storage building at the rear of their home and restaurant. The first applicant draws attention to his view that Council officials fraudulently deleted the existence of the storage on the planning documentation which was submitted in the judicial review proceedings. On 25 June 1998 Mr Justice Moses refused the first applicant’s request for an adjournment to enable him to put forward evidence as to why he had delayed the initiation of the leave proceedings in respect of the decision of 10 November 1997. The judge considered that the applicant had ample time to produce such evidence between the date when the Council notified him that it would oppose the application on grounds of delay and the start of the proceedings. The judge dismissed the first applicant’s application for leave to apply for judicial review. On appeal, Lord Justice Kennedy conceded that the scope of Mr Brennan’s application for planning permission and the extent of the permission granted was not entirely clear. However, with reference to Order 53, rule 4(1) of the Rules of the Supreme Court and by analogy with time-limits laid down in planning legislation, Lord Justice Kennedy found himself: “... driven to the conclusion that here the application was not made promptly, as required by Order 53, rule 4 of the Rules of the Supreme Court. There seems to be no reason why the applicant should have waited to receive the letter of 16th January 1998 before seeking to challenge the decision of 10th November. I can find no good reason to extend the period laid down by the Order.” Lord Justice Kennedy further observed that, even if ten years ago the use made of the premises was unauthorised, it was now too late for the local authority to institute enforcement action. Lords Justices Aldous and Potter agreed with Lord Justice Kennedy’s reasoning. In a judgment dated 28 October 1998 the Court of Appeal dismissed the applicant’s renewed application. The first applicant points out that Lord Justice Potter had sat in the Court of Appeal in the appeal against the ruling of Mr Justice Collins and failed to draw the attention of his colleagues hearing the appeal on the applicant’s judicial review application to the fact that the Council had earlier argued that planning only related to unit 2, whereas in the judicial proceedings it was now claiming that it only covered unit 1. Meanwhile, the applicants’ civil claim in the High Court against Mr Brennan had been stayed pending the outcome of the proceedings against the Council. In February 2002 Mr Brennan applied for an order that directions be given for the future conduct of the applicants’ claim. On 27 February 2002 Deputy Master Chisholm ordered that the stay be lifted and that the case be transferred from the Royal Courts of Justice in London to Exeter District Registry. Deputy Master Chisholm noted in this connection that the proceedings against the Council had come to an end and, moreover, that the European Court of Human Rights had on 5 July 2001 declared inadmissible an application lodged by the applicants (no. 41671/98). The applicants appealed against the Order. The applicants’ appeal was heard by Mr Justice Jackson on 16 July 2002. The applicants argued that it was premature to lift the stay in the proceedings since they had lodged a further application (no. 75341/01) with the Court in Strasbourg contesting the Court’s inadmissibility decision of 5 July 2001. Mr Justice Jackson dismissed the applicants’ appeal on this point. Having examined the Court’s inadmissibility decision, he considered that the applicants’ fresh application had no prospects of success. As to the applicants’ objection to the transfer of the civil action from London to Exeter, the judge concluded that Deputy Master Chisholm has reached his decision in the proper exercise of his discretion on case management issues. COMPLAINTS The applicants maintain that the Court’s inadmissibility decision of 5 July 2001 (application no. 41671/98) is based on an incorrect statement of the facts and that the legal reasoning is seriously flawed. They contend that the Court in that decision committed the same error as the domestic courts by assuming that planning permission had been granted to Mr Brennan by the Council in 1988 and at no stage addressed themselves to the true scope of the permission actually given. The applicants submit that the Court should establish what was actually granted by the Council under planning application no. 88. 1887 and to reach its decision with reference to the documentation that they have supplied. They maintain that the documentation clearly shows that neither unit 1 nor unit 2 was covered by planning permission and that the only premises addressed in planning application no. 88.1887 was a storage building. The applicants assert that the facts of their case disclose breaches of Articles 2, 8 and 13 of the Convention and Article 1 of Protocol No. 1 thereto insofar as an illegal industrial activity has been deliberately allowed to operate to the detriment of their health and property and the Council has knowingly sought to conceal the true nature of the planning record and to purport throughout that planning permission had been given. Furthermore, the facts relied on show that they had no effective remedy to obtain a determination of their complaints against the Council and its officers who acted unlawfully and abused their powers by purporting there to be planning permission for the illegal activity. They rely on Articles 6, 13 and 17 of the Convention. The applicants submit that they have been discriminated against on account of, among other things, their Chinese origin and have been treated differently from those responsible for the emission of the toxic fumes behind their home and restaurant. They rely on Article 14 in conjunction with Articles 2 and 8 of the Convention and Article 1 of Protocol No. 1. With reference to the pending civil action against Mr Brennan, the applicants stress that the outcome of that action is closely linked to the question whether Mr Brennan can rely on the grant by the Council of planning permission to carry on his paint spraying operation. In their submission, if the domestic courts were to accept Mr Brennan’s defence, despite clear evidence to the effect that Council officials purported there to be planning permission for his activity and unlawfully misled the domestic courts in the litigation against the Council by manipulating and concealing the true nature of the planning record, there would a breach of their rights under Articles 6, 8, 13 and 17 of the Convention. They maintain that the Council was biased n favour of Mr Brennan. The applicants contend, among other things, that Mr Justice Jackson in his judgment of 16 July 2002 did not act independently or impartially since he did not query the documents allegedly showing that the Council had given Mr Brennan planning permission, and this despite evidence confirming that Council officials had acknowledged that this was not the case. They invoke Articles 6 and 13 of the Convention. The applicants further contend under Article 6 that the judge was wrong to rely on certain statements in the Court’s inadmissibility decision of 5 July 2001, misconstrued the essence of their claim against the Council and made impermissible use of domestic case law. The applicants insist that the facts relied on disclose a breach of their rights under Article 8 of the Convention since the domestic courts treated their claim as a claim based on damage caused by a legal activity, whereas the true basis of their claim was that they had suffered harm on account of an unlawful activity. The applicants further allege a violation of Article 14 of the Convention, including in conjunction with Article 6. They maintain that they have been discriminated against on account of their Chinese origin and that by denying them their rights to a fair hearing the Court of Appeal failed to treat them on an equal footing to other citizens. The applicants argue that the facts of the case give rise to a breach of Article 17 of the Convention. With reference to Article 1 of Protocol No. 1 the applicants state that the judge purported that the toxic emissions from which they suffered emanated from a legal industrial activity, whereas that activity was illegal and interfered with their property rights. The first applicant lodged the above application on 2 July 2001. In the proceedings before the Court, the applicant is represented by Dr K. S. Badsha, a legal consultant with the Environmental Law Centre, Southport, England. The facts of the case may be summarised as follows. On 13 January 1998 the Appeal Committee of the House of Lords refused the applicants’ petition for leave to appeal. The minutes of the proceedings recorded that the Council could apply for its costs and if the application was granted the amount would be certified if no agreement could be reached on it. The first applicant’s solicitor at the time received a notification dated 30 October 1998 to attend a taxation hearing regarding the costs incurred by the Council in respect of the applicants’ petition for leave to appeal to the House of the Lords against the decision of the Court of Appeal in the civil proceedings against the Council referred to in application no.75341/01. A taxation hearing was held on 19 January 1999 before the Judicial Taxing Officer of the House of Lords. By a decision of 22 April 1999, the Judicial Taxing Officer of the House of Lords allowed the Council’s bill of costs in full (approximately GBP 2,000). The first applicant protested about the decision, including through his MP, but without success. The first applicant maintained that the Council had not been invited to make submissions on the above-mentioned petition (and which was in effect ex parte), that his solicitor had informed him that he had never seen any such submissions, that the Council had never discussed with his solicitor that it would be making an application for costs and what the nature of those costs would be and that the Taxing Officer had abused his powers. The first applicant sought to challenge this decision by way of judicial review. By letter dated 13 February 2001 the first applicant was informed by the High Court’s Administrative Office that the High Court had no jurisdiction in the matter since its jurisdiction only extended to decisions of inferior courts and tribunals. COMPLAINTS The first applicant complains, inter alia, that the Taxing Officer abused his discretion, acted in breach of procedural rules, was biased against him and overlooked the fact that the local authority itself had not complied with the House of Lords own practice directions on the matter of costs. He submits that the Taxing Officer ordered him to pay the Council’s inflated costs in the absence of any authority to do so and further maintains that there was no justification for seeking the Council’s comments on his petition before it had been considered by the Appeal Committee of the House of Lords. The first applicant submits that he was denied a fair hearing in the proceedings before the Taxing Officer, had no effective remedy in respect of the decision reached by him and was the victim of an abuse of rights since the Taxing Officer awarded costs to the defendant Council to which it was not entitled. The first applicant relies on Articles 6, 13 and 17 of the Convention. The application was lodged on 28 November 2002. In the proceedings before the Court, the first applicant is represented by Dr K. S. Badsha, a legal consultant with the Environmental Law Centre, Southport, England. The first applicant joined the Federation of Small Businesses (“FSB”) in 1991. He paid his membership fee, and thereafter renewed his membership annually. His decision to become a member was influenced by the FSB’s undertaking in its promotional literature to pay legal and accountancy fees up to GBP 35,000 in dealing with an in-depth Inland Revenue investigation. The Inland Revenue carried out an in-depth investigation of the first applicant in 1994, after he had sought advice from the tax authorities about his tax situation. In 1996 the Inland Revenue cleared the first applicant of any suspicion of fraud. The first applicant sought to be indemnified for the accountants’/consultants’ costs he had incurred in defending himself during the investigation. According to the first applicant, the FSB’s insurer reversed its initial decision not to indemnify him and agreed to reimburse him the costs he had incurred, only to renege later on its promise. The first applicant declined the insurance company’s proposal to submit the full claim to arbitration. Dissatisfied with the outcome of his dealings with the insurer, on 11 July 2000 the first applicant sued the FSB for breach of contract, relying on the FSB’s unqualified undertaking to cover its members’ costs. On 6 October 2000 District Judge Meredith ordered that the first applicant’s claim be struck out as disclosing no cause of action against the FSB. The judge accepted FSB’s defence that the first applicant’s claim lay against the insurance company which underwrote the undertaking and that FSB’s obligation was limited to introducing him to an insurer. On appeal, His Honour Judge Overend, on 12 January 2001, ordered that the first applicant’s claim be reinstated, being satisfied, firstly, that there was no contractual relationship between the first applicant and the insurance company and, secondly, that the first applicant’s only avenue of redress was to sue the FSB with which he had concluded a contract. Further directions for trial of the case were to be given by a District Judge. On 18 April 2001 District Judge Meredith ordered that the question whether the FSB was liable to the first applicant and, if so, the scope of its liability, be determined as a preliminary issue. On 29 June 2001 His Honour Judge Rucker ordered that all matters relating to the case were to be tried in the current trial window. The first applicant sought leave to appeal against that order in the hope of having the issue of liability tried separately. On 25 September 2001 Mr Recorder Moxon-Browne proceeded to try the issue of the FSB’s liability to the first applicant. Following a hearing, the judge found on the evidence, and with reference to domestic case-law (the House of Lords’ decision in Swain v. the Law Society), that the FSB had only agreed to gave the first applicant the benefit of an insurance policy to guard against the expenses incurred as a result of an in-depth tax investigation. The first applicant’s claim to be indemnified therefore lay against the insurer, and not with the FSB. The judge however expressed the view that the FSB could have clarified better in its advertising what the scope of its obligation was in this area. The first applicant appealed. On 4 October 2002, the Court of Appeal dismissed the first applicant’s appeal following a hearing. Having reviewed the documents relied on by the applicant, Lord Justice Laws considered that the first applicant had not made out a case that he had concluded a contract with the FSB under which the FSB would meet without qualification all of the expenses incurred by the first applicant in the course of an in-depth Inland Revenue investigation. In his opinion, the words used by the FSB were not inconsistent with an intention to provide insurance services rather than an unqualified indemnity. Furthermore, the provision to the first applicant of insurance documentation at the time he joined the FSB indicated that his membership entailed his access to insurance services. Complaints The first applicant maintains that the domestic courts distorted the facts of the case, reached conclusions in the absence of evidence, erred on matters of law, diverted the basis of his claim, abused their powers and did not act independently and impartially. He refers, among other things, to the improper manner in which Mr Recorder Moxon-Browne and the Court of Appeal dealt with the issues before them and to the fact that the Recorder took it upon himself to decide who was the correct defendant to the proceedings, even though this issue had already been settled by Judge Overend. The first applicant relies on Article 6 of the Convention to condemn these and other breaches of his right to a fair hearing which he has identified. Under Article 13 of the Convention, the first applicant complains that the Court of Appeal reached its decision by adducing a document which did not exist, thereby abusing its power and acting without authority by assuming there was such a document. The first applicant further relies on Article 14 of the Convention. He maintains, among other things, that he was discriminated against in his access to justice on account of his status as a litigant in person. The first applicant finally maintains that the abuse of power on the part of the Court of Appeal amounts to a breach of Article 17 of the Convention. | 0 |
dev | 001-111343 | ENG | SWE | ADMISSIBILITY | 2,012 | OSORIO v. SWEDEN | 4 | Inadmissible | Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger | The applicant, Mr Omar Osorio, is a Chilean national who was born in Tocopilla, Chile on 22 November 1970 and lives in Södertälje. He was represented before the Court by Mr K. Potthoff, from Växjö. The Swedish Government (“the Government”) were represented by their Agent, Ms G. Isaksson, of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant came to Sweden as a refugee in 1979. In 1998, after a routine operation, he started to suffer from severe pain. This pain was treated by strong pain killers which allegedly caused him to suffer brain damage. He was able to recover and to work in a boat factory for a while in 1998 and 1999. In 2000, however, he again became unable to work and started to receive sickness allowance (sjukpenning), which was later transformed into an early retirement pension (förtidspension) as of 1 January 2001. The applicant applied for life annuity (livränta) from the Social Insurance Office (försäkringskassan) in Stockholm, claiming that his injuries had been caused by solvents to which he was exposed while working in the boat factory. On 29 January 2003 the Social Insurance Office decided to refuse the application for life annuity as the applicant’s brain damage could not be considered a work-related accident or a condition caused by the working environment. According to the medical opinion given on 6 November 2002 by Dr P.L., the Social Insurance Office’s own medical doctor (försäkringsläkare), it was not probable that the applicant’s brain damage was connected to his work. By letter dated 23 March 2003 the applicant appealed to the County Administrative Court (länsrätten) in Stockholm, claiming that he had a right to life annuity. He stated that he had been more sensitive to chemicals due to his prior brain damage in 1998. The applicant submitted a document by D, a professor in procedural law, entitled “Statement concerning the evidentiary requirements in work injury cases in general, with the case of [M.B.] as an example”. The applicant reserved the right to request that D be heard as an expert witness. He submitted written evidence, mainly articles from medical journals, and requested that this evidence be sent to D for comments. On 3 March 2004 the County Administrative Court, which interpreted the applicant’s request as a request for a written expert opinion, rejected the applicant’s request to obtain a statement from D. The applicant was provided with the opportunity to complete his appeal within two weeks. On 6 December 2005 the applicant requested that an oral hearing be held without giving any reasons for his request. The County Administrative Court offered the applicant the opportunity to finalise his submissions and to submit all evidence he wished to invoke. The applicant was also informed that the court would then decide on his request for an oral hearing. Furthermore, the applicant was informed about the applicable legislation concerning oral hearings and was asked to indicate whether he maintained his request. On 2 January 2006 the applicant submitted his evidence to the County Administrative Court. He did not invoke any oral evidence or comments on the issue of an oral hearing. On 24 May 2006 the County Administrative Court rejected the applicant’s request to obtain a written opinion from D., the request for an oral hearing and the applicant’s appeal. After having examined several medical certificates and opinions, included in the applicant’s case file and submitted by both parties, the court found that the medical evidence did not show that the applicant was more sensitive to solvents or that such shortterm work with solvents would have exposed him to brain damage such as he had suffered. His condition could thus not be considered as a work-related condition and he had therefore no right to life annuity. On 1 August 2006 the applicant appealed to the Administrative Court of Appeal (kammarrätten) in Stockholm and maintained what he had claimed before the first instance court. Additionally, he stated that he had invoked oral evidence before the first instance court and claimed that the rejection of his request for an oral hearing constituted a violation of his rights under the Convention. Furthermore, the applicant requested an oral hearing to be held. On 7 August 2006 the applicant was offered the opportunity to complete his appeal. He was reminded that the issue of whether to grant leave to appeal could be decided even if he did not complete his appeal. He was also informed that his request concerning an oral hearing would not be determined before the issue of leave to appeal. In a submission of 25 August 2006 the applicant confirmed that he did not request an oral hearing on the question of leave to appeal. He stated that the reasons for his request for an oral hearing concerning the factual issues were complex, that an oral hearing was not unnecessary and that there was no reason not to hold an oral hearing. On 3 October 2006 the Administrative Court of Appeal refused leave to appeal. By letter dated 2 December 2006 the applicant appealed to the Supreme Administrative Court (Regeringsrätten), reiterating the grounds of appeal already presented before the lower instances, claiming compensation and requesting the court to hold an oral hearing. The applicant stated that he had been refused an oral hearing before the lower courts and that the County Administrative Court had also rejected his request to hear an expert witness. He maintained that his case was complex and important and that, for these reasons, he had a right to an oral hearing. On 23 January 2007 the applicant was informed that the Supreme Administrative Court would, first of all, examine whether leave to appeal should be granted and that it had understood his request for an oral hearing to be related to the substance of the case. The applicant was given the opportunity to comment on both issues and to complete his appeal. On 7 May 2007 the applicant requested once again that an oral hearing be held without clarifying whether it concerned the issue of leave to appeal or the substance of the case. On 12 December 2007 the Supreme Administrative Court rejected the applicant’s request for an oral hearing regarding the issue of leave to appeal and gave the applicant the opportunity to finalise his submissions. On 9 January 2009 the applicant completed his appeal and requested that an oral hearing be held with reference to his previous requests. On 20 February 2009 the Supreme Administrative Court refused leave to appeal. Domestic provisions of relevance in the present case are found in the 1976 Work Injury Insurance Act (Lagen om arbetsskadeförsäkring, SFS 1976:380) and the Administrative Court Procedure Act (Förvaltnings-processlagen, SFS 1971:291, “the 1971 Act”). The 1976 Work Injury Insurance Act has been incorporated into Chapters 39 and 41 of the Social Insurance Code as of 1 January 2011. According to Chapter 2, section 1, of the 1976 Work Injury Insurance Act, the term “work injury” mainly refers to injuries resulting from accidents or other harmful factors at a person’s workplace. Under the Act, all gainfully employed persons working in Sweden are insured against work injuries. For an injury to qualify as a work injury, a causal link must be established between the accident or harmful factor in the workplace and the insured person’s health problems. What is meant by “harmful factor” is the influence of a factor that is very likely to cause an injury or illness such as that incurred by the insured person. At the relevant time, it had to be “highly probable” that a certain factor in the working environment could cause a person’s injuries and, thereby, be considered to constitute a harmful factor. The view that a certain factor is very likely to cause an injury has to be relatively generally accepted (Govt. Bill 1992/93:30, pp. 20 and 36). This is the case where substantial knowledge exists, within medical or other science, that a certain factor has such harmful effect. If there is a lack of such support, such as, for example, profound differences in expert opinion, this requirement cannot be considered fulfilled. Thus, the opinion of a specific researcher or medical doctor should not constitute a sufficient basis for a positive decision on the issue of harmful effect. Section 9 of the 1971 Act, as in force at the relevant time, was worded as follows: “The procedure shall be in writing. Where it may be assumed to be advantageous for the investigation or promote the expeditious determination of the case, the processing may include an oral hearing regarding certain issues. In the Administrative Court of Appeal and the County Administrative Court an oral hearing shall be held if requested by an individual party to the proceedings, unless it is unnecessary or there are particular reasons against holding a hearing.” In a case concerning social insurance, leave to appeal was required for the Administrative Court of Appeal to consider an appeal against a decision enacted by a County Administrative Court. Leave to appeal was to be granted if it was of importance for the guidance of the application of law that a superior court consider the appeal, if reason existed for amendment of the County Administrative Court’s conclusion, or if there were otherwise extraordinary reasons to entertain the appeal. A decision of the Administrative Court of Appeal not to grant leave to appeal could be appealed against to the Supreme Administrative Court. | 0 |
dev | 001-85833 | ENG | RUS | CHAMBER | 2,008 | CASE OF WASSERMAN v. RUSSIA (No. 2) | 3 | Preliminary objection dismissed (ratione materiae);Violation of Art. 6-1;Violation of P1-1;Violation of Art. 13;Pecuniary and non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni | 5. The applicant was born in 1926 and lives in Ashdod, Israel. 6. On 9 January 1998 the applicant arrived in Russia. On crossing the border, he omitted to report a certain sum of cash in his customs declaration and the customs office seized his money. The applicant appealed to a court. 7. On 30 July 1999 the Khostinskiy District Court of Sochi set aside the seizure order and ordered the Treasury to repay the applicant the equivalent in Russian roubles of the 1,600 United States dollars (USD) seized. On 9 September 1999 the Krasnodar Regional Court upheld that judgment on appeal. 8. At the applicant's request the District Court amended the operative part of the judgment on 15 February 2001 and ordered the Treasury to pay USD 1,600 into the applicant's bank account in Israel. 9. On 10 April 2001 the District Court issued a writ of execution and sent it to the bailiffs' service in Moscow. On 30 October 2001 the Moscow bailiffs sent the writ back to Sochi, for reasons which are unclear. 10. After the judgment in his favour had remained unenforced for more than a year, the applicant complained to the Court (application no. 15021/02). 11. On 18 November 2004 the Court delivered judgment in the above case. It noted the Government's acknowledgment that the writ of execution had been lost in the process of being transferred from the Moscow bailiffs to the Sochi office. However, in the Court's view, the logistical difficulties experienced by the State enforcement services could not serve as an excuse for not honouring a judgment debt; the applicant's complaints concerning the non-enforcement of the judgment should have prompted the competent authorities to investigate the matter and to ensure that the enforcement proceedings were brought to a successful conclusion. The Court found a violation of the applicant's “right to a court” under Article 6 § 1 of the Convention and of his right to peaceful enjoyment of his possessions under Article 1 of Protocol No. 1 (see Wasserman v. Russia, no. 15021/02, §§ 3840 and 43-45, 18 November 2004). 12. The Court granted the applicant's claim for the interest on the judgment debt. It rejected, however, the claim for the outstanding amount on the ground that “the Government's obligation to enforce the judgment at issue ha[d] not been yet extinguished and the applicant [was] still entitled to recover this amount in the domestic enforcement proceedings” (see Wasserman, cited above, § 49). It also made awards in respect of nonpecuniary damage and costs and expenses (§§ 50-53). 13. In the meantime, on 17 February 2004, a duplicate of the writ was issued and presented to the Ministry of Finance for enforcement. 14. In its observations on the applicant's claim (see below), the Ministry of Finance mentioned that on 21 June 2004 payment of the outstanding amount into the applicant's account in Israel had been authorised. 15. By letter of 17 May 2005 the Ministry of Finance informed the applicant that it would not enforce the judgment because the District Court's decision of 15 February 2001 had misspelled one letter in his patronymic name and because the writ of execution had incorrectly designated the debtor as the “Chief State Directorate of the Federal Treasury” (the correct name of the entity does not contain the word “State”). 16. By decision of 5 October 2005 the District Court corrected the spelling mistake in the decision of 15 February 2001. 17. On 3 October 2006 the sum of USD 1,569 was credited to the applicant's bank account in Israel. An amount of USD 31 was withheld by the State-owned bank Vneshtorgbank as commission for the wire transfer. 18. On 12 May 2003 the applicant brought a civil claim against the Moscow bailiffs, the Ministry of Justice and the Ministry of Finance. He sought compensation for pecuniary and non-pecuniary damage allegedly incurred as a result of the unlawful actions of the bailiffs and the continued failure to enforce the judgment. 19. On 25 August 2004 the Zamoskvoretskiy District Court of Moscow found that the Moscow bailiffs had acted unlawfully in that they had never instituted enforcement proceedings and had had no legal grounds for sending the writ back to Sochi. However, it refused the claim for damages, finding that the applicant had not incurred any pecuniary damage as a result of the non-enforcement of the judgment of 30 July 1999. As to nonpecuniary damage, Russian law did not provide for compensation in situations such as the applicant's. 20. On 30 March 2005 the Moscow City Court dismissed an appeal by the applicant, reproducing verbatim the text of the District Court's judgment. 21. The applicant lodged an application for supervisory review. On 1 June 2006 the Presidium of the Moscow City Court granted his application, quashed the judgments of 25 August 2004 and 30 March 2005 in part and remitted the claim for damages for fresh examination by the District Court. 22. Between 25 September 2006 and 22 February 2007 the District Court listed nine hearings which were subsequently adjourned for various reasons. 23. On 22 February 2007 the Zamoskvoretskiy District Court issued a new judgment. It rejected the applicant's claim in respect of pecuniary damage on the ground that no admissible evidence had been produced in support of it. It accepted the claim for non-pecuniary damage in part, finding as follows: “...the court takes into account the fact that the Zamoskvoretskiy District Court judgment of 25 August 2004 found the [Moscow] bailiffs' actions to have been unlawful, and the fact that enforcement of the judgment was protracted and did not actually occur until 3 October 2006. This was not disputed by the parties. The court therefore finds that there has been a violation of the claimant's right to a fair hearing within a reasonable time on account of an unlawful delay in the enforcement of a judicial decision, which implies that just compensation must be paid to the individual who sustained damage as a result. and the physical and mental suffering caused to the claimant on account of the belated enforcement of the judgment, and also the fact that the claimant is a pensioner and [has the title] 'Honoured Coach of Russia', the court considers it necessary to award him 8,000 Russian roubles as compensation for non-pecuniary damage, to be paid by the Ministry of Finance. The court finds no grounds to award a larger amount of compensation as the claimant did not produce evidence showing that the defendants had caused him physical or mental suffering of an irreversible nature...” The District Court further rejected the applicant's claim for legal costs and expenses. 24. On 7 August 2007 the Moscow City Court upheld that judgment on appeal, reproducing verbatim the District Court's reasoning. 25. A court may hold the tortfeasor liable for non-pecuniary damage caused to an individual by actions impairing his or her personal nonproperty rights or affecting other intangible assets belonging to him or her (Articles 151 and 1099 § 1 of the Civil Code). 26. Compensation for non-pecuniary damage sustained as a result of the infringement of an individual's property rights is recoverable only in the cases provided for by law (Article 1099 § 2 of the Civil Code). 27. Compensation for non-pecuniary damage is payable irrespective of the tortfeasor's fault if damage was caused to an individual's life or health as a result of unlawful criminal prosecution or dissemination of untrue information, and in the other cases provided for by law (Article 1100 of the Civil Code). 28. In ruling no. 1-P of 25 January 2001, the Constitutional Court found that Article 1070 § 2 of the Civil Code was compatible with the Constitution in so far as it made State liability for damage caused by the administration of justice subject to special conditions. Nevertheless, it stated explicitly that the term “administration of justice” did not cover the judicial proceedings in their entirety but extended only to judicial acts touching upon the merits of a case. Other judicial acts – mainly of a procedural nature – fell outside the scope of the notion of “administration of justice”. State liability for the damage caused by such procedural acts or failures to act, such as a breach of the reasonable-time requirement in relation to court proceedings, could arise even in the absence of a final criminal conviction against a judge, if the fault of the judge had been established in civil proceedings. The Constitutional Court emphasised, however, that the constitutional right to compensation from the State for the damage caused should not be bound up with the individual fault of the judge concerned. An individual should be able to obtain compensation for any damage incurred as a result of the violation by a court of his or her right to a fair trial within the meaning of Article 6 of the Convention. The Constitutional Court held that Parliament should legislate on the grounds for and procedure governing State compensation for damage caused by unlawful acts or failures to act of a court or a judge, and should determine territorial and subject-matter jurisdiction in respect of such claims. | 1 |
dev | 001-78562 | ENG | POL | CHAMBER | 2,006 | CASE OF DĄBROWSKI v. POLAND | 4 | Violation of Art. 10;Non-pecuniary damage - financial award;Pecuniary damage - financial award;Costs and expenses - claim dismissed | Nicolas Bratza | 5. The applicant, who is a journalist, was born in 1952 and lives in Lubajny, Poland. 6. On 15 September 1998 the applicant published in a daily newspaper, Dziennik Pojezierza, the following article: “Turtle speed of the Ostróda judiciary. The governor just a witness. Tomorrow, on Wednesday 16 September, at 9 o'clock another hearing will begin before the Ostróda District Court in a criminal case against Tadeusz L., deputy mayor of Ostróda and Lech K., legal adviser. The bill of indictment includes charges against them that three years ago, on 28 September 1995, they carried out a burglary in the office of TVK Vectra, a private company which legally worked and leased the office from the Housing Co-operative Jedność. The case has already been pending for two and a half years. For several months, the court has been unable to take evidence from governor Zbigniew Babalski, at that time mayor of Ostróda, the most important witness. On numerous occasions, he was unsuccessfully summoned before Themis. Babalski was sending excuses to the court or did not attend hearings without any explanation. For the first time, and so far the only time, the governor appeared before the court on 28 May. However, he could not be heard because the accused Tadeusz L. was absent, not for the first time, as he was quietly present at that time in the town hall situated ... 100 metres away. It was – according to the observers of the case – another instance of dodging the proceedings in order to delay the date of delivery of a judgment. Protracting the case leads to the likelihood that the case will be discontinued or the accused will be acquitted. A judgment convicting Tadeusz L. would mean an interruption of his very lucrative career in local government. In addition, it is a very annoying and dangerous case for governor Zbigniew Babalski. The evidence taken so far from witnesses clearly shows that the burglary in Vectra took place with his knowledge and approval. On the day of the attempt to take over the TV cable operator he telephoned police and asked for 'assistance with eviction' – misleading the law enforcement officers. The day after the burglary he informed the people of Ostróda – through the TV cable operator he had taken over – that the action was lawful and served the interests of the TV audience. It is not known whether the court will ask the governor to explain these disturbing facts. It is also not known whether the court will finally decide to clarify the role played in the burglary by Grzegorz Kierozalski, at that time the town secretary and today the governor's chef de cabinet. It appears from the evidence given by Henryk K., a locksmith employed by the Municipal Housing Administration, that Kierozalski instructed him to take tools and to force open a door to the Vectra's office. In the view of many former Ostróda councillors, the list of accused in this case is too short by at least half. However, it is not known whether governor Babalski will allow the court to finish this unusual case.” 7. On 17 September 1998 the applicant published in the same daily the following article: “A gypsy did it, but they are going to hang the blacksmith. A case concerning the burglary in Vectra approaches the end. Yesterday, on 16 September, the Ostróda District Court finished the taking of evidence in the case concerning the burglary in the office of the Vectra Cable Television in which the accused are Tadeusz L., deputy mayor of Ostróda and Lech K., legal adviser. The proceedings lasted two and a half years. A judgment will be delivered on 22 September. The Ostróda court, after several months of waiting for the busy governor of Olsztyn, Zbigniew Babalski, was able at last to take evidence from him. The main witness in the case was hiding behind his lack of memory and the fact that on 28 September 1995, the day of the burglary, he had been for the whole day in Olsztyn attending a meeting with governor Janusz Lorenz. He called a local government team – which forced open a door and used violence against the employees of Vectra – an inventory commission established by the municipal management. Babalski did not remember who exactly was entrusted with that task. The court did not try to clarify the role played in this criminal event by the then mayor, Zbigniew Babalski. It did not ask him why he had publicly, on television, supported an attempt to take over the television operator or why he had asked the police to 'assist in the eviction of Vectra'. In the view of many Ostróda councillors Babalski knew about the burglary and agreed to it. This is also shown by the fact that he did not punish the burglars – his subordinates – but systematically promoted them in local government. The accused Tadeusz L. filed three additional requests, which would have delayed the proceedings. The court dismissed them. Counsel for Vectra suggested that Tadeusz L. had broken into the offices of the cable operator to take revenge for the termination of a contract allowing him to provide television equipment maintenance services. Tadeusz L. claimed that Vectra was taking revenge because he had discovered its 'swindles'. It is widely felt that only 'small fry' appeared before the Ostróda court. The real instigators of the burglary remain unpunished.” 8. On 23 September 1998 the applicant published the following article: “The end of a career of a mayor-burglar? The end of Ostróda series. Yesterday, on 22 September, the Ostróda District Court, after three years of considering a case concerning a burglary in [the premises of] the Vectra Cable Television, gave judgment. [The court] found Tadeusz L., deputy mayor and Lech K., legal adviser, guilty of an attempt by local government officials to take over a private company – unprecedented in this country. The criminal proceedings against both accused were conditionally discontinued for a year. The court sentenced each of them to a fine of 150 zlotys, which will go to a nursing home in Szyldak. They were each also ordered to pay a 50 zlotys fee and 50 percent of the costs of the proceedings. Counsel for auxiliary prosecutor Mirosław Gąsiewski, who represented Vectra, declared that he would appeal, as he considered that the sentence was blatantly lenient. In his oral statement made before the judgment, he said that on 28 September 1995 'the municipal authorities had lynched Vectra'. In doing that, they showed 'a lack of basic legal culture' and 'by using bandit tactics' they wanted to resolve a dispute with a cable company. People like Tadeusz L. – underlined the counsel – should not hold prominent posts in the town hall. The action of both accused deprived Vectra of the ability to operate a network for a period of three months, which led to a loss of at least 1.5 billion old zlotys. The advocate of the deputy mayor of Ostróda said that the list of accused was too short. He suggested that it should include also Zbigniew Babalski, mayor at that time and today governor of Olsztyn, and Grzegorz Kierozalski, a former town secretary and today the governor's chef de cabinet, since a burglary in Vectra had been committed with their knowledge and approval. He defended his client by claiming that he had only wanted to make an inventory in Vectra. The accused Lech K. asked to be acquitted. Tadeusz L. in his last statement attacked the counsel of Vectra, claiming that he had been so active because he had expected from that company 'a financial bonus in the future'. Tadeusz L. stands in the next elections to the municipal council. If the Olsztyn Regional Court upholds the sentence or increases it, the deputy mayor of Ostróda – even if he wins a seat – will lose it by virtue of the law. That will mean the end of his eightyear long, stormy and lucrative career in local government.” 9. On unspecified date Tadeusz Lubaczewski lodged with the Olsztyn District Court a private bill of indictment. He charged the applicant with defamation. In particular, Tadeusz Lubaczewski submitted that in the articles published on 15 and 23 September 1998 the applicant made the following “untrue allegations”: “1. called him 'a mayor-burglar'; 2. described his career in local government as 'stormy' and 'very lucrative'; 3. stated that 'the action of both accused deprived Vectra of the ability to operate a network for a period of three months, which led to a loss of at least 1.5 billion old zlotys'; 4. considered that '[the court] found deputy mayor Tadeusz L., guilty of an attempt by local government officials to take over a private company – unprecedented in this country'; and 5. disseminated untrue information that he 'was absent, not for the first time, as he was quietly present at that time in the town hall'.” 10. The applicant was tried by the Olsztyn District Court between 29 May and 7 November 2000. On 7 November 2000 he was convicted of defamation under Article 212 § 1 of the Criminal Code. The criminal proceedings against him were then conditionally discontinued and he was ordered to pay 1,000 zlotys to a charity. Furthermore, the applicant was ordered to reimburse the prosecutor 300 zlotys for the costs of the proceedings. The trial court gave, in particular, the following reasons for its decision: “(...) the accused did not show in a convincing manner that the allegations made by him were true. Making a reference to 'a mayor-burglar' in the title of the article published on 23.09.1998 could be ambiguous and susceptible to various interpretations only because there was a question mark at the end of the title [sic]. In the court's view that [question] mark refers to the whole title and not only, as claimed by the accused, the words 'the end of career' because coming to such a conclusion would be unjustified [sic]. However, the court is of the view that although in the light of the court proceedings before the Ostróda court the description of T. Lubaczewski's career in local government as 'stormy' [was justified], the use of the adjective 'lucrative' with respect to that career cannot be considered as true. At the time of publication of that article, the private prosecutor was a mayor but his remuneration did not justify the use by the author of the article of such a term. In view of the evidence (...) one cannot consider as truthful the accused's claims that T. Lubaszewski was receiving a kind of special profit [.The] amount of remuneration of a deputy mayor and the amount of councillors' allowances is usually decided by the local government authorities chosen in democratic elections and even against the background of the generally bad economic situation of the majority of Ostróda population cannot be considered as exceptionally lucrative. Moreover, in view of the declaration made by T. Lubaczewski it cannot be accepted that [his] participation in two foreign trips during his work in local government was a sort of special bonus. With respect to the third charge, the accused's defence that it was in fact a quotation from counsel for TVK Vectra is bound to give rise to doubts in view of the fact that it was not put in quotation marks, especially as the other statements made by that counsel were clearly put in such marks. In addition, the accused was unable to prove the losses of the cable television given in that paragraph by pointing to or submitting a document containing the calculation of those losses. It also cannot be accepted as entirely true 'that [the court] found deputy mayor Tadeusz L., guilty of an attempt by local government officials to take over a private company – unprecedented in this country'. Firstly, because at the time of delivery of a judgment the statement was not legally valid and the use of such a term could have been misleading and also because a conditional discontinuation of the proceedings is not identical to the conviction of an accused, but this is precisely how this part of the article could be understood. As far as the last charge is concerned, it should be underlined that the accused also did not prove [his] allegation that at the time when a hearing was held on 28.05.1998 before the Ostróda court T. Lubaszewski was present in the town hall. (...) The evidence shows that the private prosecutor on that day was in Elbląg on a business trip. (...) Even if one accepts that the accused really saw [T. Lubaszewski's] car in the early morning and subsequently [T. Lubaszewski] himself, approximately one hour after the end of the hearing, this did not entitle the author of the article to use the terms contained in the article. In conclusion, it should be observed that, in the view of the court, the evidence did not give grounds for accepting that the allegations made by the accused were true, especially as the legislator added another condition for accepting the impunity of the offence of defamation, namely that (...) the allegation was made to defend a socially justified interest. After analysing the degree of guilt and the danger to society of a continuous act committed by the accused, the court concluded that it could be described as insignificant. This conclusion was obviously influenced by the clearly visible antagonism between the accused and the private prosecutor. The parties have been and are involved in at least several defamation cases, in which they play different roles. Those cases arise from the different political opinions of the parties and it is regrettable that they chose a courtroom as their arena for political disputes. Contrary to the private prosecutor's claim, one cannot find motives of private vengeance in the press articles containing the defamatory allegations. The accused undoubtedly acted within the framework of acceptable press criticism [. H]owever, in the court's opinion he overstepped its limits and did not convincingly display journalistic diligence as he made allegations which were not properly verified. Furthermore, taking into account the fact that the accused has no criminal record and his character and personal circumstances, the court has concluded that the measure of discontinuation of the criminal proceedings should be used in respect of him and his acts. The court is of the view that the fact of finding that the accused has committed the act with which he was charged will in itself be first of all a lesson for him for the future. In order to increase the educational effects of that measure, the court has ordered the accused to make a payment to a charity in an amount proportional to his financial standing. (...)” 11. The applicant appealed against his conviction but on 18 October 2001 the Olsztyn Regional Court dismissed his appeal. 12. Article 212 of the 1997 Criminal Code reads as follows: “§ 1. Anyone who imputes to another person, a group of persons, an institution, a legal person or an organisation without legal personality, such behaviour or characteristics, as may lower this person, group or entity in the public opinion or undermine public confidence in their capacity necessary for a certain position, occupation or type of activity, shall be liable to a fine, a restriction of liberty or imprisonment not exceeding 1 year. § 2. If the perpetrator commits the act described in paragraph 1 through a means of mass communication, he shall be liable to a fine, restriction of liberty or imprisonment not exceeding 2 years.” § 4. The prosecution takes place under a private bill of indictment.” 13. Article 213 § 2 reads in so far as relevant: “Whoever raises or publicises a true allegation in defence of a justifiable public interest shall be deemed not to have committed the offence specified in Article 212 §§ 1 or 2.” 14. Articles 66 et seq. of the 1997 Criminal Code concern the conditional discontinuation of criminal proceedings. Article 66 reads, in so far as relevant: “§ 1. The court may conditionally discontinue the criminal proceedings if the guilt and social danger of the act are not significant and the circumstances of its commission do not raise doubts, and that the attitude of the perpetrator not previously punished for an intentional offence, his personal characteristics and his way of life to date provide reasonable grounds for the assumption that, even in the event of the discontinuance of the proceedings, he will observe the legal order and in particular will not commit an offence.” 15. Article 67 provides, in so far as relevant: “§ 1. The conditional discontinuance shall apply for a probationary term between one and two years, which shall run from the date the judgment becomes valid and final. § 3. In discontinuing conditionally the criminal proceedings, the court shall require the perpetrator to redress in whole or in part the damage...” 16. Article 68 provides: “§ 1. The court shall resume the criminal proceedings, if the perpetrator has during the probation period committed an intentional offence, for which he has been finally convicted. § 2. The court may resume the criminal proceedings if the perpetrator during the probation period flagrantly breaches the legal order, and in particular if he committed an offence other than that specified in § 1, evades supervision, does not perform the obligations or penal measure imposed or if he does not fulfil the settlement concluded with the injured person. § 3. The court may resume the criminal proceedings if, after the decision on the conditional discontinuance was given but before it became final, the perpetrator flagrantly breached the legal order, and in particular if he committed an offence within that time. § 4. The criminal proceedings conditionally discontinued may not be resumed any later than 6 months after the expiration of the probation period.” | 1 |
dev | 001-59160 | ENG | NLD | CHAMBER | 2,000 | CASE OF CILIZ v. THE NETHERLANDS | 1 | Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award | Elisabeth Palm | 8. The applicant came to the Netherlands on 31 March 1988 where he married a Turkish woman on 29 December 1988. Upon his request he was granted a residence permit by the head of the Utrecht police on 14 February 1989 which enabled him to live with his spouse and to work in the Netherlands. This residence permit was valid for one year and, on 5 April 1990, the applicant was given a document showing that as a result of his marriage he was allowed to reside in the Netherlands indefinitely. 9. On 27 August 1990, a son, Kürsad, was born to the applicant and his wife. 10. The applicant and his wife separated in November 1991 and divorce proceedings were initiated. As the applicant's right to reside in the Netherlands indefinitely had been dependent on his being married and cohabiting with his spouse, he lost this right ex jure from the moment of separation. On 24 January 1992, the applicant applied for and was granted an independent residence permit in order to work in the Netherlands pursuant to the relevant provisions of the Aliens Circular (Vreemdelingencirculaire; see paragraphs 40-42 below). This permit was valid for one year. 11. In the period immediately following the separation the applicant made no attempt to see Kürsad, but at a later stage he requested the Utrecht Regional Court (Arrondissementsrechtbank) to establish an arrangement concerning parental access (omgangsregeling – “formal access arrangement”). The Regional Court requested the Child Care and Protection Board (Raad voor de Kinderbescherming) to investigate the feasibility of such an arrangement. 12. In its report of 18 January 1993, the Child Care and Protection Board stated that after an initial refusal to cooperate in a formal access arrangement, the mother had agreed for the applicant to meet Kürsad several times on a provisional basis at the maternal grandparents' house but that the applicant had failed to contact the Board. The Board concluded that the applicant's situation had not become sufficiently clear and for this reason the Board found that a formal access arrangement would not be appropriate. 13. The applicant requested a prolongation of his residence permit in order to work in the Netherlands from the head of the Utrecht police on 11 January 1993. At this time the applicant was in receipt of unemployment benefits and for this reason his request was rejected on 3 February 1993. As regards Article 8 of the Convention, the head of the Utrecht police considered, inter alia, that since it appeared that the applicant had no regular contacts with his son there was no family life between them within the meaning of this provision. In this respect it was held that the applicant's claim that it was not his fault that no regular contacts took place could not be taken into account, since regard could only be had to the factual situation. Furthermore, even assuming there was family life between the applicant and his son, an interference with the right to respect for this life would, according to the head of the Utrecht police, be justified under paragraph 2 of Article 8. 14. The applicant requested the State Secretary for Justice (Staatssecretaris voor Justitie) on 22 April 1993 to review (herzien) the decision of the head of the Utrecht police. He submitted that he was in the process of obtaining a permanent employment contract. He conceded that at present the contacts with Kürsad had not yet been regularised but that the Regional Court of Utrecht was expected to examine and to grant a request for a formal access arrangement shortly afterwards. 15. The applicant's marriage was officially dissolved on 17 March 1994. 16. On 15 July 1994, the applicant was heard by the Advisory Commission for Aliens' Affairs (Adviescommissie voor Vreemdelingenzaken). The applicant stated that since February 1993 he had visited Kürsad between one and three times a week. 17. The Advisory Commission proposed to the State Secretary for Justice that the applicant's request for revision be rejected. Even though it considered that there was family life between the applicant and Kürsad and that the refusal to grant the applicant continued residence in the Netherlands would constitute an interference with the applicant's right to respect for his family life, the Advisory Commission held that this interference was justified for the protection of the economic well-being of the country. In this respect the Advisory Commission considered that the applicant was in receipt of unemployment benefits. Although it might be true that these benefits would be withdrawn in view of the applicant's contract as a stand-by employee in the clothing industry, the Advisory Commission did not regard these activities as serving an essential national interest since it had appeared that on the Netherlands labour market other people, having priority over the applicant, were available for this kind of work. 18. The Advisory Commission further took into account that the applicant had only lived with Kürsad for eighteen months, that he saw Kürsad irregularly and briefly, and that he contributed irregularly to the costs of Kürsad's upbringing and education. 19. In line with the opinion of the Advisory Commission, the State Secretary for Justice rejected the applicant's request for revision on 6 October 1994. 20. The applicant filed an appeal against the decision of 6 October 1994 with the Aliens' Division (Vreemdelingenkamer) of The Hague Regional Court sitting in Amsterdam (nevenzittingsplaats Amsterdam) on 31 October 1994. He submitted, inter alia, that contrary to what the Advisory Commission had held, he had an intense relationship with Kürsad. 21. Meanwhile, following a hearing on 25 November 1994, the Utrecht Regional Court on 24 January 1995 appointed the applicant's former wife as guardian (voogdes) and the applicant as auxiliary guardian (toeziend voogd) of Kürsad. It further ordered that as a contribution to the costs of the maintenance and education of Kürsad, the applicant should pay to the mother any child benefits he might receive under the statutory regulations. In view of the circumstances and the relationship between the parties the Regional Court found it inappropriate, however, to lay down in a formal access arrangement the varying contacts which the applicant was having with Kürsad at that time. The Regional Court assumed in this respect that the contacts which the applicant had had and was still having with Kürsad would be continued in the future; it added that, as part of the upbringing of the child, it was incumbent on the mother to ensure that these contacts between father and child took place. 22. The applicant filed an appeal with the Amsterdam Court of Appeal (Gerechtshof) against the decision of the Utrecht Regional Court not to establish a formal access arrangement. A hearing took place on 19 April 1995, during which the applicant's former wife stated that she was not willing to cooperate in a formal access arrangement, since she felt that the applicant only wished to have such an arrangement established in order to obtain a right to reside in the Netherlands. Furthermore, she did not believe that the applicant was capable of maintaining regular contacts with Kürsad and submitted that irregular contacts would not be conducive to the boy's well-being. 23. On 10 May 1995, a hearing took place before the Hague Regional Court sitting in Amsterdam on the appeal filed by the applicant against the rejection of his request for revision of the decision not to prolong his residence permit. The Regional Court rejected the appeal by decision of 24 May 1995. It held that the refusal to grant the applicant continued residence in the Netherlands constituted a justified interference with his family life. The Regional Court considered in this respect, inter alia, that the Utrecht Regional Court had rejected the applicant's request to establish a formal access arrangement. It found, furthermore, that the contacts between the applicant and Kürsad were irregular and short and that the applicant did not contribute regularly to the costs of his son's maintenance and education. The Regional Court further held that the economic well-being of the country should be taken into account as well. It noted that the applicant had submitted an employment contract from which it appeared that his probationary period had not yet been concluded and that, in any event, there was a sufficient amount of work force with priority over the applicant available on the Netherlands labour market for the kind of work the applicant was employed to do. 24. When this decision was sent to the applicant, that is, on 26 June 1995, the applicant's probationary period had come to an end and he was in possession of a contract of employment for an indefinite period. 25. As regards the applicant's request for the establishment of a formal access arrangement, the Court of Appeal decided in an interlocutory judgment of 1 June 1995 to adjourn these proceedings. The Court found that at the present time there was insufficient reason to deny the applicant right of access to his son. As it was not clear to what extent the applicant was genuinely interested in Kürsad the Court of Appeal requested the Child Care and Protection Board to organise a number of supervised trial meetings between the applicant and Kürsad in order to have the applicant's motives clarified. 26. On 19 September 1995, the applicant was informed that the Court of Appeal had further adjourned the proceedings until 3 December 1995 in view of the heavy workload of the Child Care and Protection Board. By letter of 16 October 1995, the applicant asked the Court of Appeal whether a different organisation might be appointed to organise the trial meetings as he wished to see Kürsad and a further delay would be detrimental to both the applicant and the child. 27. On 31 October 1995, the applicant was placed in detention with a view to his expulsion (vreemdelingenbewaring). 28. On 2 November 1995, the applicant again requested a residence permit in order to work in the Netherlands, to be able to be with his child and for reasons of a compelling humanitarian nature. On this occasion he told the head of police that as of February 1995 he had stopped contributing financially to his son's maintenance since his former wife no longer allowed him to see Kürsad. 29. The first trial meeting between the applicant and Kürsad, organised by the Child Care and Protection Board, took place on 3 November 1995 at the offices of this organisation. Since the applicant was still in detention, he was accompanied by two police officers who observed the meeting between the applicant and Kürsad from a different room. 30. On 7 November 1995, the applicant's representative contacted the officer of the Child Care and Protection Board who had also been present at the meeting between the applicant and his son. In the opinion of this officer, the meeting had gone well given the circumstances under which it had taken place. Although father and son initially had had to re-accustom themselves to being together, it had been clear that Kürsad knew his father and was familiar with him. After the meeting Kürsad had spontaneously gone to the window to wave to the applicant. The officer submitted as her opinion that another trial meeting should be organised by the Board, perhaps in the presence of a psychologist, following which the possibility of a supervised access arrangement should be considered. 31. The applicant's request of 2 November 1995 for a residence permit was rejected by the State Secretary for Justice on 6 November 1995. The State Secretary held that no relevant new facts had been adduced by the applicant. On the basis of the information submitted by the police officers who had observed the meeting between the applicant and Kürsad on 3 November 1995, the State Secretary considered furthermore that it had not appeared that the relationship between the applicant and his son at the present time was meaningful, mutual or anything more than shallow and neither was it realistically foreseeable that a closer relationship would develop. 32. The applicant filed an objection (bezwaar) against the refusal of a residence permit with the State Secretary for Justice on 6 November 1995. He submitted, inter alia, that proceedings concerning access to his son were still pending before the Amsterdam Court of Appeal and that the trial meeting which had been ordered by the Court of Appeal on 1 June 1995 had only taken place as late as 3 November 1995. Given the fact that at that time the applicant had been in detention, it was unreasonable to expect that this meeting between the applicant and Kürsad would give a true impression of the nature of the relationship between them. The applicant also requested an interim measure from the President of the Hague Regional Court sitting in Amsterdam. 33. The applicant was expelled to Turkey on 8 November 1995. 34. On 7 March 1996 the President of the Regional Court rejected both the objection which the applicant had filed against the refusal of a residence permit and the request for an interim measure. 35. The appeal proceedings concerning the formal access arrangement before the Amsterdam Court of Appeal were adjourned for some time and finally continued in the absence of the applicant who had not been granted an entry visa in order to attend either more trial meetings or the hearing before the Court of Appeal. On 7 May 1998 the Court of Appeal confirmed the decision of the Utrecht Regional Court not to lay down a formal access arrangement (see paragraph 21 above). Having regard to the report of the Child Care and Protection Board of 18 January 1993 (see paragraph 12 above), the fact that Kürsad and his father had not seen each other since November 1995, that it had not been possible for the trial meetings – except for the one of 3 November 1995 – to take place within a reasonable time, the uncertainty as to whether the father would come to the Netherlands and stay there temporarily, the continued doubt as to whether the father was capable of maintaining regular contacts with Kürsad and the continuing tension in respect of the father's uncertain situation, the Court of Appeal considered that such an arrangement would be contrary to the compelling interests of the child. 36. The applicant lodged an appeal on points of law against this decision with the Supreme Court (Hoge Raad) which was rejected on 16 April 1999. 37. Meanwhile, on 5 January 1999, the applicant re-entered the Netherlands with a visa valid for three months. He submitted a new application for a formal access arrangement to the Utrecht Regional Court on 25 January 1999, arguing that there had been a change of circumstances since the decision of the Court of Appeal of 7 May 1998 (see paragraph 35 above) in that he was currently in the Netherlands and had employment. Following a hearing on 23 February 1999, during which Kürsad's mother stated that the boy did not want to see the applicant, the Regional Court requested the Child Care and Protection Board to examine whether it would be in Kürsad's best interests to be brought into contact with his father. 38. On 15 December 1999 the Regional Court rejected the applicant's request for a formal access arrangement and denied him the right of access to his son. It noted the conclusion reached by the Child Care and Protection Board, after another trial meeting had taken place, to the effect that the interests of the child militated against access since Kürsad had displayed strong opposition to the idea and the applicant had not proved able to overcome this opposition. The applicant has lodged an appeal against this decision, which proceedings are currently still pending. 39. Under section 11(2) of the Aliens Act (Vreemdelingenwet) residence permits granted for a specific purpose, such as family reunification or family formation, can be granted subject to restrictions relating to that purpose. If the purpose for which the permit was granted is no longer complied with, the residence permit may be revoked pursuant to section 12(d) of the Aliens Act, and prolongation may be refused pursuant to section 11(5) of the Act on grounds relating to the public interest. An alien who has been granted entry to the Netherlands but is not or is no longer eligible for admission is under an obligation to leave the country pursuant to section 15(d)(2). If he or she does not leave voluntarily, expulsion may follow (section 22). 40. The Netherlands authorities pursue a restrictive immigration policy in view of the high population density. Admission is only granted on the basis of treaty obligations, if the individual's presence serves an essential national interest or if there exist compelling reasons of a humanitarian nature. This policy is laid down, inter alia, in the “Circular on Aliens” (Vreemdelingencirculaire – “the Circular”): a body of directives drawn up and published by the Ministry of Justice. 41. At the relevant period, the requirements for admission of aliens for the purpose of family reunification and family formation, and for continued residence after separation, were laid down in Chapter B19 of the 1982 Circular. Aliens married to either a Netherlands national, a recognised refugee or a holder of a permanent residence permit (vestigingsvergunning) acquired, after one year of legal residence, ex jure an indefinite right to remain pursuant to section 10(2) of the Aliens Act. This right expired ex jure when the spouses no longer cohabited. 42. Pursuant to Article 4.3 paragraphs (a) and (d) of Chapter B19 of the 1982 Circular an alien whose marriage had lasted for at least three years before it broke down could be granted one year's residence from the date of the de facto breakdown of the marriage, subject to the restriction “for the purpose of finding work, in paid employment or self-employed”. During this year, dependence on social security or unemployment benefits would not be held against the alien. When assessing an application for a subsequent prolongation of the residence permit, the authorities had to determine whether the person concerned was in paid employment or was self-employed, and would continue to be so for at least another year, regardless whether this durable income was obtained from work in a sector where there were sufficient nationals of European Union member States or aliens residing lawfully in the Netherlands available to fill all vacancies. Where no such employment existed for another year, the right of continued residence would be denied. Employment found subsequently would not change that decision unless that work served an essential national interest. 43. Respect for family life as enshrined in Article 8 of the Convention constitutes one of the treaty obligations which may lead to the granting of admission or continued residence (see paragraph 40 above). Article 1.2 of Chapter B19 of the 1982 Circular provided in this respect that where an alien was not eligible for (continued) residence on the basis of the applicable rules, the question whether a refusal of (continued) residence was in accordance with Article 8 of the Convention should always be examined. Similarly, Article 4.4 of Chapter B19 of the 1982 Circular stipulated that in the decision whether or not to grant continued residence, regard should be had to the individual's family life within the context of Article 8 of the Convention. 44. Article 377a of Book 1 of the Civil Code (Burgerlijk Wetboek) regulates access between a child and the parent who was not awarded parental responsibility following the divorce, as well as the grounds on which access can be denied. This provision, in so far as relevant, reads as follows: “1. A child and a parent on whom parental responsibility has not been conferred shall have the right of access to each other. 2. At the request of one or both parents, the court shall establish an arrangement, for an indefinite period or otherwise, for the exercise of the right of access, or shall deny the right of access, for an indefinite period or otherwise. 3. The court shall deny the right of access only if: a. access would seriously damage the child's psychological or physical development; b. the parent is clearly incapable or must clearly be deemed incapable of access; c. when interviewed, a child over the age of 12 has indicated serious objections to access; d. access would be contrary in some other way to the compelling interests of the child. ...” 45. If the parents disagree about the access arrangement, the courts request the Child Care and Protection Board for a report. Where the father has seen the child only occasionally since the child was very young and the parents are in dispute about the question of access, the Board may organise a number of meetings on Board premises, in order to determine how the child responds to the father and how the father treats the child. Such observations are then used to decide on the request for an access arrangement. 46. The applicant applied to the Commission on 6 November 1995. He maintained that the authorities' refusal to grant him continued residence and his subsequent expulsion had infringed Articles 3, 8 and 14 of the Convention. 47. On 27 June 1996 the Commission declared the complaints under Articles 3 and 14 inadmissible, and on 22 October 1997 it declared the complaint under Article 8 admissible. 48. In its report of 20 May 1998, the Commission expressed the unanimous opinion that there had been a violation of Article 8 of the Convention. | 1 |
dev | 001-5723 | ENG | DEU | ADMISSIBILITY | 2,001 | DELJIJAJ v. GERMANY | 4 | Inadmissible | Antonio Pastor Ridruejo | The applicant is a citizen of the Federal Republic of Yugoslavia, belonging to the Muslim Kosovo-Albanian community. She was born in 1976 in Rezalle and is living in Regensburg. She is represented before the Court by Mr Franz Auer, a lawyer practising in Regensburg. The respondent Government were represented by their Agents, Mrs H. Voelskow-Thies, Ministerialdirigentin, of the Federal Ministry of Justice, at the initial stage of the proceedings, and subsequently by Mr K. Stoltenberg, Ministerialdirigent, also of the Federal Ministry of Justice. On 20 November 1994 the applicant left her country in the company of her mother and her five brothers and sisters, born in 1974, 1979, 1981, 1982 and 1984, respectively. They arrived in the Federal Republic of Germany on 25 November 1994 and applied for political asylum. When interviewed on 30 November 1994 before the Federal Office for Refugees (Bundesamt für die Anerkennung ausländischer Flüchtlinge), the applicant stated that, although she had encountered no particular problems with the police or other public authorities, she had left her country with her mother with a view to joining her father who on 17 June 1993 was granted political refugee status in Germany. She did not wish to be left on her own in Yugoslavia. On 12 April 1995 the Federal Office for Refugees granted the applicant's mother and her four minor brothers and sisters asylum. Her sister of full age was granted a residence permit on account of her marriage in Germany. In a separate decision of the same date, the Federal Office for Refugees refused the applicant's request for asylum and requested her to leave the Federal Republic of Germany within a month's time. The Federal Office found that the applicant had not established a real risk of persecution, if she were to return to her country. The Federal Office added that it could not consider humanitarian or personal grounds or questions arising in connection with Article 6 of the Basic Law (Grundgesetz) protecting marriage and family life, the exclusive competence in dealing with these matters being with the authorities in charge of matters concerning aliens (Ausländerbehörde). On 25 April 1995 the applicant lodged an appeal against this decision. She submitted that her father had been granted the status of political refugee. It would be unsafe for her to return to Yugoslavia having regard to the established political persecution of her father. She had left her country because as a member of the Albanian community in Kosovo she was subjected to group persecution. Moreover, her expulsion would be in breach of her right to respect for her family life as guaranteed by Article 8 of the Convention. On 12 January 1996 the Regensburg Administrative Court (Bayerisches Verwaltungsgericht Regensburg) dismissed the appeal. The Administrative Court found that the Kosovo Albanians were not a persecuted group and that the applicant had not established a real and substantial fear of persecution in Yugoslavia. Furthermore, a decision rejecting the application for asylum would not, in the court's view, violate Article 8 of the Convention. Under the relevant rules of the Aliens Act (Ausländergesetz), the applicant could not be granted family asylum since, at the time of introducing her request for asylum, the applicant was more than 18 years old and therefore did not qualify for admission as a dependent child. It was not contrary to the concept of the protection of family life to refuse children, who had reached the age of majority, the right to stay with their relatives in Germany, unless specific circumstances justified an exception to the 18-year age limit. According to the Administrative Court, the applicant had not established the existence of any such circumstances and in particular had not shown that she was in any way dependent on her family in Germany. The Administrative Court noted also that the applicant's uncle lived in Kosovo and that she seemed to be on good terms with him. The applicant's understandable wish to stay with her family in Germany did not constitute a legal obstacle to her intended expulsion. Finally, the Administrative Court pointed out that the administrative authorities in charge of matters concerning aliens could suspend the intended expulsion for humanitarian or personal reasons and issue the applicant a provisional residence permit (Duldung). By a judgment of 18 November 1996 the Bavarian Court of Appeal (Bayerischer Verwaltungsgerichtshof) refused to grant the applicant leave to appeal and dismissed her request for legal aid on the ground that her appeal had no sufficient prospects of success. In June 1998 the applicant thereupon applied with the Regensburg District Authority (Landratsamt) for a decision that the intended expulsion be prohibited under Section 53(4) of the Aliens Act, taken together with Article 8 of the Convention. In ensuing correspondence with the applicant’s representative, the District Authority, in a letter dated 3 September 1998, stated that the applicant had meanwhile been granted a provisional residence permit on account of the critical situation in Kosovo. Having regard to the applicant’s petition with the European Commission of Human Rights, no decision would be taken as long as these proceedings were pending. Since 23 February 2000 the applicant’s provisional residence permit has not been prolonged. She has been ordered to leave the territory of the Federal Republic of Germany and she has been issued travel documents. The time-limit for leaving Germany voluntarily has been regularly prolonged. On 1 July 2000 the applicant’s son A. was born out of wedlock. The child’s natural father is the applicant’s fiancé, who had been granted the status of a recognised refugee and, according to the applicant, does not possess the papers necessary for their marriage. Persons entitled to asylum (Article 16a(1) of the Basic Law) enjoy legal status pursuant to the Geneva Convention on Refugees and are issued with an unlimited residence permit (section 68 of the Asylum Procedure Act). Section 51 of the Aliens Act prohibits the deportation of aliens to a State where they would face political persecution. Aliens granted protection against deportation under this provision enjoy legal status under the Geneva Convention but are merely issued with limited residence for exceptional purposes. If an asylum claim for protection against political persecution does not meet the necessary requirements under Article 16a(1) of the Basic Law or section 51(1) of the Aliens Act, the Federal Office is obliged to examine whether an applicant faces a serious risk of treatment contrary to Article 3 of the Convention if he were returned. Section 53(4) of the Aliens Act prohibits expulsion in such circumstances. If the preconditions for the application of section 53(4) are not met, protection may be granted under section 53(6) of the Aliens Act, which grants a discretion to the authorities to suspend deportation in case of a substantial danger for life, personal integrity or liberty of an alien. Persons afforded protection under this provision are granted temporary permission to remain for periods of three months, renewable by the authorities. The administrative authorities in charge of matters concerning aliens have to examine under Section 55 whether an expulsion has to be suspended for legal or factual reasons or for humanitarian or personal reasons. | 0 |
dev | 001-66711 | ENG | POL | ADMISSIBILITY | 2,004 | W.P. AND OTHERS v. POLAND | 1 | Inadmissible | Georg Ress;Mark Villiger | The applicants, W.P., K.K., M.M., H.M., J.F. and D.F., are Polish nationals who were born in 1966, 1959, 1955, 1957, 1941 and 1952 respectively. Their occupations are respectively as follows: a police officer, a farmer, a police officer, a tailor, a teacher and a pensioner. M.M. and H.M. are married to each other, as are J.F. and D.F. The respondent Government were represented by Ms S. Jaczewska, Acting Government Agent, and subsequently by Mr J. Wołąsiewicz, Agent. The facts of the case, as submitted by the parties, may be summarised as follows. On 22 February 1995 W.P., M.M. and H.M. informed the Kalisz Regional Office (Urząd Wojewódzki) that they had decided to form an ordinary association (stowarzyszenie zwykłe) called the Association of Persecuted Functionaries of the Ministry of Internal Affairs (Stowarzyszenie Represjonowanych Funkcjonariuszy Resortu Spraw Wewnętrznych). They submitted a copy of the memorandum of association, which listed the following objectives: “1. Allowing association of former and present functionaries of the Ministry of Internal Affairs and members of their families who are victims of different forms of repression, persecution, harassment and discrimination. 2. Identification of a phenomenon of persecution, repression, harassment and discrimination in the Ministry of Internal Affairs. 3. Taking action aimed at improving the conditions of service and social conditions of the functionaries of the Ministry of Internal Affairs. 4. Responding to all apparent instances of lawbreaking, abusing authority, harassing, repressing, persecuting and discriminating. 5. Taking action aimed at redressing damage caused to victims. 6. Taking action aimed at obtaining the prosecution of persons responsible for persecution, repression, harassment and discrimination. 7. Co-operating with the public authorities, organs of state administration, national and patriotic organisations, Christian unions and associations. 8. Spreading national and patriotic values. 9. Expressing opinions on public matters.” On 17 March 1995 the Kalisz Governor (Wojewoda Kaliski) applied to the Kalisz Regional Court (Sąd Wojewódzki) for a decision prohibiting the formation of the association. He submitted that its name was misleading as it suggested that persecution was taking place in the Ministry of Internal Affairs. Poland was governed by the rule of law and since 1989 numerous regulations had been introduced to protect the rights of police officers. Finally, the Governor agreed with the opinion of the Kalisz Regional Police Commissioner (Komendant Wojewódzki Policji) that the association’s name defamed the Ministry of Internal Affairs. On 19 September 1995 the Kalisz Regional Court allowed the application and prohibited the formation of the association. It considered that the applicants had not complied with section 45 of the Associations Act 1989, which required them to agree with the Minister of Internal Affairs the association’s objectives concerning the protection of public order. The applicants appealed to the Łódź Court of Appeal (Sąd Apelacyjny) but on 20 February 1997 it dismissed their appeal. The appellate court agreed with the Regional Court’s conclusion that the applicants had breached section 45 of the Associations Act since they had not agreed with the Minister of Internal Affairs the association’s objectives concerning the protection of public order. In addition, the association’s name suggested the existence of persecution in the Ministry of Internal Affairs and therefore defamed a public institution. On 25 June 1996 W.P., M.M., H.M., J.F. and D.F. informed the Kalisz Regional Office that they had decided to form an ordinary association called the National and Patriotic Association of Persecuted Police Officers and Teachers (Stowarzyszenie Narodowo-Patriotyczne Represjonowanych Policjantów i Nauczycieli). On 10 July 1996 the Kalisz Governor applied to the Kalisz Regional Court for a decision prohibiting the formation of the association. On 9 October 1996 the applicants requested that the proceedings be conducted by a judge who had in the past been persecuted by the authorities. On 15 October 1996 the Kalisz Regional Court held a hearing. The applicants failed to attend it despite the fact that they had been served with summonses. The court asked the applicants to clarify whether their request of 9 October 1996 had been filed in order to challenge the presiding judge for bias. On 20 October 1996 the applicants repeated their request of 9 October 1996. On 14 April 1997 the Regional Court dismissed the requests lodged on 9 and 20 October 1997. The court scheduled a hearing for 25 April 1997. The applicants submitted that as a result of “Jewish and Bolshevik reforms” they could not afford to attend the hearing. On 29 April 1997 the applicants asked the Regional Court “to serve them with a reasoned decision taken by the court on 25 April 1997”. On 30 April 1997 the Kalisz Regional Court gave a decision prohibiting the formation of the association. On 30 March 1998 the Regional Court dismissed the applicants’ request of 29 April 1997. It pointed out that they had requested a copy of a non-existent decision, as the court had prohibited the formation of the association by a decision taken on 30 April 1997. Moreover, the applicants had failed to lodge a request for a reasoned decision within one week after that date, i.e. within the time allowed by the Code of Civil Procedure. On 20 April 1998 the applicants received a copy of the Regional Court’s decision of 30 April 1997 prohibiting the formation of the association. On 27 April 1998 the applicants challenged the decision of 30 March 1998 and on 4 May 1998 they appealed against the decision of 30 April 1997. However, their application of 27 April 1998 was dismissed on 3 September 1998. On 20 January 1998 W.P., K.K., M.M., H.M., J.F. and D.F. informed the Kalisz Regional Office that they had decided to form an ordinary association called the National and Patriotic Association of Polish Victims of Bolshevism and Zionism (Stowarzyszenie Narodowo-Patriotyczne Polaków Poszkodowanych przez Bolszewizm i Syjonizm). They submitted a copy of the memorandum of association, which listed the following objectives: “1. Allowing association of Polish victims of Bolshevism/Bolsheviks and Zionism/Zionists. 2. Identification of a phenomenon of persecution, repression, harassment and discrimination in Poland. 3. Identification of a phenomenon of violation of human and civic rights in Poland. 4. Identification of a phenomenon of the holocaust of the Polish nation and the scope thereof. 5. Responding to all apparent instances of lawbreaking, abusing authority, harassing, repressing, persecuting and discriminating. 6. Taking action aimed at equality between ethnic Poles and citizens of Jewish origin by striving to abolish the privileges of ethnic Jews and by striving to end the persecution of ethnic Poles. 7. Taking action aimed at prosecuting and making financially liable tormentors and criminals responsible for the holocaust of the Polish nation. 8. Taking action aimed at prosecuting and making financially liable tormentors and criminals (including tormentors and criminals sitting behind official desks and tormentors and criminals wearing the gown of a judge or prosecutor) responsible for persecution, repression, harassment and discrimination. 9. Taking action aimed at prosecuting and making financially liable tormentors and criminals responsible for violating human and civic rights. 10. Revealing and fighting threats directed against the most important interests of the Polish nation. 11. Taking action aimed at redressing damage caused to victims. 12. Taking action aimed at improving the living conditions of Polish victims of Bolshevism/Bolsheviks and Zionism/Zionists. 13. Taking actions aimed at determined opposition to the psychological and physical murder of the Polish nation. 14. Spreading national and patriotic values. 15. Claiming veteran benefits for Polish victims of Bolshevism/Bolsheviks and Zionism/Zionists. 16. Co-operating with institutions, national and patriotic organisations, Christian, unions and associations conducting real (not feigned) activities for the good of the Polish nation. 17. Expressing opinions on public matters.” On 22 January 1998 the Kalisz Governor applied to the Kalisz Regional Court for a decision prohibiting the formation of the association. On 6 March 1998 the Kalisz Regional Court allowed the application and prohibited the formation of the association. The court considered that the memorandum of association did not comply with the law. The applicants intended to form an ordinary association which did not have legal personality. Only point 1 of the memorandum setting out the association’s objectives could be approved. The remaining objectives were either unlawful or unrealistic and could not be pursued by an ordinary association. In particular, points 2, 3, and 4 referred to objectives already realised by other institutions. Point 6 introduced a notion of inequality between citizens which did not exist. Moreover, point 8 amounted to defamation of judges and prosecutors. The applicants appealed to the Łódź Court of Appeal but on 24 July 1998 it dismissed their appeal. Article 12 of the Constitution, which was adopted by the National Assembly on 2 April 1997 and entered into force on 17 October 1997, states: “The Republic of Poland shall ensure freedom for the creation and functioning of trade unions, socio-occupational farmers’ organisations, societies, citizens’ movements, other voluntary associations and foundations.” Article 13 reads: “Political parties and other organisations whose programmes are based upon totalitarian methods or the models of nazism, fascism or communism, or whose programmes or activities foster racial or national hatred, recourse to violence for the purposes of obtaining power or to influence State policy, or which provide for their structure or membership to be secret, shall be forbidden.” Section 1 of the Associations Act, in so far as relevant, reads: “1. Polish citizens shall exercise the right of association in accordance with the Constitution ... and the legal order as specified by statute. 2. The [exercise of the] right of association may be subject only to such limitations as are prescribed by law and are necessary for ensuring the interests of national security or public order and for the protection of health and morals or for the protection of the rights and freedoms of others. 3. Associations shall have the right to express their opinion on public matters.” Section 2, in so far as relevant, provides: “1. An association is a voluntary, self-governing, durable union pursuing non-profit-making aims. 2. An association shall freely determine its objectives, its programmes of activity and organisational structures, and shall adopt internal resolutions concerning its activity.” Section 45 provides: “Persons intending to form an association whose activity will be directly related to defence or State security or the protection of public order shall agree the scope of such activity with the Minister of Defence or the Minister of Internal Affairs, respectively (...).” Chapter 6 of the Act concerns ordinary associations. It provides that they do not have legal personality and are exempt from registration. Persons intending to form an ordinary association must adopt a memorandum of association and submit it to a supervisory authority, which can request a court to prohibit the formation of the association. The court can prohibit the formation of the association if its memorandum is not compatible with the law or if its founders do not fulfil the legal requirements. Article 369 provides: “§ 1 An appeal shall be lodged with the court which gave the impugned judgment within two weeks after the date on which a party was served with the reasoned judgment. § 2 If a party has not requested the reasoned judgment within a week after the delivery of its operative part, the time allowed for lodging an appeal shall run from the date on which the time allowed for requesting the reasoned judgment expired.” | 0 |
dev | 001-5619 | ENG | GBR | ADMISSIBILITY | 2,000 | RANDALL v. THE UNITED KINGDOM | 4 | Inadmissible | Nicolas Bratza | The applicant is a British national, born in 1952. He is currently serving a prison sentence in the United Kingdom. He is represented before the Court by Mr Dennis A. Clarke, a lawyer practising in Tonbridge, England. In July 1997 the applicant was tried before a jury at Maidstone Crown Court on a charge of murdering his girlfriend (“T.”) at her home. The court heard that the police were called to T.’s home in the early hours of 2 June 1996 and found her body in the kitchen. The applicant was lying on the floor with his head resting on her stomach. T. had been stabbed eighteen times, most of the wounds being to her left hand. There were two deep wounds, one to her face and one to her left breast area. According to Dr Rouse who carried out the post mortem analysis on behalf of the Crown, either of those wounds was fatal. Dr Rouse also examined stab wounds, seven in all, found on the applicant’s body. He advised that there was no evidence of defensive injuries either to the applicant’s arms or hands. At the same time, Dr Rouse was unable to determine whether or not the wounds were self-inflicted or inflicted by a third party. D.L., a friend of the deceased, testified at the trial that the applicant telephoned her shortly after midnight on 2 June 1996 and exclaimed that: “T.’s dead and I’m dead.” When she arrived at T.’s house, the applicant was holding a kitchen knife. He told her: “I’ve killed T., I’ve got to kill myself.” According to two police officers who arrived at the scene, the applicant stated: “Well lads, I’ve done it now but I tell you what, I love her.” The police recovered two blood-stained carving knives from the kitchen, either of which could have caused the injuries to T. and the applicant. The applicant was taken to a hospital where he underwent lengthy surgery for his injuries. He remained in intensive care for a period of time and was finally discharged on 17 June 1996. He was taken directly to a police station. Although a doctor had expressed the opinion on 13 June 1996 that the applicant was not fit to be interviewed, a contrary opinion was given by another doctor who examined him on the morning of 17 June 1996 and found that, although in pain, he was fit to be interviewed. The applicant was subsequently interviewed between 10.52 a.m. and 12.50 p.m. on 17 June 1996. The applicant was cautioned as follows in the presence of his solicitor: “You do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you say may be given in evidence.” The applicant’s solicitor advised him not to answer police questions and referred to the pain which the applicant was suffering as well as his lack of sleep. On the strength of that advice the applicant made no comment to the questions put to him during the interview. The questions centred on his presence at the deceased’s house, the presence of blood on his clothes and body, his being in possession of knives when the police arrived at the scene and the injuries which he had sustained. He was also questioned about the defence injuries to the deceased’s body and the absence of any defence injuries to his own body. On 17 June 1997 the applicant was charged with T.’s murder. At his trial the applicant did not dispute that he had stabbed T. However he pleaded that he had acted in self-defence. In the alternative, he relied on the defence of diminished responsibility under the terms of section 2(1) of the Homicide Act 1957, as well as that of provocation. As to the latter defences, he relied on the testimony of Dr Beck, a clinical psychologist, and Dr Eastman and Dr Sugarman, both consultant psychiatrists. Dr Eastman stated that, in his opinion, the applicant was suffering from a mild to moderate depressive illness at the time of the incident. In Dr Sugarman’s opinion the applicant was suffering from a moderate depressive illness at the time. They both expressed the view that the applicant was suffering from an abnormality of mind sufficient to impair substantially his mental responsibility. As to the defence of provocation, Dr Eastman testified that if the court concluded that the applicant had not got over his mother’s death and that his condition arose out of inadequacies in his personality, and if it were accepted that the applicant was suffering from mild to moderate depressive illness at the time of the offence, that would be relevant to explaining the applicant’s reaction and his susceptibility to some types of alleged provocation. Dr Beck observed that the applicant had real difficulty in processing multiple sources of information, a failing which could be linked to possible brain damage which the applicant sustained in a traffic accident when he was young. The other doctors had earlier stated that their conclusions would be reinforced by evidence of brain damage. In connection with his plea of self-defence the applicant told the jury that T. had become argumentative when they went back to her home after an evening spent at a club. T. suddenly began to stab him with a kitchen knife and he defended himself with a fork. T. then attacked him with a bigger knife. He stated in his testimony that he must have taken out a knife from the kitchen drawer during this time. He tried to wrestle her to the floor, but she continued to stab him. He must have lashed out and caused the injury to her face, but did not remember doing so. Eventually she stabbed herself in the chest, telling him that she loved him. He then pulled the knife out of her body. The witness, D.L., arrived at some stage and he had to smash a glass panel to let her into the house. He told her: “I think T. is dead. I love her, I’m going with her.” With those words, he stabbed himself in the throat and on the chest and lay down on the kitchen floor with his head resting on T.’s stomach. When cross-examined as to why he did not give this account of the incident to the police on 17 June 1996 during interview, the applicant replied that he wanted to answer the questions put to him but: “[that his] solicitor said I was in no condition to answer. I would have tried my best to answer the questions. I understood what they said. It was fuzzy to me. My recollection was I couldn’t recall, but it came back to me in flashbacks. I couldn’t remember everything. ... I had to keep trying to remember. I tried to remember the best I could. ... I must have been responsible for it, cos she wouldn’t be dead.” When asked by prosecution counsel what he had remembered on the day of the interview, the applicant replied that he knew that T. had attacked him, that she had deliberately plunged a knife into him and that he had reacted as he did in self-defence. He was then asked whether he could have told the police about these matters on the morning of the interview. The applicant replied in the affirmative adding: “... I was advised not to say anything. On ill health, because I was so drugged up from the hospital. Like, I was hurting bad – and they knew I was hurting bad.” In the course of the trial, the prosecution invited the judge to leave the jury with the option of drawing adverse inferences from the applicant’s silence during police interview on the ground that the applicant’s account of the incident had been fabricated before interview and that he knew that it would not withstand police questioning. Counsel for the applicant, with reference to the Court of Appeal’s judgment in R. v. Condron ([1997] 1 Criminal Appeal Reports, p. 185) contended that adverse inferences could only be drawn from an accused’s silence under caution when the failure to mention facts in interview which are later relied on at the trial can only be explained in terms of their fabrication after the interview. The trial judge rejected the applicant’s submission. At the close of the trial the judge in his summing up reminded the jury of the answers given by the applicant under cross-examination. He directed the jury in the following terms: “Those were questions asked by [prosecution counsel] in cross-examination, members of the jury. You will remember that [counsel] was asking them to establish what the defendant said was his state of knowledge at the interview. He was telling you in evidence that at the interview he knew full well that [T.] had struck him the first blow, was the aggressor. He knew full well that she had caused a situation where he was acting in self defence. He knew full well that, in the end, she had plunged that knife deliberately into her chest. Now those are all matters which you heard about in evidence, but which the officers in the interview ... did not hear at all, because when they asked questions directed to these matters the answer was no comment. You have been rightly told as to what the law is in relation to inferences that you can draw. I told you a little earlier this morning that I would come to the law on this subject after I had dealt with the answers the defendant had given in his evidence before you as to why he did not mention those facts at the time of the interview. I now, therefore, give you this direction in law. As it is a direction in law, you must take the law from me. The facts, of course, are for you. The defendant, as part of his defence, has relied on facts which he alleges. Those facts include the fact that [T.] attacked him and struck him first, and that what he did was only in self defence. She then plunged the knife into herself. He admits that he did not mention those facts when he was questioned under caution, before being charged with the offence. The prosecution case is in the circumstances, when he was questioned, he could reasonably have been expected then to mention those facts. If you are sure that he did fail to mention them when he was questioned, and he accepts that, then you decide whether, in the circumstances, they were facts which he could reasonably have been expected then to mention. If they were, the law is that you may draw such inferences as appear proper from his failure to mention these matters at that time. Failure to mention such a fact cannot on its own prove guilt but, depending on the circumstances, you may hold it against him in deciding whether he is guilty. That is, take it into account as some additional support for the prosecution case. You are not bound to do so. It is for you to decide whether it is fair to do so. There is evidence before you, on the basis of which [defence counsel] invites you not to hold it against him that he failed to mention these facts. That evidence I have just reminded you of. It is evidence as to the state of his health at the time, the pain that he was experiencing and that he was acting on legal advice. If you think that that amounts to a reason why you should not hold the defendant’s failure against him, do not do so. On the other hand, if it does not, in your judgment, provide an adequate explanation, or you are sure that the real reason for his failure to mention these facts was that he had no answer, or none that would stand up to cross-examination, then you may hold the adverse inference against him. Let me warn you as to one inference which I direct you is one that you may not draw against him. You may not draw against him an inference that his account was only made up after the interview, and that it is therefore a post interview fabrication. That is because in his trial he was cross-examined. He said at the interview he was fully aware, when the police officers were questioning him, that T. had attacked him, that she had plunged the knife into herself, and that he had been acting only in self defence. When he gave those answers in the witness box, the prosecution did not challenge that account. They accepted it. The inference they invite you to draw was not that it was made up after the interview. It is a different one. The inference they invite you to draw is that the account was false, and had already been made up on the day of the interview. But, on that day, the defendant was simply not prepared to expose the account to critical questioning and examination, which he feared would expose its falsity, in that it would not stand up to questioning and cross-examination at all. That is the law in relation to inferences. You are entitled to look at the situation in that light, and come to the conclusion whether you will draw inferences against the defendant, or whether you will not.” In a separate direction the trial judge also directed the jury that if they were to find the applicant guilty of manslaughter by reason of his diminished responsibility at the time of the offence they had to be satisfied that the applicant was suffering from an abnormality of mind, that that abnormality was caused or induced by disease or injury and that the abnormality “substantially impaired” the applicant’s responsibility for his act. The judge stated with reference to the expert medical witnesses called by the applicant and to the statutory requirements of section 2(1) of the Homicide Act 1957: “You will probably be quite satisfied that the defence has established an abnormality of mind, has established that it was caused by disease. It will be the third element that you will move on to. Abnormality of mind proved to the necessary standard by the defendant. Abnormality induced by disease, the disease of a depressive illness, again proved. So you would have to go on to the third question, which is whether the defendant’s mental responsibility was or was not substantially impaired by that abnormality of mind. You will want to consider the views of the experts on that question. But as you have heard, and as is the law, the decision as to whether or not his responsibility was substantially impaired is a matter for you, the jury.” The trial judge subsequently advised the jury on the issue of “expert evidence” and the approach which they should take to the evidence given by the medical experts called by the applicant. He noted that Dr Eastman had stated under cross-examination that even if all three of the requirements contained in the Homicide Act 1957 were satisfied, his view depended on what he had been actually told by the applicant after the commission of the offence. The trial judge concluded his summing up by stating that the decision as to whether or not the applicant’s responsibility was “substantially impaired” was a matter for the jury to decide and that they were not bound by what the medical witnesses had said. The jury was told that if there was no evidence to cast doubt on the medical evidence, then they must accept that evidence. The judge then dealt with the issue as to what the defendant had said to the doctors on the basis on which they had formed an opinion. He reminded the jury that Dr Eastman had acknowledged that if that evidence was undermined, the basis for his opinion would disappear. On 31 July 1997 the applicant was convicted of murder. He was given a mandatory life sentence. On 8 December 1997 the Single Judge refused the applicant’s application for leave to appeal against conviction. The applicant’s renewed application was heard by the Court of Appeal (Criminal Division). In his perfected grounds of appeal, the applicant asserted, inter alia, that the trial judge had misdirected the jury by leaving them the option of drawing an adverse inference in circumstances where the prosecution had not alleged that his account at the trial had not been recently fabricated. He maintained in the alternative that the trial judge was wrong to leave the jury the option of drawing adverse inferences in circumstances where the applicant had given unchallenged evidence that he could have given his account of the incident in interview. The applicant also maintained before the Court of Appeal that the trial judge had misdirected the jury as regards the medical evidence which supported his defence of diminished responsibility. He referred in particular to his concerns that the judge’s first directions on this matter were contradictory and that the judge had failed to say what evidence pointed against the medical experts’ opinion. The Court of Appeal dismissed the applicant’s appeal in its judgment delivered on 3 April 1998. Lord Justice Evans stated with respect to the issue of adverse inference: “The third suggested ground of appeal arises under section 34 of the 1994 Act with regard to inferences that the jury might draw from the ‘No comment’ answers in interview. In his summing-up the learned judge reminded the jury of what had happened and in particular of the fact that the defendant’s solicitor had advised him not to answer questions at that stage. He referred also to the parts of the evidence where the defendant had been asked about this, and in particular he quoted the defendant’s answers which were as follows: ‘My solicitor said I was in no condition to answer. I would have tried my best to answer the questions. I understood what they said. It was fuzzy to me. My recollection was I couldn’t recall, but it came back to me in flashbacks. I couldn’t remember everything.’ He said, ‘I had to keep trying to remember. I tried to remember the best I could.’ He tried to work out what went on. He was also asked: ‘You had the ability that day to say all of those things to the police, did you not?’ He said he could have said them to the police. He was asked, ‘You could have said those things?’, and said, ‘But I was advised not to say anything. On ill health, because I was so drugged up from the hospital. Like, I was hurting bad – and they knew I was hurting bad’. Then the learned judge proceeded to consider the question of inferences, and he gave the jury an extended direction... He concluded as follows: ‘When he gave those answers in the witness box, the prosecution did not challenge that account. They accepted it. The inference that [they] invite you to draw was not that it was made up after the interview. It is a different one. The inference they invite you to draw is that the account was false, and had already been made up on the day of the interview. But, on that day, the defendant was simply not prepared to expose the account to critical questioning and information, which he feared would expose its falsity, in that it would not stand up to questioning and cross-examination at all.’ It was, in other words, not put to the defendant that he had invented or fabricated his account after the interview. The submission made to us, as it was made to the learned judge in the course of the trial, was that no inference was possible and therefore the jury should have been directed, since the prosecution did not rely upon that inference, that no inference should be drawn by them against the defendant. This had been the subject of a ruling on 23rd July before speeches began. The judge ruled that it was unnecessary for the defence to call the solicitor who had given the advice because there was no suggestion of recent fabrication, meaning post-interview intervention. We would hold that the submission which [prosecution counsel] made, and which the learned judge upheld, was correct. The inference described by the learned judge to the jury was a possible inference for the jury to draw. It would mean that the defendant already had it in mind to say that he had acted in self-defence, and the question would remain, if that was in his mind, why should he not say so? We therefore reject that suggested ground of appeal also.” As to the issue of how the trial judge dealt with the applicant’s defence of diminished responsibility, Lord Justice Evans stated that he had no hesitation in holding that the trial judge’s directions on the matter were sufficient since he had made it clear to the jury that the doctors had agreed at the trial that their opinions were based on what the applicant had told them after the offence about his mental condition. It was in that context that the jury had to consider whether or not the applicant’s account to them was truthful. Section 34 of the Criminal Justice and Public Order Act 1994 provides that: “1. Where in any proceedings against a person for an offence, evidence is given that the accused – (a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or (b) ... being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies. 2. Where this subsection applies ... (c) the court, in determining whether there is a case to answer; and (d) the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper. 3. Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention.” Section 35(2) and (3) provides: “(2) Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question. (3) Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.” Section 38(3) adds that: “A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2)...” Further details of the law and practice governing the interpretation of these provisions are set out in the Condron v. the United Kingdom judgment of 2 May 2000 (application no. 35718/97, to be published in the Court’s official reports). “Where a person kills or is a party to a killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested development or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts or omissions in doing or being a party to the killing.” | 0 |
dev | 001-108578 | ENG | UKR | CHAMBER | 2,012 | CASE OF TODOROV v. UKRAINE | 3 | Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6-3-c - Defence through legal assistance);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed | Angelika Nußberger;Dean Spielmann;Elisabet Fura;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy | 6. The applicant was born in 1966 and lives in Simferopol. 7. On 2 August 1999 the applicant, a police officer at the material time, was arrested on suspicion of membership of a criminal association run by S. P., another police officer, and participation in armed robberies. On the same date his house was allegedly searched without a warrant. 8. On 3 August 1999 the applicant signed a waiver of his right to legal representation. On the same date he confessed to having participated in group assaults on families I. and S. in August 1998 upon S. P.’s invitation. He also noted that he believed that the families were visited for collection of unpaid business debts in favour of third parties. According to the applicant, he notified the investigator that he was unable to see the record of his questioning as he had been suffering from eye cataracts. 9. On 5 August 1999 the applicant was indicted. He signed the statement of indictment, having noted that he fully acknowledged his guilt and requested to be released from detention, since he needed in-patient treatment on account of his skin disease and eye cataracts, as well as surgery for the latter. 10. On the same date the applicant obtained access to an advocate. It is unclear, however, whether the advocate was present during the applicant’s interrogation and indictment on that date. 11. Also on the same date the applicant was remanded in custody as a preventive measure. On various occasions the applicant appealed against this measure, in particular, referring to an urgent need to have eye surgery and in-patient treatment for other medical conditions. However his requests were rejected. 12. During the pre-trial investigation, the authorities questioned some 120 witnesses concerning over thirty episodes of various crimes, carried out some twenty reconstitutions of the crime scenes and ordered numerous expert assessments. 13. On 20 July 2000 the investigation was completed and the applicant, along with eighteen other individuals charged for being involved in a criminal association membership, was committed for trial to the Supreme Court of the Autonomous Republic of the Crimea (subsequently renamed the Court of Appeal of the Autonomous Republic of the Crimea (hereafter “the Court of the ARC”). 14. On 4 May 2001, following familiarisation of the defendants with the case-file materials and completion of other procedural formalities, the Court of the ARC held a preliminary hearing in the case and scheduled the trial for 5 June 2001. 15. On 29 June 2001 the newspaper Flag Rodiny published an article entitled “Changelings with police epaulettes”, featuring in particular an interview with Sh., the judge presiding over the applicant’s case. The judge was quoted as saying that she was appalled by the audacious crimes committed by the defendants and their challenging conduct at court hearings. 16. Having held some eighteen hearings between June and December 2001, the Court of the ARC adjourned the proceedings in connection with one of the defendants’ request to ensure recording of the hearings with technical equipment which was unavailable. 17. On 15 May 2002 the Court of the ARC resumed consideration of the case and held some 150 hearings in the period ending 22 May 2004. 18. The applicant alleged that on various occasions he and his co-accused had requested the removal of Judge Sh. from the proceedings on various grounds, including lack of impartiality; however, their requests had been rejected. The applicant did not provide copies of his requests for the removal of Judge Sh. or the decisions taken following their consideration. 19. The Government alleged that the applicant had never lodged any requests for the removal of the judge during the trial. Such requests had been lodged only by one of his co-defendants, A. K., who had also requested on 29 January 2003 that the above newspaper article be added to the case-file. Those requests had been dismissed as unsubstantiated. 20. During the trial, the applicant denied any encounter with the I. family. As regards the S. family, he acknowledged having visited them along with three other defendants to collect the debt owed to a third party at S. P.’s request. He contended that he had been in the kitchen while his companions had spoken with the hosts, that the hostess had given them money voluntarily, and that he had been unaware of any coercion taking place. He further retracted his confessions given during the pre-trial investigation in the advocate’s absence, alleging that at the material time he had been practically blind and unable to read the documents he was signing. He had signed the waiver of his right to be represented by an advocate under pressure from the investigator, who promised that in exchange for his cooperation he would be promptly released from custody to enable him to seek medical treatment. 21. On 17 November 2004 the Court of the ARC pronounced its judgment, the text of which was presented on over two hundred pages and concerned over thirty counts of various crimes, including robberies, a murder and assaults committed by nineteen defendants collectively and individually against numerous victims. By this judgment, the applicant was convicted of a criminal association membership and two counts of armed robbery (against the families I. and S.). By way of evidence of his participation in the robberies, the court referred, primarily, to the confessional testimonies of his co-defendants, identifying him as their accomplice, and the testimonies of the members of the assaulted families given during pre-trial investigation and trial, in which they alleged to have recognised the applicant. The applicant’s confessional statements were not referred to by the court in the text of its judgment. The court sentenced the applicant to seven years’ imprisonment, banned him from occupying certain posts for a three-year term and ordered the confiscation of his property. 22. In December 2004 and January 2005 the applicant, his lawyer, and his mother acting as his defence, submitted appeals in cassation against the applicant’s conviction. They presented the same version of events as proposed by the applicant during his trial and contended that the court had misinterpreted facts and wrongly applied the law. They challenged the testimonies given by the applicant’s co-defendants, alleging they had been given under duress, and testimonies given by the victims as ambiguous and unreliable. They further contended that all the evidence collected from the applicant in violation of his right to be legally represented should be excluded from the body of evidence. The appellants noted that immediately upon his arrest the applicant had informed the investigative authorities that he was almost blind and was unable to read the documents he was signing. The waiver of his right to be legally represented had not been genuine. On the contrary, the video-recording of the applicant’s initial questioning showed that he requested the assistance of a lawyer, referring to his poor health and vulnerable state. Lastly, the appellants complained that the sentence imposed on the applicant was disproportionately severe, particular regard being had to his state of health and lengthy pre-trial detention in conditions incompatible with it. 23. On 12 December 2005 the applicant’s mother drafted a supplement to the above-mentioned appeals, in which she complained, inter alia, that Judge Sh. had not been impartial, since, as it transpires from her interview to the Flag Rodiny newspaper in June 2001, she had had a preconceived notion of the applicant’s guilt from the very beginning of the trial. The copy of this supplement contained in the case file bears no stamps or other evidence that it was admitted by the court for consideration or at least lodged with it. 24. On 16 March 2006 the Supreme Court of Ukraine dismissed the applicant’s and his representatives’ appeals in cassation, having found that the trial court had correctly assessed the evidence and applied the law and that there was no appearance of any procedural violations which could have affected the outcome of the case. 25. Prior to his arrest, the applicant had been diagnosed as suffering from immature cataracts in both eyes and neurodermatitis. 26. On 2 August 1999 the applicant was placed in the Saky Temporary Detention Centre (“the ITT”), where, according to him, he was held in inhuman conditions (overcrowding, poor sanitary arrangements and risk of pressure from inmates because he was a policeman). 27. On 9 August 1999 the applicant was transferred to the Simferopol no. 15 Pre-trial Detention Centre (“the SIZO”). 28. Upon his arrival, the applicant was examined by the SIZO medical staff and placed under dispensary supervision for immature aggravated cataracts in both eyes, diffused eczema, and chronic gastritis. 29. On 28 February 2000 the applicant informed the Prosecutor of the ARC that he had started a hunger strike in protest against being denied the medical assistance he needed. 30. On 27 March 2000 the applicant was examined by the medical committee of the ARC Semashko Hospital, which concluded that at the material time he was suffering from scabies, eczema, chronic prostatitis, nephroptosis, gastritis and reactive hepatitis. It further found that the applicant needed in-patient treatment in a specialised facility for his skin diseases and that his cataracts were mature and needed to be surgically removed after treatment of inflammatory processes. 31. On 5 July 2001 another medical committee determined that the applicant was still suffering from eczema, gastritis and mature cataracts, for which he needed surgery. 32. On 16 July 2001 the applicant was further examined by the head ophthalmologist of the ARC and it was recommended that eye surgery be performed promptly to prevent potential aggravations such as full loss of eyesight and eruption of the eyeballs. The applicant was further advised that in order for the surgery to be effective he needed first to obtain therapeutic inpatient treatment and be supervised by an ophthalmologist for up to two months after the surgery. 33. On 17 August 2001 the Court of the ARC adjourned hearings to allow for the applicant’s eye treatment. 34. On the same day the SIZO administration requested the Court of the ARC to consider releasing the applicant from custody, because it was impossible to provide the therapeutic treatment he needed in the SIZO. However, this request was not granted. 35. On 3 September 2001 the applicant was taken to the eye clinic for surgery. However, having allegedly been advised by medical professionals that the success of the surgery was at risk because of his untreated skin inflammations, he refused to be operated on and returned to the SIZO. 36. On 2 September 2005 the SIZO administration petitioned for the applicant’s release from detention, referring to the lack of necessary facilities in the SIZO for the applicant’s proper treatment and risk of permanent loss of eyesight. 37. On 9 September 2005 the applicant was assigned the first (most advanced) category of invalidity on account of complete loss of eyesight. 38. On 2 August 2006 the applicant was released from custody, as he had already served his sentence. 39. The relevant provisions of Articles 59 and 63 of the Constitution of Ukraine concerning the right to legal assistance and the right not to incriminate oneself can be found in the judgment of 19 February 2009 in the case of Shabelnik v. Ukraine (no. 16404/03, § 25). 40. The relevant provisions of the Code of Criminal Procedure of Ukraine, as worded at the material time, read as follows: “The court, in the event there are grounds for it, shall take a separate ruling (окрема ухвала), in which it shall draw the attention of the State bodies, public organisations or officials to the breach of the law established in the facts of case ... A separate ruling may also be taken where the court reveals breaches of rights of citizens and other breaches of the law that took place during inquiry, pre-trial investigation or consideration of the case by a lower court. ... The separate ruling must be acted upon as necessary and the court which issued the ruling notified of the results within a month. In the event that an official leaves the separate ruling without consideration, the measures laid down in Articles 254 - 257 of the Code of Administrative Offences of Ukraine shall be applied. “A suspect, an accused and a defendant in court may at any moment waive [their right to be represented] ... The waiver may not be accepted: ... 2) in cases concerning crimes by persons who, on account of their physical or mental disabilities (muteness, deafness, blindness and other), cannot exercise their right to defence by themselves; ...” 41. Articles 246, 281 and 396 of the Code provided that if the courts revealed such breaches of the law by the investigative authorities during pre-trial investigation, which could not be remedied at the trial stage, they were to remit the case back to the investigative authorities with instruction to address those breaches. 42. The relevant provisions of the Code concerning preventive measures pending trial are quoted in the judgment in the case of Yeloyev v. Ukraine, no. 17283/02, § 35, 6 November 2008. 43. The relevant parts of the above ruling read as follows: “... 19. Article 59 of the Constitution of Ukraine provides that everyone has the right to defend himself from accusation and to obtain legal assistance. Therefore, examining a criminal case, the court must, in the circumstances provided by law, ensure the defendant’s right to defence. ... It shall be borne in mind that under Article 62 of the Constitution an accusation may not be based on presumptions or on evidence obtained in an unlawful way. Evidence should be considered as having been obtained unlawfully when, for example, it has been collected and recorded in breach of the human and citizens’ rights guaranteed by the Constitution of Ukraine, or of ... the law on criminal procedure ...” 44. The relevant international materials with respect to healthcare arrangements in detention facilities may be found in the judgment in the case of Ukhan v. Ukraine (no. 30628/02, § 50, 18 December 2008). | 1 |
dev | 001-103222 | ENG | RUS | CHAMBER | 2,011 | CASE OF IGOR KABANOV v. RUSSIA | 4 | Violation of Art. 6-1;Violation of Art. 10 | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | 6. The applicant was born in 1966 and lives in Arkhangelsk. 7. The applicant, an advocate at the time, acted as defence counsel for a Mr R. 8. On 5 August 2003 the Primorskiy District Court of Arkhangelsk, chaired by judge V., removed the applicant from his position as Mr R.'s counsel. The District Court found that the applicant had acted contrary to the Code of Criminal Procedure and the Advocate's Code of Ethics. The court noted, in particular: “Persistent and repeated voluntary statements made by [the applicant] that he provided legal advice to witnesses N. and S. and at the same time acted as counsel for defendant R. ... show that [the applicant], in violation of the formal requirements of the Russian Code of Criminal Procedure, provided legal advice and acted as counsel in respect of persons whose interests were in conflict. Therefore, it is not possible for [the applicant] to continue to participate in the trial as legal counsel for defendant R. or to provide legal advice to N. and S.” 9. On 26 September 2003 the District Court found Mr R. guilty as charged. 10. On 16 December 2003 the Arkhangelsk Regional Court quashed Mr R.'s conviction and remitted the matter for fresh consideration. The court also upheld on appeal the decision of 5 August 2003. 11. On 22 December 2003 the applicant asked the Presidium of the Regional Court for supervisory review of the judicial decisions to remove him from being Mr R.'s representative. 12. On 2 February 2004 judge A. of the Regional Court dismissed the above complaint. In particular, the judge noted as follows: “I hereby return your complaint against ... the decisions ... of 5 August 2003 and 16 December 2003 without having considered it on the merits. [The reason for this is that] the Primorskiy District Court of the Arkhangelsk Region opened R.'s trial on 22 January 2004 and it is impossible to verify the lawfulness and inconsistency of the decisions in question.” 13. On 9 February 2004 the applicant filed a complaint against the judges who had participated in the proceedings for the determination of the criminal charge against Mr R., alleging that they had acted in violation of the rules of criminal procedure by refusing to consider his application for supervisory review in respect of the decision of 5 August 2003. The complaint was addressed to the President of the Supreme Court of the Russian Federation with a copy to the President of the Arkhangelsk Regional Court. The applicant asked for the President's intervention which would prompt, in his opinion, the Arkhangelsk Regional Court to respond to his application for supervisory review. 14. In particular, the applicant made the following comments in the complaint: “... Judges A. and V. used to “plough the fields of justice together” at the Arkhangelsk Regional Prosecutor's Office, and, apparently, they “continue their joint efforts now” at the Arkhangelsk Regional Court ... ... In my opinion, either judge A. is not quite familiar with the law, which is sad, or judge A. wilfully and knowingly restricts my access to court, which is twice as sad ... ... On 2 February 2004 I received an absolutely unlawful “brush-off” reply from judge A ... ... [Judge A.] could have unglued his posterior from [his] seat and brought it to the premises of the Primorskiy District Court ... ... Otherwise, why would judge A. receive such a salary which I, as a tax payer, contribute to? ... ... But judge A. simply pushed away my [request for] supervisory review and, by doing so, he seriously violated the rules of criminal procedure and my constitutional rights ... ... I believe that one telephone call from the Supreme Court of the Russian Federation will be enough to make the Arkhangelsk Regional Court consider my complaint on the merits ...” 15. The President of the Supreme Court forwarded the applicant's complaint to the Arkhangelsk Regional Court for further action. The President of the Arkhangelsk Regional Court lodged a complaint with the Council of the Arkhangelsk Region Bar Association (the “Council”) alleging that the above comments were offensive and incompatible with the Advocate's Code of Professional Conduct. He stated as follows: “In our opinion, [the applicant's complaint] contains remarks which are offensive and tactless vis-à-vis certain judges of the Arkhangelsk Regional Court. We believe that the content and the style of the complaint are impermissible. In our view, the reference made by [the applicant] in his complaint addressed to the President of the Supreme Court of Russia that ... a decision could be made in response to his application for supervisory review through a telephone call ... shows that he is lacking the qualities appropriate to his profession. [A]dvocates should, under any circumstances, be tactful and correct vis-à-vis their counterparts and public officers, including judges. [They] should demonstrate respect towards the court and challenge [judicial] acts correctly and in accordance with the law. Having regard to the above ... I hereby request that you follow up on the applicant's conduct and inform the Arkhangelsk Regional Court of the measures taken.” 16. On 21 April 2004 the Council held a disciplinary hearing. The applicant did not challenge the offensive character of the comments. He submitted that he had been, in a way, provoked by the judges' allegedly unlawful decisions. The Council granted the complaint and terminated the applicant's bar membership as of 22 April 2004. In particular, the Council noted as follows: “[The applicant's complaint] addressed to the President of the Supreme Court of Russia contains tactless remarks in respect of certain judges of the Arkhangelsk Regional Court, which amounts to a violation of the Advocate's Code of Professional Conduct ... The content and the style of the [applicant's] complaint addressed to the President of the Supreme Court of Russia are impermissible. The reference made by [the applicant] in his complaint addressed to the President of the Supreme Court of Russia that ... a decision could be made in response to his application for supervisory review through a telephone call ... shows that he is lacking the qualities appropriate to his profession. [A]dvocates should, under any circumstances, be tactful and correct vis-à-vis ... judges. [They] should demonstrate respect towards the court and challenge [judicial] acts correctly and in accordance with the law.” 17. The applicant appealed to the court. He claimed that he was disliked by the members of the Council and their decision had been retaliation against him for his personal views and convictions. He also alleged that the disciplinary hearing had been carried out with certain procedural irregularities. 18. On 22 June 2004 the Oktyabrskiy District Court of Arkhangelsk dismissed the claim brought by the applicant against the Bar Association seeking reinstatement of his membership. The applicant appealed. 19. On 9 August 2004 the applicant asked the Arkhangelsk Regional Court to transfer the case to another jurisdiction for consideration. The applicant alleged that any judge of the Regional Court would be biased against him because the original complaint which had prompted the disciplinary proceedings against him had been lodged by the President of the said court. On the same day judge M. of the Regional Court refused to consider the applicant's request and returned the relevant documents to him. In particular, the judge informed the applicant as follows: “I hereby return your application stating the challenge to the whole composition of ... the Arkhangelsk Regional Court and advise you that, pursuant to the rules of civil procedure, it is only possible to challenge the specific judges who are appointed to consider your case and not the whole composition of [the court].” 20. On 16 August 2004 the Arkhangelsk Regional Court upheld the judgment of 22 June 2004 on appeal. The court dismissed as unsubstantiated the applicant's allegations of the Council's partiality. Nor did it discern any procedural irregularities in the applicant's disbarment. 21. The Advocate's Code of Professional Conduct (Article 18 § 1) establishes that an advocate may be subject to disciplinary proceedings for a failure to abide by legislation concerning advocates' activities and advocacy and for failure to abide by the Code itself. Any impropriety discrediting an advocate's professional integrity or the legal profession, a breach of the care of duty vis-à-vis his or her client, or a failure to abide by the decisions of the qualifications committee and council of the advocates' chamber gives rise to disciplinary liability (Article 19 § 1). 22. The disciplinary sanctions available are: reprimand; warning; disbarment; or other sanctions as determined by the conference of the advocates' chamber (Article 18 § 2). 23. The Judges' Status Act stipulates in section 6.2 that, in addition to the performance of judicial functions, the president of a court: “(1) organises the work of the court; (2) determines the court's internal regulations on the basis of the model regulations adopted by the Council of the Judges of the Russian Federation and supervises compliance therewith; (3) distributes the workload between the deputy presidents and ... judges; (4) organises the judges' training; (5) carries out the general management of the court's office as follows: hires and dismisses the court's employees; distributes the workload between them; decides on [their] performance awards and disciplinary liability; organises training for the court's employees; (6) informs on a regular basis the judges and the court's employees of his [or her] activities and [the] activities of the court; and (7) performs other functions pertaining to the organisation of the court's work.” 24. The Russian Code of Civil Procedure (Article 21) provides that, should a challenge against a judge or panel of the judges be granted, the matter should be transferred to another judge or judicial panel within the same Regional Court. If the challenge to a judge or a judicial panel is granted and it is no longer possible to form a new judicial panel to consider the case, it should be transferred to the Supreme Court of Russia which will reassign it to another court. 25. The court should transfer the case to another court if, following a challenge to one or several judges or due to other reasons, it cannot consider the case. The transfer of the case is carried out by the relevant superior court (Article 33 § 2 (4) of the Russian Code of Civil Procedure). 26. Pursuant to decision no. 72-G03-6 of the Supreme Court of Russia of 1 April 2003, the Supreme Court of Russia granted a request lodged by the Chita Regional Court to transfer a case concerning a defamation action lodged by a judge of the Chita Regional Court. The case was transferred to the Irkutsk Regional Court. In particular, the Supreme Court of Russia noted as follows: “... [I]n these circumstances, the matter cannot be considered in accordance with the rules of jurisdiction due to objective reasons. Given that the action was lodged by K.I.V., a judge of the Chita Regional Court, [that court] upheld ... the challenge to the whole panel of the Chita Regional Court and, pursuant to Article 21 § 4 of the Russian Code of Civil Procedure, forwarded the case to the Supreme Court of Russia for determination of its jurisdiction. The Constitutional Court of Russia has noted in its ruling ... of 16 March 1998 that “under certain circumstances (for example, if a civil action is lodged against a judge or by a judge of the same court, and if the court which has jurisdiction over the matter does not function for one reason or another), the change of the jurisdiction of the matter is not only possible, but is sometimes necessary. Pursuant to [Article 33 § 2 (4) of the Russian Code of Civil Procedure], the court transfers the case to another court if, following the challenge to one or several judges or due to other reasons, the replacement of the judge or consideration of the case by the court becomes impossible. The transfer of the case is effected by a superior court.” | 1 |
dev | 001-59215 | ENG | GRC | CHAMBER | 2,001 | CASE OF PIALOPOULOS AND OTHERS v. GREECE | 3 | Violation of P1-1;Violation of Art. 6-1;Not necessary to examine Art. 13;Just satisfaction reserved | András Baka | 9. The first applicant is a Greek citizen, born in 1951 and living in Pefki in Attika. The second applicant is also a Greek citizen born in 1930 and living in Filothei in Attika. The third applicant is the first applicant’s stepbrother. He is a Greek citizen, born in 1964 and living in Athens. The fourth applicant is the first applicant’s sister. She is a Greek citizen, born in 1949 and living in Geneva. 10. On 11 February 1987 the first two applicants bought a plot of land in Neo Psihiko of a total surface of 7,723 m2 (block No 16 on the town plan). The first applicant became the owner of 83% of the plot and the second applicant of the rest. On 12 February 1987 the Prefecture (Nomarhia) of Eastern Attika gave the two applicants permission to demolish some old buildings that existed on the plot. 11. On 18 February 1987 the two applicants applied to the Prefecture for a permit to build a multi-storey shopping centre thereon. 12. On 25 February 1987 at a meeting of the Municipal Council of Neo Psihiko the mayor informed the councillors that urgent action had to be taken to block the proposed development and accepted that unusual means were being used to forestall the delivery of the permit. However, a councillor drew the mayor’s attention to the fact that the municipality lacked adequate means to expropriate the applicants’ plot. 13. On 1 June 1987 the Prefect of Eastern Attika decided not to issue any new building permits in respect of commercial premises of a certain size (buildings exceeding 1/4 of the maximum authorised size) in Neo Psihiko for a year (decision no. 10311/1987 published in the Official Gazette on 10 June 1987). He exempted commercial premises for which an application had already been lodged, provided that the file was “complete” in accordance with the presidential decree of 8 September 1983. 14. On 5 June 1987 the Ministry for the Environment, Town Planning and Public Works advised the first two applicants that the file which they had submitted together with their application for a building permit was “complete”. Given the Prefect’s decision of 1 June 1987, the file “would continue to be considered complete pending resumption of the delivery of new building permits”. 15. On 31 July 1987 the Prefect of Eastern Attika decided “to extend the freeze on new building licences in respect of block No. 16 in Neo Psihiko by six months as from 13 September 1987”. 16. On 1 March 1988 the Prefect decided to change the authorised use of the applicants’ plot from development land to park land (decision no. 13580/277/87/1988 published in the Official Gazette on 24 March 1988). Following this decision, the first two applicants requested the town planning authorities of the prefecture to decide who should compensate them for the expropriation of their plot of land. On 16 June 1988 the town planning authorities decided that the applicants should be expropriated by, among others, the Municipality of Neo Psihiko (act no. 51/88). The municipality appealed to the Prefect who, on 26 September 1988, confirmed act no. 51/88 of the town planning authorities and ordered the municipality to compensate the two applicants in respect of 5,697 m2. The municipality appealed against the prefect’s decision of 26 September 1988 to the Secretary General of the Ministry for the Environment, Town Planning and Public Works claiming that it should not bear on its own the cost of compensating the applicants for the 5,697 m2 in question. On 4 January 1989 the Secretary General confirmed the decision of 26 September 1988 of the prefect (decision no. 84888/4910/1989). 17. On 19 January 1989 the first two applicants asked the single-member first instance civil court (monomeles protodikio) of Athens provisionally to determine their compensation. On 16 November 1989 the court decided that the two applicants should receive 732,300,000 drachmas. 18. On 20 February 1989 the Municipality of Neo Psihiko applied to the Council of State (Simvulio Epikratias) for judicial review of decision no. 84888/4910/1989 of the Secretary General of the Ministry for the Environment, Town Planning and Public Works. The first two applicants intervened in favour of the Secretary General. 19. On 28 September 1989 the Secretary General of the Ministry for the Environment, Town Planning and Public Works approved a new town plan for Neo Psihiko, which was published in the Official Gazette on 9 October 1989. 20. On 21 May 1990 the Prefect of Eastern Attika decided to amend the new town plan of Neo Psihiko. It was provided that the applicants’ plot could only be used as a park and for underground parking. The decision was published in the Official Gazette on 5 June 1990. 21. On 31 July 1991 the first two applicants requested the Court of Appeal (efetio) of Athens to declare under Article 17 § 4 of the Constitution and Article 11 of legislative decree no. 727/1971 that the Prefect’s decision no. 13580/277/87/1988 concerning the expropriation had been revoked ipso jure on 16 May 1991 because the compensation fixed provisionally had not been paid within eighteen months from the first instance civil court’s decision of 16 November 1989. The State and the Municipality of Neo Psihiko were parties to the proceedings. On 8 November 1991 the Athens Court of Appeal acceded to the applicants’ request (decision no. 9779/1991). 22. On 21 and 26 February 1992 the Municipal Council of Neo Psihiko discussed the future of the applicants’ plot. On the second occasion, the mayor stated that he had been unable to conclude a loan in order to compensate the applicants in full. He also stated that the owners of neighbouring plots of land had informed him that they lacked the funds to pay part of the applicants’ compensation. Some councillors made proposals which would have lowered the value of the applicants’ plot. 23. On 4 March 1992 the first two applicants received a letter from the Municipality of Neo Psihiko referring to negotiations which had been conducted with them. The two applicants were invited to agree to a plan for the development of the plot. According to the plan, the municipality would acquire part of the plot and transform it into a park. The applicants would be allowed to construct a building with a two-storey underground garage. There would be shops on the ground floor and offices on the other floors. 24. On 23 March 1992 the Legal Council of State (Nomiko Simvulio tu Kratus) decided not to appeal in cassation against the decision of the Court of Appeal. On 13 May 1992 it informed the Prefecture of Eastern Attika and the Ministry for the Environment, Town Planning and Public Works accordingly and requested them to take the necessary steps to give effect to that decision. 25. On 6 July 1992 the Municipal Council of Neo Psihiko discussed the outcome of the negotiations with the first two applicants. The mayor invited the members of the council not to lose sight of the fact that the municipality risked finding itself in a position where it would be unable to pay full compensation to the two applicants for the expropriation of their plot. In the end, the council decided to request the prefecture to expropriate the plot (decision no. 96/92). It proposed the creation of a park, an underground garage and a public building. The two applicants protested. 26. On 8 July 1992 the first two applicants requested the Prefect of Eastern Attika formally to revoke decision no. 13580/277/87/1988, as he was required to do by the law. 27. On 30 November 1992 the Council of State examined the Municipality of Neo Psihiko’s application for judicial review of decision no. 84888/4910/1989 of the Secretary General of the Ministry for the Environment, Town Planning and Public Works. The first two applicants, who had intervened in favour of the Secretary General, claimed that this decision did not produce any legal effects because on 8 November 1991 (decision no. 9779/1991) the Court of Appeal had declared that it had been ipso jure revoked. However, the Council considered that, the decision of the appeal court notwithstanding, the administration was under an obligation formally to revoke decision no. 13580/277/87/1988 expropriating the plot. As long as this had not happened, decision no. 84888/4910/1989 could be judicially reviewed. Moreover, the Council considered that the Secretary General of the Ministry for the Environment, Town Planning and Public Works had illegally ordered the Municipality of Neo Psihiko to bear on its own the cost of compensating the applicants for the 5,697 m2 in question. The owners of other neighbouring property were liable as well. The Council of State, therefore, decided to quash decision no. 84888/4910/1989 (decision no. 3730/1992). 28. On 3 December 1992 the town planning authorities of the Prefecture of Eastern Attika asked the Municipality of Neo Psihiko whether it wished to expropriate the applicants’ plot again and drew its attention to the conditions for doing so. On 19 February 1993 the town planning authorities informed the municipality that, if it wanted the plot to be expropriated, a decision by the municipal council concerning the necessary funds should be adopted before 26 April 1993. On both occasions the town planning authorities informed the municipality that, if it did not take the necessary measures for a fresh expropriation, the prefecture would proceed to the revocation of the first expropriation as it was required to do by law. 29. On 23 March 1993 the first two applicants applied to the prefecture for a building permit. 30. On 12 April 1993 the Ministry for the Environment, Town Planning and Public Works informed the Prefecture of Eastern Attika that, decision no. 3730/1992 of the Council of State notwithstanding, the prefecture had to comply with decision no. 9779/1991 of the Athens Court of Appeal and officially revoke the expropriation decision. The ministry also considered that the amendment of the town plan of 21 May 1990 amounted to a new expropriation. According to the case-law of the Council of State, this would be lawful only if there was a serious town-planning need and the money for the compensation was readily available. 31. On 25 May 1993 the Municipal Council of Neo Psihiko requested the Prefect of Eastern Attika to re-issue act no. 51/88 on the persons liable to pay compensation taking into consideration decision no. 3730/1992 of the Council of State or else to adopt a new decision expropriating the applicants’ plot of land. The municipal council declared that it was ready to pay the compensation required in order for the expropriation to be completed (decision no. 87/1993). 32. On 17 June 1993 the first two applicants, with a view to reaching a friendly settlement, applied for a building permit offering, at the same time, to construct at their expense a public building for the municipality. 33. On 19 August 1993 the Prefect of Eastern Attika considered that the municipality’s case for a new expropriation was not convincing and decided to free part of the applicants’ plot for development (decision no. 26224/839/1993 published in the Official Gazette on 3 September 1993). On 20 October 1993 the Municipality of Neo Psihiko applied to the Council of State for judicial review of this decision. The first two applicants intervened in the proceedings in favour of the Prefect. 34. On 10 July 1995 the Council of State considered that its previous decision no. 3730/1992 could not affect the obligation of the Prefect of Eastern Attika to comply with decision no. 9779/1991 of the Athens Court of Appeal of 8 November 1991 and officially revoked the first expropriation decision. The Council of State found that the Prefecture of Eastern Attika had complied with the above-mentioned decision of the Court of Appeal by issuing decision no. 26224/839/1993. However, this decision had not taken into consideration the fact that the Municipality of Neo Psihiko had fully cooperated in the first expropriation procedure. Neither had it taken into consideration the fact that the main reason for the non-completion of the first expropriation procedure had been the dispute which had arisen as to who should have compensated the first two applicants. In the light of all the above, the Council found that the Prefect of Eastern Attika’s decision not to accede to the municipality’s request for a second expropriation did not contain adequate reasons. The Council of State, therefore, quashed decision no. 26224/839/1993 of the Prefect of Eastern Attika (decision no. 3927/95). 35. On 2 May 1996 the second applicant requested the Mayor of Neo Psihiko to provide him with a certified copy of the municipality’s budget and of the minutes of the meeting of the municipal council at which the budget had been approved. 36. On 9 May 1996 the town planning authorities of the Prefecture of Athens, which had taken over the functions of the Prefecture of Eastern Attika, informed the Municipality of Neo Psihiko that, since decision no. 26224/839/1993 of the Prefect of Eastern Attika had been quashed, it was still under an obligation to comply with decision no. 9779/1991 of the Athens Court of Appeal. It also invited the municipality to inform it within 30 days whether there existed a serious town-planning need for the expropriation of the applicants’ plot of land and whether there existed sufficient funds in the municipality’ budget for compensating the applicants. Finally, the prefecture warned the municipality that, in the absence of a prompt reply, it would change the authorised use of the applicants’ plot to development land. 37. The Mayor of Neo Psihiko replied to the Prefecture of Athens on 9 July 1996 requesting that the applicants’ plot should be expropriated for the following reasons. On the one hand, a number of supermarkets and banks had been recently built in the area, which attracted 5,000 persons and a lot of traffic every day. On the other hand, there were no parks or parking space. As a result, if a new development were authorised, the situation would become intolerable. The mayor referred to the Prefect of Eastern Attika’s decision of 21 May 1990 according to which the applicants’ plot could only be used as a park and for underground parking. The mayor also informed the prefecture that provision had been made for 450,000,000 drachmas in the municipality’s budget for 1996 and an additional sum would be made available in 1997. 38. On 27 September 1996 the Prefecture of Athens asked the municipality to clarify within ten days whether the sum of 450,000,000 drachmas had been earmarked for the expropriation of the applicants’ plot, what was the estimated total cost of the expropriation, whether the additional sum required existed and, if not, which were the sources from which it could be obtained and what were the prospects of obtaining it. The municipality was again threatened with a decision changing the authorised use of the applicants’ land. 39. On 16 November 1996 the first two applicants invited the Prefect to comply with decision no. 3927/1995 of the Council of State and decision no. 9779/1991 of the Athens Court of Appeal. 40. Having received no reply, on 6 February 1997 the second applicant requested the Prefecture of Athens to inform him of the conditions for the development of his plot in Neo Psihiko. On 14 February 1997 the Prefecture of Athens informed the second applicant that, according to the decision of the Prefect of Eastern Attika of 21 May 1990, the plot could only be used as a park and for underground parking. Decision no. 26224/839/1993 of the Prefect of Eastern Attika had been quashed by the Council of State. When the two applicants had originally applied for a building permit there were no restrictions on their plot of land. However, on 1 June 1987 and 31 July 1987 the prefect of Eastern Attika had decided to suspend the delivery of building permits of the kind requested by the two applicants. 41. On 14 October 1997 the second applicant applied to the town planning authorities of the prefecture for permission to construct an open-air parking area on his plot. The authorities turned his application down referring, inter alia, to the decision of the Prefect of Eastern Attika of 21 May 1990. On 17 October 1997 the second applicant applied to the town planning authorities for permission to construct an underground garage. On 4 November 1997 the authorities replied that the garage would be built by the appropriate organ after the conclusion of the expropriation. 42. Following a further query by the first two applicants, on 11 December 1997 the Prefecture of Athens informed them that, according to the decision of the Prefect of Eastern Attika of 21 May 1990, their plot of land could only be used as a park and for underground parking and that the decision in question had not been revoked. 43. On 19 December 1997 the first applicant transferred 20.75% of the plot to the third applicant and 20.75% to the fourth applicant. 44. On 16 March 1998 the town planning authorities of the Prefecture of Athens informed the Legal Council of State that the decision of 21 May 1990 of the Prefect of Eastern Attika amounted to an expropriation of the applicants’ plot. However, when the town planning authorities wrote to the Municipality of Neo Psihiko on 9 May 1996, they were not aware of this decision. Following the quashing of decision no. 26224/839/1993 of the Prefect of Eastern Attika by the Council of State, the use of the applicants’ plot is governed by the decision of 21 May 1990. The town planning authorities, further to a request by the Municipality of Neo Psihiko, were in the course of determining those liable to pay compensation because of the expropriation. 45. According to decision no. 3284/86 of the Council of State, an expropriation that has been revoked may be re-imposed only if there is a serious town-planning need and the authorities are able to pay appropriate compensation immediately. In 1986 the Ministry for the Environment, Town Planning and Public Works issued a circular informing the authorities of this development (circular no. 141/1986). 46. According to the case-law of the Council of State, amendments to town plans must be published in the Official Gazette together with a detailed plan. Otherwise they are null and void (decisions nos. 488/91 and 489/91). | 1 |
dev | 001-75680 | ENG | FIN | CHAMBER | 2,006 | CASE OF LEHTINEN v. FINLAND (No. 2) | 4 | Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 7. The applicant was born in 1950 and lives in Järvenpää. 8. The applicant’s home as well as the office premises of his various companies were searched on 7, 9 and 14 February 1995 and various materials were seized. The search warrants referred to an investigation into debtor’s dishonesty involving the company Lehtikarin Kirjapaino Oy as well as a book-keeping offence. Both offences were suspected to have been committed by the applicant between 5 June 1991 and 25 May 1994. 9. On 15 February 1995 the public prosecutor questioned the applicant in connection with other criminal proceedings which were pending against the applicant before the District Court (käräjäoikeus, tingsrätten) of Tuusula in respect of acts allegedly committed in April 1992 relating to the company UYP-Sijoitus Oy (“U.”). 10. On 27 April 1995 the estates of three wound-up companies, including U, reported an offence against the applicant for alleged offences of debtor’s dishonesty. 11. On 2 April 1996 the applicant was interrogated by the police. On 28 November 1996 he was charged with the offence of debtors’ dishonesty, allegedly committed between 7 and 23 April 1992. The estate of the wound-up company U. was indicated as one of the complainants. 12. On 12 February 1997 he received a summons to appear before the District Court on 19 March 1997. The summons had wrongly indicated the Judicial Building in Vantaa as the hearing venue instead of Tuusula. On 1 April 1997 the applicant was brought to the hearing of the District Court of Tuusula, the court having found that the applicant had no legal excuse for not having been present at the first hearing. 13. At the hearing on 27 November 1997 the applicant demanded that the charges against him be adequately particularised. 14. In a further letter of indictment dated 29 April 1998 the prosecutor presented alternative charges of aggravated tax fraud and aiding and abetting that crime. 15. On 8 July 1998 the applicant initiated civil proceedings against bank V. and requested that they be joined to the criminal proceedings. The District Court rejected this request. 16. At the hearing on 27 July 1998 the prosecutor, basing himself on a letter of indictment of the same day, specified the charges. 17. On 31 December 1998, at its 13th hearing, the District Court issued its judgment. It convicted the applicant of debtor’s dishonesty and sentenced him to eleven months’ unconditional imprisonment. He was ordered to pay some 10,000,000 Finnish Marks (FIM, almost 1,700,000 euros (EUR)) in damages. 18. The applicant appealed, appending his own writ of appeal to that of his counsel, P.V. In addition, he lodged numerous further submissions both within and outside the requisite time-limit, the last one in February 2002. Originally, the applicant requested an oral hearing and, in any case, that the Court of Appeal should reduce his sentence. In December 2001 he requested that the case be referred back to the District Court to be decided by a different composition of judges or, in the alternative, that the charges against him be dismissed as one judge had allegedly been partial and he had been refused leave to examine a witness. 19. In October 2001 the Court of Appeal, as requested, cancelled P.V.’s appointment and appointed P.I. as the applicant’s new legal aid counsel. 20. In its judgment of 15 March 2002 the Court of Appeal rejected his appeal and increased the sentence to a term of imprisonment of one year and two months. Having regard to the contents of the applicant’s appeal as filed within the time-limit, the Court of Appeal saw no need for an oral hearing. The court took into account three of the applicant’s further submissions as well as four submissions lodged by his new counsel, in so far as the requests therein had not deviated from his original appeal as filed within the requisite time-limit. Insofar as the applicant had alleged procedural defects the Court of Appeal considered most of his submissions belated as they had not been lodged within six months of the judgment of the District Court. 21. On 3 September 2002 the Supreme Court refused the applicant leave to appeal. 22. Under Chapter 16, Article 4 (2) of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken, as amended by Act no. 1052/1991 and in force at the relevant time) any party who considered that the proceedings before a district court were being unjustifiably delayed by an adjournment had the right to lodge a complaint with a Court of Appeal within 30 days from the date of the adjournment. Under the said provision the district court could adjourn the case upon request by a party, for example if the said party wished to adduce further evidence. The court could not adjourn the hearing proprio motu save on special grounds. Chapter 16, section 4 (2) was repealed with effect from 1 October 1997, when new provisions generally prohibited adjournments. 23. Chapter 6 of the Penal Code (rikoslaki, strafflagen, Act no. 515/2003) was amended with the effect as of 1 January 2004. Section 6, Article 7 sets out the grounds mitigating the punishment that are to be taken into consideration, including “a considerably long period that has passed since the commission of the offence”, if the punishment that accords with established practice would for this reason lead to an unreasonable or exceptionally detrimental result. 24. The Government referred to the Supreme Court’s precedent KKO 2005:73 concerning the relevance of the length of the proceedings when determining a sentence. In that case the defendants were sentenced to prison for one year and four months for aggravated tax-fraud. Their sentences were mitigated because of the length of the proceedings, which was 10 years. | 1 |
dev | 001-102272 | ENG | SVK | COMMITTEE | 2,010 | CASE OF IVAN v. SLOVAKIA | 4 | Violation of Art. 6-1 | Ján Šikuta;Lech Garlicki | 4. The applicant was born in 1954 and lives in Žabokreky. 5. 6. On 9 June 1995 the applicant filed an action with the Martin District Court. He claimed the ownership and restitution of a motor car. 7. On 10 October 2003 the applicant modified his claim and asked for leave to join another person as a defendant. The District Court granted the request. 8. On 5 December 2003 the District Court remitted the case file to the Žilina Regional Court which decided on the defendant's appeal on 26 January 2004. 9. On 13 July 2004 an expert was asked to prepare an opinion. The expert opinion was submitted on 27 April 2006. 10. On 8 June 2006 the Constitutional Court found that the District Court had violated the applicant's right under Article 6 § 1 of the Convention to a hearing within a reasonable time. 11. The Constitutional Court held that the case was not particularly complex and that the applicant by his conduct had not contributed to the length of the proceedings. Substantial delays imputable to the District Court had occurred. The proceedings had lasted 11 years and no decision had been delivered on the merits. 12. The Constitutional Court awarded 80,000 Slovakian korunas (SKK) to the applicant as just satisfaction in respect of non-pecuniary damage. It also ordered the District Court to avoid any further delay in the proceedings and to reimburse the applicant's legal costs. 13. On 12 October 2006 the District Court dismissed the applicant's claim. The applicant appealed. 14. On 31 October 2007 the Žilina Regional Court upheld the judgment. The decision became final on 27 February 2008. | 1 |
dev | 001-22078 | ENG | DEU | ADMISSIBILITY | 2,001 | VOLKMER v. GERMANY | 3 | Inadmissible | Ireneu Cabral Barreto | The applicant, Mr Roland Volkmer, is a German national, who was born in 1941 and lives in Berlin. He was represented before the Court by Mr Meyer-Dulheuer, a lawyer practising in Berlin. The facts of the case, as submitted by the parties, may be summarised as follows. From 1966 until 1977, and from 1981 until 1993, the applicant taught German, Latin and, from 1968 onwards civic education (Staatsbürgerkunde) in secondary schools, first in the German Democratic Republic (“the GDR”), and as from 1990 in the Federal Republic of Germany (FRG). From 1970 to 1977 and from 1983 to 1989 he also served as honorary secretary (ehrenamtlicher Parteisekretär) of the East German Socialist Unity Party (Sozialistische Einheitspartei Deutschlands - “the SED”) at his school. Between 1 March 1977 and 1 August 1981 the applicant, instead of teaching at school, was employed on a full-time basis in the executive committee of the district administration of the SED (hauptamtlicher politischer Mitarbeiter der Kreisleitung der SED). After the German reunification the applicant became a teacher in the public service of the State of Berlin. Subsequent to the publication of a book containing statements of a former pupil of the applicant, alleging that the latter, in his capacity as SED representative, had asked him to attend a church conference on ecology about which he had later been interrogated by an official of the district council, the applicant was interviewed on this incident by the district councillor for education and culture (Bezirkstadträtin der Abteilung Bildung und Kultur) of Berlin-Friedrichshain on 29 August 1991. The applicant confirmed that he had asked his pupil, a secretary of the SED’s youth organisation (FDJ), to attend the conference, yet without being aware of any conspiratorial context or a later interrogation of the pupil. As a consequence of the interview, the district councillor decided to assign the applicant to another school within BerlinFriedrichshain and reserved the right to take further steps. In a letter to the district councillor, dated 29 September 1991, the applicant stated that the participation of his former pupil in the church conference had occurred on a voluntary basis without any abuse of the teacher-student relationship. The aim of this action had been to confront the pupil with opinions contrary to his own. In any event, he had not been aware of any such purpose as the observation of political opponents. On 7 April 1992 the applicant signed a new contract with the State of Berlin adjusting the terms of his employment to the new political situation in Germany. On 5 November 1992, the Special Commissioner of the Government for « person-related » documents of the former State Security of the GDR (Sonderbeauftragter der Bundesregierung für die personenbezogenen Unterlagen des ehemaligen DDR-Staatsicherheitsdienstes), acting on a request by the State of Berlin, informed the authorities that the applicant had been registered as contact person since 1970 in files of the Ministry of State Security (Ministerium für Staatssicherheit, “the MSS”). After having signed a declaration of confidentiality, he had been interviewed on five occasions about certain persons by MSS-officials. However, the applicant had not prepared any reports on individuals. In June 1971 the MSS had decided to cease cooperation with the applicant after only a few meetings due to a lack of willingness to cooperate on his part. On 25 January 1993 the applicant was heard once again by the district council (Bezirksamt) of Berlin-Friedrichshain in order to clarify why, in an official questionnaire handed out to him in January 1991, he had replied “no” to the questions whether he had carried out any activity for the MSS and whether he had signed a declaration to that effect. The applicant stated that his answers had been correct since his contacts with the MSS had led to nothing. Moreover, he had never signed a declaration that he had not worked for the MSS but merely a declaration of confidentiality. An offer by the district council to cancel his contract of employment by means of a friendly settlement was rejected by the applicant. On 29 January 1993, the applicant was suspended from his teaching functions. After the main staff council for public employees (Hauptpersonalrat) had indicated that it would only accept an “ordinary dismissal” (ordentliche Kündigung) within the delays prescribed by law, the applicant was served with a notice of termination of his employment contract dated 26 May 1993, and taking effect on 1 August 1993. The dismissal was based on Chapter XIX, Topic A, section III, no 1, § 4, of Annex I to the Unification Treaty (see relevant domestic law and practice below). The notice of termination stated as the reason for the dismissal that the public employer could not reasonably be expected to continue the applicant’s employment. Firstly, the applicant had failed to rebut the charge that he had been active for the MSS. Moreover, as a full-time member of the executive committee of the district administration of the SED, and an active supporter of and collaborator with the former East German one-party system, he could not be considered suited to uphold the free democratic constitutional system in front of his pupils. This was also reflected by the fact that he had used at least one pupil for spying on political opponents and by the lack of awareness of guilt he had shown during the interview of 25 January 1993. Finally, the applicant had failed to indicate his contacts with the MSS in the official questionnaire. By a judgment of 6 October 1993, the Berlin Labour Court (Arbeitsgericht Berlin) held that the applicant’s employment had not been terminated by the dismissal of 26 May 1993, in the absence of any valid grounds for dismissal. In particular, the applicant could not be considered unsuited to teach German and Latin because of his former functions within the SED. Furthermore, the State of Berlin had forfeited its right to terminate the applicant’s employment after it had continued his employment following the first interview with the applicant in August 1991. The applicant had been justified in denying any activity for the MSS in the official questionnaire because the attempt by the MSS to make him cooperate had remained unsuccessful. By a judgment of 16 March 1994 the Berlin Higher Labour Court of Berlin (Landesarbeitsgericht Berlin) reversed the judgment of the Labour Court. Although the Court held that the applicant had not cooperated with the MSS, and that his answers in the official questionnaire were correct since the inquiry was not whether he had had contact with the MSS but whether he had carried out activities for it, it found the dismissal to be justified on account of the applicant’s unsuitability to continue teaching. It held that his full-time employment as an SED official from 1977 to 1981 gave rise to doubts whether he was in a position to dispense the values of the German Basic Law (Grundgesetz) to his pupils. Similarly, his honorary function as an SED representative at his school from 1970-1977 and again from 1983-1989 reflected his identification with the political system of the GDR. Moreover, the fact that the applicant had asked one of his pupils, on the orders of the executive committee of the district administration of the SED, to attend a church conference in the knowledge that the pupil would subsequently be interrogated about that conference by the East German authorities, constituted an abuse of the teacher-pupil relationship for the purpose of spying on political opponents. The Court considered this behaviour to be incompatible with the educational aims of freedom of opinion and tolerance. The applicant’s argument that his intention had been to confront the pupil with opinions opposite to his own was, in the Court’s view, a mere excuse. Furthermore, the Court found that the public employer had not forfeited the right to dismiss the applicant after it had assigned him to another school because this measure was in the nature of a first and by no means final reaction to the interview with the applicant held on 29 September 1991. At that time the applicant had been explicitly informed that further steps could be taken against him and he could have expected, according to the practice in similar cases, a further consultation of the Special Commissioner of the Government in the matter. Similarly, the renewal of his contract in April 1992 was to be seen in the general context of readjusting the terms of employment of former public servants of the GDR and thus was without prejudice to the process of reviewing the personal involvement of such State employees with the political system of the GDR. By a judgment of 16 November 1995 the Federal Labour Court (Bundesarbeitsgericht) held that the termination of the applicant’s employment was effective as of 1 January 1994 and dismissed the remainder of his appeal against the Higher Labour Court’s judgment of 16 March 1994. It found that the applicant lacked the personal aptitude required for public service. Contrary to the case where a teacher had been dismissed for membership of the German Communist Party, which dismissal had been found to be in violation of Article 10 of the Convention (Vogt v. Germany judgment of 26 September 1995, Series A no. 323), here the applicant’s dismissal was not only based on his SED membership and his political beliefs but on his professional and honorary functions within that party, which reflected his especially strong identification with the SED system and indicated his unfitness to uphold the free democratic constitutional system in front of his pupils. Indeed, as party secretary, it was his duty to implement the ideological aims of the SED at school (“die ideologische Umsetzung der Ziele der SED in der Schule”). His unsuitability was also shown by the fact that he had asked a pupil to spy on meetings of ideological opponents. By a decision of 1 October 1997 the Federal Constitutional Court (Bundesverfassungsgericht) declined to entertain the applicant’s constitutional complaint against the above judgments. Paragraphs 1 to 4 of Chapter XIX, Topic A, Section III, no. 1, of Annex I to the German Unification Treaty provide that civil servants of the GDR are integrated into the public service of the FRG by substituting in the existing work relations the Federal authorities and the Länder of the FRG for the authorities of the GDR. As civil servants of the GDR were part of an institution that did not satisfy the criteria of a State governed by the rule of law, special dismissal provisions were inserted in Paragraphs 4 to 6 of Chapter XIX, Topic A, Section III, no. 1, of Annex I to the Treaty. Paragraph 4 of Chapter XIX, Topic A, Section III, no. 1, of Annex I to the German Unification Treaty accordingly provides : “Ordinary dismissal from an employment relationship in the public administration is permissible if 1. the employee does not comply with the requirements on account of a lack of professional qualification or personal aptitude (...)” “Die ordentliche Kündigung eines Arbeitsverhältnisses in der öffentlichen Verwaltung ist zulässig, wenn 1. der Arbeitnehmer wegen mangelnder fachlicher Qualifikation oder persönlicher Eignung den Anforderungen nicht entspricht (...)” Paragraph 5 of the same Chapter reads as follows: “A valid reason for an extraordinary dismissal exists, in particular, if the employee (...) 2. cooperated with the former Ministry of State Security/Agency for National Security [of the German Democratic Republic] and if the public employer can therefore not reasonably be expected to continue the employment relationship.” “Ein wichtiger Grund für eine ausserordentliche Kündigung ist insbesondere dann gegeben, wenn der Arbeitnehmer (...) 2. für das frühere Ministerium für Staatssicherheit/Amt für nationale Sicherheit tätig war und deshalb ein Festhalten am Arbeitsverhältnis unzumutbar erscheint”. According to the case-law of the Federal Constitutional Court, a civil servant has a duty to uphold the free democratic constitutional system in everything he does (BverfG, Constitutional Court Decisions, vol. 2, p. 1). In particular, a school teacher is required to instil the fundamental values of the German Basic Law in his pupils and to ensure loyalty to those values in times of crisis as well as in situations of conflict (BVerfG, decision of 22 May 1975 - Ref. no. 2 BvL 13/73 - BverfG, Constitutional Court Decisions, vol. 39, p. 334). | 0 |
dev | 001-23193 | ENG | AUT | ADMISSIBILITY | 2,003 | FISCHER v. AUSTRIA | 1 | Inadmissible | Christos Rozakis | The applicant, Mr Franz Fischer, is an Austrian national, who was born in 1974 and lives in Wilhelmsburg. He was represented before the Court by Mr S. Gloss, a lawyer practising in St. Pölten. The facts of the case, as submitted by the applicant, may be summarised as follows. On 29 May 2001 the European Court of Human Rights delivered a judgment in a case which had been introduced by the applicant (Franz Fischer v. Austria, no. 37950/97, unreported). It found a violation of Article 4 of Protocol No. 7 in that the applicant had consecutively been tried and punished for two offences containing the same essential elements, first by the administrative authority for the offence of drunken driving under section 5 (1) and 99 (1) (a) of the Road Traffic Act and, after that decision had become final, by the Criminal Court for causing death by negligence with the special element under Article 81 § 2 of the Criminal Code of “allowing himself to become intoxicated”, whereby intoxication is irrebuttably presumed where a person’s blood alcohol level is above 0.8 grams per litre. On 30 May 2001 the applicant filed an application with the Supreme Court under Article 363a of the Code of Criminal Procedure (see below), requesting a retrial. On 30 October 2001 the applicant requested the Supreme Court to hold a hearing. On 22 November 2001 the Supreme Court dismissed the application without holding a hearing. The Supreme Court found that the requirements of Article 363a of the Code of Criminal Procedure were not met, as the Franz Fischer v. Austria judgment had not established that there had been a violation of Article 4 of Protocol No. 7 “on account of a decision of a criminal court”. In reaching this conclusion the Supreme Court had regard to the Court’s reasoning whereby the question whether or not the non bis in idem principle was violated concerned the relationship between the two offences at issue but not the order in which the two sets of proceedings were conducted, and that the Contracting State remained free to determine which of the two offences was to be prosecuted. The Supreme Court’s decision was served on 17 January 2002. Under the heading “retrial” (Erneuerung des Strafverfahrens) the Code of Criminal Procedure (Strafprozeßordnung) provides as follows: “1. If it is established in a judgment of the European Court of Human Rights that there has been a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms (Bundesgesetzblatt [Official Gazette] no. 210/1958) or of one of its Protocols on account of a decision or order of a criminal court, a retrial shall be held on application in so far as it cannot be ruled out that the violation might have affected the content of a criminal court’s decision in a manner detrimental to the person concerned. 2. All applications for a retrial shall be decided by the Supreme Court. ...” “1. On an application for a retrial, the Supreme Court shall deliberate in private only where the Procurator General or the judge rapporteur proposes that a decision be taken on one of the grounds set out in paragraphs 2 and 3. 2. Where the Supreme Court deliberates in private, it may refuse an application ... if it unanimously considers the application to be manifestly ill-founded. ...” | 0 |
dev | 001-88665 | ENG | RUS | CHAMBER | 2,008 | CASE OF AKULININ AND BABICH v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect) | Anatoly Kovler;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva | 6. The applicants were born in 1983 and 1981 respectively and live in Moscow. 7. On 14 September 2000 the first applicant was arrested on suspicion of having hijacked a car together with the second applicant and a Mr F., and was brought to Fili-Davydkovo police station. According to the first applicant, three police officers beat him severely, kicking him in the head and back, to force him to confess to twenty-five hijacking incidents which had occurred in that district of Moscow. After his resistance had worn down, the first applicant wrote a statement, prompted by the police officers, confessing to a car theft. The record of his arrest was drawn up at 3 p.m. 8. On the same day police officers arrested the second applicant. The second applicant submitted that on his arrest he had been placed in the boot of a car and had been brought to Fili-Davydkovo police station, where police officers had beaten him up and had forced him to confess to a car theft. 9. On 15 September 2000 the acting Kuntsevo district prosecutor questioned the applicants about their participation in hijacking incidents and authorised their release on their own recognisance. According to the Government, the applicants did not complain to the prosecutor about any police brutality. 10. On 16 and 18 September 2000 the applicants were examined in hospital no. 79 in Moscow. The first applicant was diagnosed with a compression fracture of the bodies of the 1st and 2nd vertebrae and the second applicant was diagnosed with injuries to the right side of the chest and neck. The first applicant was suffering from severe back pain, for which he was prescribed treatment and given a medical corset. For approximately four months he wore the corset and underwent medical treatment. 11. The applicants complained to the Kuntsevo district prosecutor that they had been ill-treated in the police station after their arrest. In November 2000 the Kuntsevo district prosecutor’s office initiated an inquiry into the applicants’ complaints. 12. On 22 January 2001 a senior assistant of the Kuntsevo district prosecutor declined to institute criminal proceedings against the police officers, finding no criminal conduct in their actions (Article 5 § 2 of the Code of Criminal Procedure). The decision read as follows: “On 16 and 18 September 2000 the Fili-Davydkovo [police department] was informed by hospital no. 79 in Moscow that on those dates Mr F., [the second applicant] and [the first applicant] had on their own initiative requested medical assistance at hospital no. 79, where Mr F.... was diagnosed with..., [the second applicant] was diagnosed with an injury to the neck and the right side of the chest and [the first applicant] was diagnosed with a compression fracture of the 1st and 2nd vertebrae. Mr F., [the second applicant] and [the first applicant] explained that on 14 September 2000 they had been beaten up by police officers in Fili-Davydkovo police station. ... [The first applicant], a minor, questioned in the presence of his mother, stated that on the night on 14 September 2000 he, Mr F. and [the second applicant] had hijacked two cars...; he had been arrested by police officers and brought to the duty unit of Fili-Davydkovo police station; after his arrest, on 14 September 2000 at approximately 8.30 a.m. a police officer, whom [the first applicant] could not name, had entered the duty unit of Fili-Davydkovo police station and had taken [the first applicant] to his office on the second floor. In the course of the interview the police officer had urged [the first applicant] to confess to having committed a crime, kicked him several times in the small of the back and at the same time demanded that [the first applicant] confess to several other hijackings which he had not committed. Other police officers in plain clothes had entered the office where [the first applicant] was being questioned; they had hit [the first applicant] in different parts of his body and had demanded that he name the persons with whom he had committed criminal offences on 14 September 2000 and indicate their addresses. After his written confession ... had been obtained, he had been brought back to the duty unit of FiliDavydkovo police station. On 15 September 2000, after a measure of restraint in the form of a written undertaking had been imposed, [the first applicant] had been sent home. On 18 September 2000 he had sought medical assistance at hospital no. 79, where he had been diagnosed with a compression fracture of the 1st and 2nd vertebrae and had undergone treatment until 19 December 2000. According to forensic medical report no. 7867/17801 of the Bureau of Forensic Medicine, when [the first applicant] requested a medical examination no injuries were recorded on his body and the diagnosis of ‘an injury of the lumbar spine’ was not confirmed by objective clinical data and could not be subjected to forensic medical identification. When questioned on 15 September 2000 by the acting Kuntsevo district prosecutor, [the first applicant] stated that on 14 September 2000 he had been arrested by police officers on suspicion of having stolen cars in the district under the jurisdiction of the Fili-Davydkovo police department. He did not complain about the conduct of the police officers, stating that the police officers had not used force or any other pressure against him. The mother of the minor, [the first applicant], Ms A., who was questioned in the presence of Ms L., a lawyer from no. 10 Bar Association, stated that on 14 September 2000 at approximately 6 p.m. she had received a phone call from Fili-Davydkovo police station and had been informed that her son had been arrested on suspicion of a crime and had been kept in Fili-Davydkovo police station. On 14 September 2000 at approximately 7.30 p.m., Ms A. arrived at Fili-Davydkovo police station. From a conversation with an investigator she learned that her son had been arrested for having committed a hijacking in the district under the jurisdiction of the Fili-Davydkovo police department. The investigator allowed her to see and give food to her son. During a conversation in Fili-Davydkovo police station on 14 September 2000 her son did not complain about the state of his health and did not say anything about being beaten by police officers. On 15 September 2000 at 5.50 p.m. Ms A. took her son home... On 16 September 2000 her son complained to her of pain in his back and claimed that he had been beaten up by police officers in Fili-Davydkovo police station. Ms A. did not attribute sufficient weight to her son’s complaints and decided to treat him herself. On 18 September 2000 she and her son sought medical assistance at hospital no. 79, where he was diagnosed with a compression fracture of the 1st and 2nd vertebrae. Her son underwent treatment and was on sick leave from 18 September to 19 December 2000. ... [The second applicant] gave similar explanations, asserting that on 16 September 2000 he had sought medical assistance at hospital no. 79, where he had been diagnosed with an injury to the neck and [an injury] to the right side of the chest; he had not requested sick leave. He did not make any claims in respect of the police officers. An investigator from the Fili-Davydkovo police department, ... Mr E., stated that on 14 September 2000, ... [the first applicant] had been arrested at 3 p.m. ... and [the second applicant] at 9 p.m.; they had been questioned as suspects in relation to criminal case no. 6533 ... in the presence of a lawyer, Mr M. In the course of the interview the arrested persons did not make any complaints in respect of the police officers and did not complain about the state of their health; after a measure of restraint in the form of a written undertaking had been imposed, they were released on 15 September 2000. Mr L., a police officer at Fili-Davydkovo police station, explained during questioning that ... he had not questioned [the first and second applicants], the arrested persons, and had not obtained any written statements from them; he had not used any physical or psychological pressure against them. Another police officer, Mr Sh., stated during questioning that on 15 September 2000 he had been in his office, no. 23. An arrested person ([the first applicant], as it transpired later) suspected of having committed a hijacking had been there. The police officers, whose last names he did not know because he had worked in the police station for only about two months, had questioned [the first applicant]. The police officers asked [the first applicant] questions pertaining to car thefts; they had not used any physical, psychological or other pressure against [the first applicant]. A junior police officer of the Fili-Davydkovo police department, Mr Ma., gave a similar statement, asserting at the same time that when [the second applicant] had been brought from [his] place of residence he had not put him under any physical, psychological or other pressure. The arrestees had voluntarily, without duress, given statements pertaining to hijackings committed in the district under the jurisdiction of the Fili-Davydkovo police department. Another police officer, Mr A., stated when questioned that on 14 September 2000 he had had a conversation with [the first applicant], who had informed him that he, Mr F. and [the second applicant] had stolen cars in the district covered by the police department. When he had talked to [the first applicant], he had not used any physical or other pressure against [him]. Moreover, he, Mr A., had been involved in [the second applicant’s] transfer [to the police station]. During the transfer Mr A. and the other police officers had not used any force or other pressure against the arrestees. After [the second applicant] and Mr F. had been brought to the police station, Mr A. had talked to them in his office about car thefts committed by them. Mr F. and [the second applicant] had voluntarily, without duress, confessed to two hijackings in the district of the police department. Mr A. had not used physical, psychological or other pressure against the arrestees. Hence, no objective data and evidence confirming the use of physical or other pressure by the police officers against [the first and second applicants] ...was gathered during the inquiry. In view of the above, [I] conclude that there is no indication of a criminal offence ... in the police officers’ actions. However, the inquiry established that a minor, [the first applicant], had been held for a protracted period in Fili-Davydkovo police station before an investigator took the decision to detain [the applicants] ... Following [the first applicant’s arrest] at 3 p.m.... and [the second applicant’s] arrest at 9 p.m., they were held in the duty unit of Fili-Davydkovo police station and were not transferred to the detention unit at Krylatskoye police station. On discovering these violations of the law the prosecutor’s office issued a decision addressed to the head of the Fili-Davydkovo police department.” The decision of 22 January 2001 was not served on the applicants. 13. The applicants were committed to stand trial before the Kuntsevo District Court of Moscow (“the District Court”). On 9 February 2001 the District Court, composed of the presiding judge B. and two lay assessors P. and F., remitted the criminal case for additional investigation and dismissed the request for release of the second applicant, who had been remanded in custody on 22 November 2000. The District Court held that “the defendants had committed serious criminal offences” and that there were no grounds for releasing the second applicant. The lawyer for the first applicant, Ms Moskalenko, appealed against that decision, but later withdrew her statement of appeal. 14. On 24 May 2001 the applicants’ lawyers complained to the Kuntsevo District Court about the beating in the police station. They noted that a similar complaint about police brutality had been raised before the Kuntsevo district prosecutor’s office. The lawyers insisted that the results of the prosecutor’s inquiry were unknown to them and their clients and asked the District Court to request the materials from the inquiry. 15. On 25 May 2001 the trial began. The District Court was composed of the presiding judge B. and two lay assessors, B. and G. The applicants’ lawyers, relying on Articles 59 § 3 and 61 of the Code of Criminal Procedure, unsuccessfully sought the removal of the presiding judge, alleging her personal bias against the applicants. The applicants and their lawyers, referring to the hospital reports recording the applicants’ injuries, further complained to the District Court about the illtreatment occurring in the police station on 14 September 2000. 16. On 28 May 2001 the Kuntsevo District Court found the applicants guilty of aggravated car theft and sentenced them to three years’ imprisonment. As regards the allegations of police brutality, the District Court noted that the investigating authority had conducted an inquiry into the applicants’ complaints about the beatings and had decided not to institute criminal proceedings because the allegations had not been proven. 17. The applicants and their lawyers appealed. In their statements of appeal they complained, inter alia, that the applicants’ conviction contravened the principle of the presumption of innocence, as the presiding judge B. had already found them guilty in her decision of 9 February 2001, that the District Court had not examined their ill-treatment complaints thoroughly, that it had not asked the investigating authorities to produce the case file relating to the inquiry into the allegations of police brutality, and that they had learnt about the prosecutor’s decision of 22 January 2001 only during the trial proceedings. 18. On 17 July 2001 the Moscow City Court upheld the conviction, reduced the applicants’ sentence to two years’ imprisonment and ordered the first applicant’s conditional release, noting that his injury, namely a compression fracture of the 1st and 2nd vertebrae, warranted his release. The City Court held that the applicants’ complaints about the beatings had been “unfounded because these allegations were examined by the prosecutor’s office and then by the [District] Court, and were correctly dismissed because they had not been proven”. It further stated that the District Court had not committed any violations of criminal procedural law. 19. The RSFSR Code of Criminal Procedure (in force until 1 July 2002, “the CCrP”) established that a criminal investigation could be initiated by an investigator on a complaint by an individual or on the investigative authorities’ own initiative, where there were reasons to believe that a crime had been committed (Articles 108 and 125). A prosecutor was responsible for overall supervision of the investigation (Articles 210 and 211). He could order specific investigative actions, transfer the case from one investigator to another or order an additional investigation. If there were no grounds to initiate a criminal investigation, the prosecutor or investigator issued a reasoned decision to that effect which had to be notified to the interested party. The decision was amenable to appeal to a higher-ranking prosecutor or to a court of general jurisdiction (Article 113). 20. An appeal against a decision of a first-instance court (including an order authorising or extending pre-trial detention) lies to a higher court. It must be lodged within ten days and examined within the same time-limit as an appeal against a judgment on the merits (Article 331 of the CCrP). 21. Under Article 59 § 3 of the CCrP a judge should not sit in a case if there are any grounds to conclude that he/she has a direct or indirect personal interest in the case. In such circumstances the judge should withdraw from the case; failing this, a party has the right to lodge a motion to challenge the judge (Article 60). | 1 |
dev | 001-102788 | ENG | POL | ADMISSIBILITY | 2,010 | SZYC v. POLAND | 4 | Inadmissible | Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano | The applicant, Mr Józef Szyc, is a Polish citizen who was born in 1950 and is currently detained in Biała Podlaska Prison. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 21 November 1990 the applicant was imprisoned in Biała Podlaska Prison. Subsequently, he was many times transferred between prisons in Włodawa, Biała Podlaska, Siedlce, Kamińsk and Chełm. On 23 July 2009 the applicant was released from Chełm Prison as he had been granted a leave on compassionate grounds. On 20 July 2010 the applicant resumed serving his prison sentence. He is currently detained in Biała Podlaska Prison. The applicant submitted that practically all prisons in which he had been detained from 1999 or 2000 onwards had been overcrowded. By way of an example, he submitted that in June 2008 he had been detained in a prison cell with a living space of approx. 1 m² per inmate. He moreover asserted that on one occasion, for a period of one week, he was forced to sleep on a mattress on the cell floor. The overcrowding had resulted in tension and conflict among the detainees as well as in the progressive deterioration of the prison’s sanitary conditions. The applicant further submitted that from November 1995 and over the next 13 years, he had been detained together with smokers, despite his being a non-smoker. The cells in which he had been detained had no proper ventilation. As regards the applicant’s detention in Włodawa Prison, the Government pointed out that prior to 2 January 1999 the prison authorities had not been storing information as to the exact number of prisoners detained in each cell on specific dates. They further submitted that, to their general knowledge, the problem of overcrowding had not existed in Włodawa Prison prior to 1999. The Government acknowledged that from January 1999 until May 2003 the applicant had been temporarily placed in cells with a living space ranging from 2.5 m2 to 3.49 m2 per prisoner. The total time in which the applicant was imprisoned in cells of less than 3 m² per prisoner amounted to at least 145 days. The Government explained that during his entire stay in Włodawa Prison the applicant had been detained only in non-smoking cells. As for the applicant’s detention in prisons in Chełm and in Siedlce, the Government acknowledged that both these penitentiary centres had been permanently overcrowded at the relevant time. The applicant had been imprisoned in cells of less than 3 m² per prisoner for an overall period of 835 days. On one occasion, due to lack of space, the applicant was required to sleep on a double mattress on the cell floor for nine days. During an unspecified time the applicant was detained together with smokers, but he never complained to the authorities about this fact. In Biała Podlaska Prison the applicant was incarcerated in cells with a living space ranging from 2 m2 to 4.1 m2 per prisoner. The total period during which he was detained in cells of less than 3 m² per prisoner amounted to 744 days. The Government explained that in Biała Podlaska Prison the applicant had been serving his sentence in a semi-open ward where cells remained open during daytime. Moreover, from November 2006 to August 2007 he had been allowed to take a bath on a daily basis. Lastly, they submitted that, on three occasions, the applicant had been granted a temporary, accompanied release from prison. He was also granted leave to attend his father’s funeral without being accompanied by a prison officer. More recently, the applicant submitted that the living conditions in Biała Podlaska Prison were inadequate and that he was detained together with four other inmates in cell no. 139 which was designed for three persons. The applicant informed the Court that on unspecified dates in 2003 and 2004 he brought several civil actions against prisons in Włodawa, Siedlce and Chełm for the infringement of his personal rights. He briefly informed the Court that his claims had been unsuccessful but failed to provide details about the exact course or the outcome of any of the proceedings. The Government submitted that the applicant’s civil action against Włodawa Prison had been dismissed by a decision of the first-instance court against which the applicant did not appeal. Three other civil actions which the applicant had attempted to institute before the Siedlce Regional Court (Sąd Okręgowy) were all rejected for failure to comply with the prescribed procedural requirements. The Government further submitted that the applicant had instituted another civil action before the Lublin Regional Court (Sąd Okręgowy). These proceedings were currently pending. The applicant did not contest the foregoing statements. A detailed description of the relevant domestic law and practice concerning general rules governing conditions of detention in Poland and domestic remedies available to detainees alleging that the conditions of their detention were inadequate are set out in the Court’s pilot judgments given in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. Poland (no. 17599/05) on 22 October 2009 (see §§ 75-85 and §§ 45-88 respectively). More recent developments are described in the Court’s decision in the case of Łatak v. Poland (no. 52070/08) on 12 October 2010 (see §§ 25-54). | 0 |
dev | 001-23834 | ENG | SWE | ADMISSIBILITY | 2,004 | RINGEL v. SWEDEN | 4 | Inadmissible | Nicolas Bratza | The applicant, Ms Helena Ringel, is an Swedish national, who was born in 1933 and lives in Uppsala. She was represented before the Court by Mr M. Axen, a lawyer practising in Uppsala. The facts of the case, as submitted by the applicant, may be summarised as follows. By a decision of 9 June 1992 the Social Insurance Office (försäkringskassan; hereinafter “the Office”) of the County of Uppsala granted the applicant a life annuity (livränta) under the Act on Industrial Injury Insurance (Lagen om arbetsskadeförsäkring, 1976:380; hereinafter “the 1976 Act”). The amount on the basis of which the annuity was to be calculated – corresponding to the applicant's expected annual income had she continued to work – was fixed at 220,000 Swedish kronor (SEK). The applicant appealed against the Office's decision and the County Administrative Court (länsrätten) of the County of Uppsala, by a judgment of 28 March 1993, raised the amount in question to SEK 252,800. The applicant made a further appeal to the Administrative Court of Appeal (kammarrätten) in Stockholm. The National Social Insurance Board (Riksförsäkringsverket) also appealed. Whereas the applicant had not requested an oral hearing at first instance, she asked the appellate court to hold one. However, the appellate court refused the request, finding that a hearing was not necessary. By a judgment of 5 November 1996 it found in favour of the Board and thus quashed the appealed judgment and upheld the Office's decision. On 10 March 1998 the Supreme Administrative Court (Regeringsrätten) refused the applicant leave to appeal. On 10 September 1993 the Office decided that the above amount should be fixed at SEK 258,100 for the period 1 December 1992 – 30 November 1995. By a decision of 8 November 1995 the Office fixed the amount at SEK 244,000 for the following period. The applicant, assisted by legal counsel, appealed to the County Administrative Court and claimed that the amount should be fixed at SEK 258,000. By a judgment of 23 February 1998 the court upheld the Office's decision, finding that the Office had correctly estimated the applicant's expected income at the time of the appealed decision. The court did not hold an oral hearing, nor did the applicant request one. The applicant appealed to the Administrative Court of Appeal. By a letter of 2 March 2000 she requested that the appellate court hold an oral hearing at which she wished to make oral submissions. It appears from the wording of the letter that the request was for a hearing to be held if the court were to examine the case on the merits. On 15 March 2000 the Administrative Court of Appeal refused leave to appeal. On 16 October 2002, following a further appeal, the Supreme Administrative Court also refused leave to appeal. All gainfully employed persons working in Sweden are insured against industrial injuries in accordance with the 1976 Act. Anyone who is put on the sick-list as a result of an industrial injury and who is insured under the Social Insurance Act (Lagen om allmän försäkring, 1962:381) is entitled to the same per diem benefit from the ordinary sickness insurance (social insurance) during the first 90 days as if he or she had been sick for a reason other than an industrial injury. When 90 days have passed, the insured person is entitled to a per diem sickness benefit in accordance with the 1976 Act (industrial injury insurance), if his or her ability to carry on with gainful employment is reduced by at least 25% (50% prior to 1 July 1990). After the period of sickness has come to an end and the insured person is no longer on the sick-list, he or she is entitled to a life annuity if the capacity for gainful employment is reduced by at least one fifteenth. In order to calculate the annuity, an amount corresponding to the expected annual income is fixed. A decision by the Social Insurance Office under the 1976 Act may be appealed against to the County Administrative Court and from there on to the Administrative Court of Appeal and the Supreme Administrative Court. The procedure in the administrative courts is governed by the provisions of the Administrative Court Procedure Act (Förvaltningsprocesslagen, 1971:291; hereinafter “the 1971 Act”). Section 9 provides: “The proceedings are in writing. An oral hearing may be held in regard to a certain issue, when there is reason to assume that that would be to the benefit of the proceedings or the speedy determination of the case. In the Administrative Court of Appeal and the County Administrative Court an oral hearing shall be held if requested by an individual party to the proceedings, unless it is unnecessary or there are particular reasons against holding a hearing.” The possibility for an individual party to obtain an oral hearing on request under those circumstances is not available in the proceedings before the Supreme Administrative Court. According to the preparatory documents to the 1971 Act, an oral hearing can be a valuable complement to the written proceedings and may benefit the examination of a case in two situations in particular: firstly, when it is necessary to hear a witness, an expert or a party or when it is difficult for a party to present the case in writing and, secondly, when different positions in the case need to be sorted out in order to eliminate unnecessary or pointless issues of dispute. In the latter case, the oral hearing takes on a preparatory character. It was stressed, however, that an oral hearing should not to be seen as an alternative to the written procedure but as a complement to it (see Government Bill 1971:30, p. 535). It was further stated, in respect of the third paragraph of section 9, that a party's request for an oral hearing should be given great consideration. However, such a request should not have a decisive influence on the matter, as the question whether an oral hearing is necessary is to be determined primarily on the basis of the available information in the case. Still, other circumstances may be of relevance, for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party's understanding of a future decision in the case. Nevertheless, if the case is of a trivial character or the costs of an oral hearing would be disproportionate to the values at stake in the case, there could be reason not to hold an oral hearing (p. 537). | 0 |
dev | 001-68348 | ENG | ITA | CHAMBER | 2,005 | CASE OF SARDINAS ALBO v. ITALY | 3 | Preliminary objections rejected (non-exhaustion of domestic remedies, victim);Violation of Art. 5-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses (Convention proceedings) - claim dismissed | Christos Rozakis | 9. The applicant was born in 1948 and is currently detained in Voghera. 10. On 6 August 1996 the applicant, accused of international drugtrafficking, was arrested in Milan. He was in possession of a false passport in the name of José Luis Troccoli Perdomo. 11. On 7 August 1996 the applicant was questioned by the Milan Public Prosecutor. Criminal proceedings were instituted against José Luis Troccoli Perdomo. 12. By an order of 9 August 1996, the Milan investigating judge remanded the applicant in custody. He observed that there was strong evidence of guilt against the applicant, who was in possession of documents showing that he was in contact with persons connected to drug-trafficking. Given the amount of cocaine (104 kilograms) imported by those persons and the fact that they were probably part of a major criminal organisation, the investigating judge considered that there was a serious risk of re-offending and a risk of tampering with evidence. Moreover, the applicant had declared that he was a tourist and that he had no links whatsoever to Italy. It was therefore reasonable to believe that he would try to abscond in order to avoid the consequences of the legal proceedings commenced against him. 13. The applicant challenged the order before the Milan District Court, which dismissed his appeal on 23 September 1996. The District Court observed that new evidence had emerged against the applicant, who had been recognised as the person who had rented a deposit box in which the cocaine had been found, had helped to move a container into the deposit box and was facing another set of proceedings for drug-trafficking pending in Bassano del Grappa. The Milan District Court held that there was a serious risk of his re-offending, as evidenced by the fact that the applicant was part of a powerful criminal organisation. Moreover, if he were released, the applicant might try to get in touch with the other members of the organisation in order to tell them about the investigations with a view to tampering with the evidence. Finally, there was a risk of his absconding, confirmed by the fact that the applicant had given a different name to the Bassano del Grappa judicial authorities. 14. The applicant did not appeal on points of law to the Court of Cassation against the order of 23 September 1996. 15. On 27 May 1997 the Milan Public Prosecutor’s Office requested that the applicant and twelve other persons be committed for trial. The preliminary hearing was scheduled for 23 June 1997, on which date the applicant was committed for trial, to begin on 2 April 1998 before the Milan District Court. 16. In a judgment of 22 April 1998, filed with the registry on 27 April 1998, the Milan District Court declared that the case was outside its jurisdiction ratione loci and ordered the transmission of the case-file to the Genoa Public Prosecutor’s Office. 17. In a decision of 8 May 1998 the Genoa investigating judge extended the applicant’s detention on remand. After confirming the observations made in the orders of 9 August and 23 September 1996, he noted that further investigation had revealed that the applicant had played an active role in renting the deposit box where the cocaine had been found and in sending the container in which it was concealed and had kept in contact with the other defendants who had been caught by the police in the act of removing the cocaine from the container. The investigating judge considered moreover that there was a risk of his re-offending and absconding after having committed the offence. He noted in that respect that another set of criminal proceedings had been instituted against the applicant in Bassano del Grappa, and that the accused had tried to abscond, producing false identification papers. 18. The applicant did not appeal against the decision of 8 May 1998. 19. On 4 November 1998 the Public Prosecutor attached to the Genoa District Court forwarded the case-file to the Como Public Prosecutor’s Office. 20. In a judgment of 7 October 1999, filed with the registry on 28 October 1999, the Como District Court found the applicant guilty of the charges against him and sentenced him to fifteen years’ imprisonment and imposed a fine of 130,000,000 Italian lire (ITL). The applicant’s name was established as being in reality Horacio Sardinas Albo. 21. On 20 December 1999 the applicant appealed against that judgment. He challenged, in particular, the jurisdiction of the Como District Court. 22. The hearing was scheduled for 16 March 2000. On that date, the applicant concluded a plea bargain (applicazione della pena su richiesta delle parti) with the Public Prosecutor attached to the Milan Court of Appeal. The applicant agreed to withdraw his appeal in return for a reduction in his sentence. 23. In a judgment of 16 March 2000, the Milan Court of Appeal recognized the agreement reached by the parties and reduced the applicant’s sentence to eleven years’ imprisonment and a fine of ITL 100,000,000. 24. The applicant’s appeal on points of law was declared inadmissible by the Court of Cassation in a judgment of 2 February 2001. 25. Meanwhile, on 14 May 1998, the Ministry of Justice had requested that the applicant be placed in detention with a view to his extradition to the United States. In an order of 15 May 1998 the Brescia Court of Appeal had provisionally granted the request. 26. On 22 May 1998 the applicant was interviewed by the President of the Brescia Court of Appeal. He declared that he did not agree to be extradited since the absence of diplomatic relations between Cuba and the United States could result in his being detained for an indefinite period of time (a situation commonly known as “limbo incarceration”). 27. On 22 May 1998 the applicant challenged the order of 15 May 1998. He contested in particular the authorities’ assumption that it was necessary to prevent him from absconding before the extradition decision could be enforced. By an order of 26 May 1998 the Brescia Court of Appeal rejected his claim. The applicant’s appeal on points of law was declared inadmissible. 28. On 22 June 1998 the United States authorities requested the applicant’s extradition for offences related to drug-trafficking (importation and possession of 425 kilograms of cocaine). 29. On 25 August 1998 the Brescia Public Prosecutor’s Office requested that extradition be granted. It was noted that an arrest warrant had been issued against the applicant on 9 June 1993 by the Porto Rico District Court and that in the light of the evidence produced by the United States authorities it was reasonable to believe that the applicant was guilty of the offences with which he had been charged. 30. In a judgment of 2 October 1998, filed with the registry on 6 October 1998, the Brescia Court of Appeal ruled in favour of extradition. 31. On 27 October 1998 the applicant appealed on points of law. He submitted that Cuban nationals incurred a serious risk of indefinite detention in the United States. 32. By a judgment of 29 January 1999, filed with the registry on 29 March 1999, the Court of Cassation dismissed the applicant’s appeal. 33. On 12 May 1999 the Ministry of Justice granted the extradition request. However, noting that criminal proceedings against the applicant were then pending before the Como District Court, the Ministry decided, according to Article 709 of the Code of Criminal Procedure (hereinafter, the “CCP”), to suspend the enforcement of the extradition. 34. Meanwhile the United States authorities had once again requested the applicant’s extradition in relation to a charge of false statements. The applicant had allegedly declared that his name was Gilberto Ramos in order to obtain a United States passport and had produced evidence corroborating the assertion. 35. By an order of 4 June 1999 the Brescia Court of Appeal decided that the applicant should be detained with a view to extradition. It noted, in particular, that the applicant had already left the jurisdiction of the Florida courts and that there was a specific risk of his absconding. The order indicated that the applicant was a Cuban citizen who, in February 1973, had obtained a permanent residence permit in the United States. 36. On 8 July 1999 the applicant appealed on points of law against the order of 4 June 1999. 37. By a judgment of 19 August 1999, filed with the registry on 1 September 1999, the Court of Cassation declared the applicant’s appeal inadmissible because it had been lodged out of time. 38. By a judgment of 9 March 2000, filed with the registry on 21 March 2000, the Brescia Court of Appeal ruled in favour of extradition. 39. The applicant appealed on points of law. By a judgment of 19 September 2000, filed with the registry on 30 October 2000, the Court of Cassation, considering that the Court of Appeal had duly given reasons for its decision, dismissed the applicant’s appeal. 40. By an order of 3 November 2000 the Ministry of Justice granted the extradition request. However, noting that criminal proceedings against the applicant were still pending, the Ministry decided to suspend enforcement of the extradition. 41. The first paragraph of Article 273 of the CCP provides that “no one shall be detained pending trial unless there is serious evidence of his guilt”. 42. Article 274 CCP goes on to provide that detention pending trial may be ordered: “(a) if detention is demanded by special and unavoidable requirements of the inquiry into the facts under investigation concerning a genuine and present danger for the production or authenticity of evidence ...; (b) if the accused has absconded or there is a real danger of his absconding, provided that the court considers that, if convicted, he will be liable to a prison sentence of more than two years; and (c) where, given the specific nature and circumstances of the offence and having regard to the character of the suspect or the accused as shown by his conduct, acts or criminal record, there is a genuine risk that he will commit a serious offence involving the use of weapons or other violent means against the person or an offence against the constitutional order or an offence relating to organised crime or a further offence of the same kind as that of which he is suspected or accused ...” 43. Under Article 275 of the CCP, precautionary measures should be adapted, in each individual case, to the nature and degree of the conditions set out in Article 274; they must be proportionate to the seriousness of the offence and to the sanction which is likely to be applied. Detention pending trial may be ordered only if all other precautionary measures appear to be inadequate. 44. Article 292 CCP provides inter alia that a detention order must contain an explanation of the actual grounds for the precautionary measure and of the specific evidence of guilt, including the factual elements on which the evidence is based and the grounds for its relevance, and must also take into account the time elapsed since the offence was committed. 45. According to the Court of Cassation’s case-law, the existence of evidence of guilt and of the reasons for detention set out in Article 274 of the CCP should be re-examined in the light of any new relevant facts, such as the time elapsed since the beginning of the enforcement of the precautionary measure (see the Fourth Section’s judgment no. 2395 of 16 October 1997 in the case of Luise). 46. Article 303 CCP lays down the maximum permitted periods of detention pending trial which vary according to the stage reached in the proceedings and according to the seriousness of the offences with which the accused is charged. 47. In 1989 the Court of Cassation held that the Convention provisions were applicable in Italy, provided that they were drafted in sufficiently precise terms (see the Plenary Court’s judgment no. 15 of 8 May 1989 in the case of Polo Castro). According to the Constitutional Court, the Convention is a special source of law which cannot be modified by ordinary law (judgment no. 10 of 19 January 1993). 48. However, in more recent decisions, the Court of Cassation has held that Article 5 § 3 of the Convention is not directly applicable in Italy, by reason of its general and indeterminate character (natura programmatica see, in particular, the following judgments: no. 2549 of 28 May 1996 (First Section) in the case of Persico; no. 2550 of 31 May 1997 (First Section) in the case of Esposito; no. 1439 of 21 May 1998 (Fourth Section) in the case of Scattolin). 49. According to Article 709 of the CCP “The enforcement of extradition shall be suspended if the person to be extradited ought to be judged [in Italy] or must serve [in Italy] a sentence imposed on him or her for offences committed before or after the offence in respect of which the extradition has been granted ...”. | 1 |
dev | 001-77538 | ENG | ARM | ADMISSIBILITY | 2,006 | POGHOSYAN v. ARMENIA | 4 | Inadmissible | David Thór Björgvinsson | The applicant, Mr Vardan Poghosyan, is an Armenian national who was born in 1932 and lives in Yerevan. He was represented before the Court by Ms L. Hakobyan, a lawyer practising in Yerevan. The Armenian Government (“the Government”) were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. On an unspecified date, the applicant instituted civil proceedings against three individuals, A., P. and H., seeking to recover certain property and damages for lost profit. On 21 June 2002 the Avan and Nor Nork District Court of Yerevan (Երևանի Ավան և Նոր Նորք համայնքների առաջին ատյանի դատարան) partially granted the applicant's claim and ordered that the property belonging to him be returned. His claim for damages was rejected. On 26 August 2002 the Civil Court of Appeal (ՀՀ քաղաքացիական գործերով վերաքննիչ դատարան) upheld this judgment. On 25 October 2002 the Court of Cassation (ՀՀ վճռաբեկ դատարան) quashed this judgment in its part concerning damages and remitted for a new examination. On 26 March 2003 the Civil Court of Appeal partially granted the applicant's claim for damages and awarded him 1,238,160 Armenian drams (AMD) (approx. EUR 1,960 at the material time) to be paid jointly by the co-defendants. On 25 April 2003 the Court of Cassation upheld this judgment in the final instance. The judgment entered into force. On 7 May 2003 the Court of Appeal issued a writ of execution. On 12 May 2003 the Department for the Enforcement of Judicial Acts (the DEJA) (Դատական ակտերի հարկադիր կատարումն ապահովող ծառայություն) instituted enforcement proceedings. On the same date, the Bailiff (հարկադիր կատարող) made a decision to arrest any immovable and movable property belonging to the co-defendants. On 18 May 2003 the Bailiff made inquiries with various public authorities, seeking to disclose such property. On 23 May 2003 and 18 June 2003 the Bailiff was informed by the vehicle registration authorities that no cars were registered in the co-defendants' names. On 2 and 12 June 2003 the Bailiff was informed by the tax authorities that the co-defendants were not registered as tax payers. On 19 June 2003 the Bailiff visited the co-defendants for enforcement purposes and the same day drew up records on the failure to disclose any movable property to be confiscated. As to immovable property, the only such property disclosed was a quarter share in a flat belonging to co-defendant P. Another share in the same flat belonging to co-defendant A. had been already confiscated by the courts for him to be able to meet another judgment debt. On 8 July 2003 the Bailiff decided to arrest the share in the flat belonging to defendant P. By a letter of 11 July 2003 the Bailiff instructed the applicant to apply to the relevant court, to have this share severed and confiscated in accordance with Article 200 of the Civil Code. On 15 August 2003 the applicant lodged an application with the Avan and Nor Nork District Court of Yerevan addressed to the President and the judge who had presided over his case, with the following content: “To: The President of the Avan and Nor Nork District Court, [Mr. K], and the judge who had presided over the trial, [Mr. B.] From: [The applicant (address)] 15.08.03 Application-claim Dear [Mr. K. and B.], A sum of 1,238,160 drams was awarded to me by a final judgment made against [co-defendants A., P. and H.]. The court seized the flat ... belonging to the above mentioned persons. However, the DEJA has been informed in writing that by a judgment of 20 August 2002 ... [co-defendant A.] lost his ownership in respect of this flat, despite the fact that this flat should have been seized [already] on 5 August 2002. For this reason, the DEJA instructs me to have the share in the flat belonging to [co-defendant P.] severed and confiscated by applying to [your court]. Based on the above, I ask you to fulfil the instruction given by the DEJA.” Attached to this application were a copy of the judgment of 26 March 2003 and the Bailiff's letter of 11 July 2003. By an undated letter the Acting President of the Avan and Nor Nork District Court of Yerevan (Երևանի Ավան և Նոր Նորք համայնքների առաջին ատյանի դատարանի նախագահի ժամանակավոր պաշտոնակատար) informed the applicant that: “In reply to your application I would like to inform you that the court examines civil cases and issues judgments, following which [the DEJA] enforces these judgments on the basis of execution writs.” On 8 September 2003 the applicant lodged an application with the Civil Court of Appeal addressed to judge K. who had presided over his case, with virtually the same content. At the end the applicant added: “I ask you to issue a decision to sever and confiscate the share belonging to [co-defendant P.], since, after having applied to the first instance court, I have received a meaningless reply.” On 19 October 2003 the applicant complained to the President of the Civil Court of Appeal that: “As instructed by the [relevant] branch of the DEJA, I applied to your court seeking to have a share in a flat belonging to [co-defendant P.] severed and confiscated, since, after having applied with this request to the Avan and Nor Nork District Court, I have received an indefinite reply. However, your judge [K.] avoids giving any written reply, whether positive or negative.” By a letter of 23 October 2003 judge K. replied that the Appeal Court had no competence to deal with obstacles arising in the enforcement stage and advised the applicant to apply to the relevant first instance court. On an unspecified date, following the communication of the present application to the respondent Government, i.e. 25 February 2005, co-defendant P. voluntarily paid the sum of money he owed to the applicant. On an unspecified date, the Bailiff decided to terminate the enforcement proceedings. According to Article 34, the Bailiff must implement the enforcement activities within two months from the date of receipt of the execution writ, which does not include the period when the enforcement activities are in the process of an auction or the period required for finding the debtor or disclosing any property belonging to him, unless the law prescribes a shorter period for the enforcement or an immediate enforcement. According to Article 200 §§ 1 and 2, if a co-owner of a shared or joint property does not have other sufficient means, the creditor can seek to have the debtor's share severed from the common property in order to have it confiscated. If it is impossible to sever the share in kind or if the other co-owners of the shared or joint property object to it, the creditor can require the other co-owners of the common property to buy the debtor's share at the market price in order to pay the debt. If the other co-owners of the common property refuse to buy the debtor's share, the creditor can have the debtor's share in the common property confiscated through court proceedings and sold at a public auction.” According to Article 3, the court institutes civil proceedings only on the basis of a claim or an application. Article 87 §§ 1, 2 and 3 provides that an application to court must be submitted in writing. The application must contain: 1) the name of the court applied to; 2) names and addresses of the parties; 3) the sum sought, if the claim has a value; 4) circumstances on which the claims are based; 5) documents substantiating the claims; 6) an estimate of the contested sum or the sum to be confiscated; 7) the applicant's demands, and if several defendants are sued, the applicant's demands directed against each of them; and 8) a list of attached documents. The application may also contain other relevant information, if they are necessary for the proper determination of the case, as well as the applicant's motions. The application must be signed by the applicant or an authorised representative. According to Article 92 §§ 1, 2, 3 and 4, the judge shall return the application if, inter alia, the requirements contained in Article 87 as to its form and substance have not been complied with. The court shall adopt a decision to return the application within three days of its receipt. If the application is returned, the applicant could re-apply after having corrected its defects. If disagreeing with the decision to return the application, the applicant can apply to the president of the court for a review, within three days of its receipt. The president of the court shall examine the application within three days and adopt a decision on it. Article 144 §§ 1 and 2 provides that a judicial act, which does not determine the case on its merits, shall be adopted in the form of a decision. A decision adopted as a separate document shall contain: 1) the name of the court, its composition, the case number, the date, the subject of the dispute; 2) the names of the parties; 3) the question to be decided; 4) the reasons which led to the court's conclusions, including references to laws and other legal acts; 5) the conclusion on the question being decided; and 6) the procedure and time-limit for lodging an appeal, if the decision is subject to appeal. According to Article 1, this Law regulates the relations connected with the examination, in a procedure and within the time-limits prescribed by law, of proposals, applications and complaints of citizens and legal persons by the State, public and other authorities, the local self-government, the relevant officials and organisations, with the response to the facts of violations of rights and lawful interests of citizens and legal persons, and with the elimination and prevention of such violations. This Law does not apply to the procedure for the examination of proposals, applications and complaints of citizens prescribed by the Code of Criminal Procedure, the Code of Civil Procedure, the labour and other laws. Article 4 provides that the State authorities, the local self-government and the relevant officials are obliged, inter alia, to admit and to examine, within the scope of their competence and in the procedure and within the time-limits prescribed by law, the proposals, applications and complaints of citizens, to reply to them and to take other relevant measures. | 0 |
dev | 001-105453 | ENG | ROU | COMMITTEE | 2,011 | CASE OF VELCESCU AND OTHERS v. ROMANIA | 4 | Violation of Art. 6-1 | Ineta Ziemele;Ján Šikuta;Kristina Pardalos | 3. The details as to the subject matter of the cases, reference dates for the start and end of the proceedings and the length of the proceedings are set out in the table appended hereto. | 1 |
dev | 001-102256 | ENG | TUR | CHAMBER | 2,010 | CASE OF HADEP AND DEMİR v. TURKEY | 3 | Remainder inadmissible;Violation of Art. 11;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria | 5. HADEP was a political party which had been established on 11 May 1994. At the time of its dissolution on 13 March 2003 its general secretary was the second applicant, Mr Ahmet Turan Demir, who had been elected to that post in February 2003. 6. In the general election held on 24 December 1995 HADEP received 1,171,623 votes, which represented 4.17% of the total number of votes cast. In the general election held on 18 April 1999 HADEP received 1,482,196 votes. However, as HADEP did not succeed in passing the required threshold of 10%, it was unable to be represented in the Grand National Assembly of Turkey following these two general elections (see HADEP and Others v. Turkey (dec.), no. 51292/99, 13 November 2008). In local elections held on 18 April 1999 HADEP won control of 37 municipalities. It had branches in 47 cities and in hundreds of districts. In 2002 HADEP became a member of the Socialist International. 7. The applicants submitted that, during a National Security Council (Milli Güvenlik Kurulu) meeting held on 18 December 1996, a decision had been taken to dissolve HADEP. In support of this assertion the applicants submitted to the Court a report which, they claimed, had been adopted by the National Security Council and which had subsequently been leaked to the press. The report, which is classified 'Secret', details a number of recommendations including “the control and pursuit of HADEP by the State in order to quell its activities”. Following this decision HADEP branches had been raided and its administrators had been subjected to physical pressure. In support of this latter argument the applicants submitted to the Court two reports, detailing the physical attacks on and the killings and forced disappearances of dozens of HADEP members, some of which have been examined by the Court (see, inter alia, Tanış and Others v. Turkey, no. 65899/01, ECHR 2005–VIII). 8. On various dates criminal proceedings were brought against a number of members of HADEP who were holding executive positions within the party. Some of the proceedings were suspended while some ended in convictions. Some of them were convicted of spreading “separatist propaganda”, in breach of section 8 of the Prevention of Terrorism Act, while others were convicted of “incitement to racial hatred and hostility in society on the basis of a distinction between social classes, races or religions”, in breach of Article 312 of the Criminal Code. A number of others were convicted of lending assistance to the PKK in breach of Article 169 of the Criminal Code, for making speeches, allowing hunger strikers to use HADEP premises and for possessing a number of documents prepared by PKK members in a law-firm owned by one of them. Some served their prison sentences while execution of the sentences of a number of others was stayed. 9. On 29 January 1999 the chief prosecutor at the Court of Cassation brought proceedings before the Constitutional Court and demanded that HADEP be dissolved. The chief prosecutor argued that HADEP had become a “centre of illegal activities against the integrity of Turkey”. In support of his allegations the chief prosecutor referred to the criminal proceedings pending against members of HADEP and a number of activities of its members. One incident relied on by the chief prosecutor was that during HADEP's annual general meeting in 1996 the Turkish flag had been taken down and replaced with a PKK flag. 10. On 25 February 1999 the chief prosecutor asked the Constitutional Court to render an interim decision banning HADEP from taking part in the forthcoming April general and local elections. The chief prosecutor's request was refused by the Constitutional Court on 8 March 1999. 11. On 5 April 1999 lawyers for HADEP submitted a written defence to the Constitutional Court. They alleged that the chief prosecutor's request for the dissolution of HADEP had been made as a result of the National Security Council's above-mentioned decision (see paragraph 7). They further argued, inter alia, that as it was not clear what the accusations against HADEP were, it was not possible for them to make full use of their defence rights. The lawyers relied on Articles 6, 9, 10, 11 and 14 of the Convention and Article 3 of Protocol No. 1 to the Convention, and asked the Constitutional Court to take into account the decisions and judgments of the European Court of Human Rights in cases concerning the dissolution of a number of other political parties in Turkey. 12. The chief prosecutor maintained in his written submissions of 9 April 1999 that HADEP had close ties with the PKK, and alleged that the former was being controlled by the latter. The chief prosecutor also repeated his request for HADEP to be dissolved before the elections which were to be held on 18 April 1999. This request was not accepted by the Constitutional Court. 13. During the proceedings, in their submissions to the Constitutional Court HADEP's representatives drew attention to the fact that the person who had taken down the flag was not a member of the party. They further stated that, immediately after the incident the HADEP congress had publicly condemned the incident. Since then HADEP had been dissociating itself from the incident and condemning it as an attack on a common symbolic value of the people of Turkey. 14. In its decision of 13 March 2003 the Constitutional Court decided unanimously to dissolve HADEP. The Constitutional Court based its decision on Articles 68 and 69 of the Constitution and sections 101 and 103 of the Political Parties Act (Law no. 2820). In arriving at its conclusion, the Constitutional Court took account of the activities of certain leaders and members of HADEP and concluded that HADEP had become a centre of illegal activities which included aiding and abetting the PKK. 15. The Constitutional Court noted, in particular, that during HADEP's annual general meeting in 1996 a non-HADEP member wearing a mask had taken down the Turkish flag and replaced it with a PKK flag and a poster of the then leader of the PKK, Abdullah Öcalan. During the same meeting slogans had also been chanted in support of the PKK and its leader. The then general secretary of HADEP Mr Murat Bozlak, who was present during the meeting on that day, had done nothing to stop the Turkish flag being taken down and had stated during his speech that “the existence of the Kurds in Turkey, who were not allowed to speak their mother tongue, had been denied. The PKK, despite ongoing military operations, massacres and provocations, was holding its ceasefire. Nothing could be resolved with military operations or with occupation.” The Constitutional Court considered the taking down of the Turkish flag as proof of the links between HADEP and the PKK. It further considered that the references made by Mr Bozlak to Turkey's fight against terrorism as an “occupation” and portraying Kurds as a separate nation showed that Mr Bozlak was supporting the PKK. 16. The Constitutional Court referred to Article 11 of the Convention in its judgment and stated that the rights guaranteed in that provision were not absolute and could be restricted in the circumstances listed in Article 11 § 2 of the Convention. It also referred to Article 17 of the Convention, and reached the following conclusion: “Carrying out activities, by relying on democratic rights and freedoms, against the indivisible unity of the State with its nation is unacceptable. In such circumstances it is the duty and raison d'être of the State to prevent the abuse of these rights and freedoms. Allowing a political party which supports terrorism and which is supported by terrorism to continue to exist cannot be contemplated. In statements and speeches made on behalf of the People's Democracy Party and in the course of various meetings, the party's general secretary Murat Bozlak, other party officials and chairmen and members of the party's provincial and district branches have stated that the Kurdish nation was a different nation from the Turkish nation; that the State of the Turkish Republic had been enforcing a policy of pressure and oppression on the Kurdish nation; that there was an ongoing war between the PKK terrorist organisation and the State of the Republic of Turkey; and that the Kurdish nation should take sides with the PKK in this war. Some of these activities have resulted in convictions. These persons have thus aided and harboured the PKK and its leader Abdullah Öcalan, whose aim is to destroy the indivisible unity of the State. The incidents, which are detailed in relevant parts of this judgment and which took place during the Second Congress of the People's Democracy Party on 23 June 1996 in Ankara, as well as the objects and documents found in the party headquarters and in the party's various branches confirm the [above-mentioned conclusion]. Activities by members of the People's Democracy Party and the evidence [in our possession] clearly show the links between the respondent party and the PKK. The following incidents and activities – and many others and judgments rendered by courts – are proof of the connection and support between the People's Democracy Party and the PKK terrorist organisation: – organisation of various activities – under instructions from the PKK – such as hunger strikes, demonstrations and issuing press releases with a view to protesting against the attempt to assassinate Öcalan and against the work that had been carried out by the State of the Turkish Republic to apprehend Öcalan, and against his subsequent arrest; – work to create, by referring to concepts such as freedom, brotherhood and peace, a sense of a different nation among the people who live in a certain part of the country or who claim to belong to a certain ethnic group; – description of the State's struggle against the PKK terrorist organisation as a 'dirty war', as well as taking sides with the PKK in this war by carrying out certain activities and by displaying certain behaviour; – provision of training to a number of young people, in line with the PKK ideology but under the disguise of in-party training, with a view to recruiting them to the party first and subsequently to the PKK terrorist organisation in order for them to carry out activities on behalf of the PKK terrorist organisation and then sending them to the PKK's mountain camps as armed militants; – the keeping in the Party's headquarters and in its district and provincial branches, of objects, books, banners and photographs of members of the PKK as well as other PKK terrorist organisation propaganda documents for which the courts have issued confiscation orders; – the fact of allowing people to watch the organisation's media organ MED TV in these places for propaganda purposes; and – speeches and activities during HADEP's Second Congress. In the light of the above, and in accordance with Articles 68 and 69 of the Constitution and section 101 (b) of the Political Parties Act, it is hereby decided to dissolve HADEP, which has become a centre of illegal activities against the indivisible unity of the State with its nation and which has aided and harboured the PKK terrorist organisation. ...” 17. As an ancillary measure under Article 69 § 9 of the Constitution, the Constitutional Court banned 46 HADEP members and leaders from becoming founder members, ordinary members, leaders or auditors of any other political party for a period of five years. The Constitutional Court also ordered the transfer of HADEP's property to the Treasury. 18. The decision of the Constitutional Court became final following its publication in the Official Gazette on 19 July 2003. 19. Article 169 of the Criminal Code in force at the relevant time provided as follows: “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 ...” 20. Article 312 of the Criminal Code in force at the relevant time provided as follows: “Non-public incitement to commit an offence A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall, on conviction, be liable to between six months' and two years' imprisonment and a heavy fine of between six thousand and thirty thousand Turkish liras. A person who incites people to hatred or hostility on the basis of a distinction between social classes, races, religions, denominations or regions, shall, on conviction, be liable to between one and three years' imprisonment and a fine of between nine thousand and thirty-six thousand liras. If this incitement endangers public safety, the sentence shall be increased by one-third to one-half. The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in Article 311 § 2.” 21. Section 8 of the Prevention of Terrorism Act provided, in so far as relevant, as follows: “Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited. Any person who engages in such an activity shall be sentenced to not less than one and not more than three years' imprisonment and a fine of between one hundred million and three hundred million Turkish liras. The penalty imposed on a reoffender may not be commuted to a fine.” 22. Article 68 § 4 of the Constitution provides as follows: “A political party's programme, statute or activities may not contradict the sovereignty of the State, the indivisible unity of the State with its nation, human rights, equality, principles of rule of law, sovereignty of the nation and democratic and secular principles of the Republic; they may not seek to establish a class-based dictatorship or any dictatorship and they may not incite people to commit offences.” 23. The relevant paragraphs of Article 69 of the Constitution provide as follows: “5. A decision to permanently dissolve a political party shall be taken if it is established that its statute and programme are not compatible with Article 68 § 4 of the Constitution; 6. A decision to permanently dissolve a political party on account of activities which are contrary to Article 68 § 4 of the Constitution can only be taken if the Constitutional Court decides that [the party] has become a centre where such activities are carried out. A political party shall be deemed to have become a centre of such activities if those activities are carried out in an intensive manner by its members and if this state of affairs is expressly or implicitly accepted by the party's congress, its decision-making bodies or its groups within Parliament, or if those activities are carried out directly by the party's organs in a decisive manner; 7. Depending on the severity of the actions in question, the Constitutional Court may, instead of dissolving the party, decide to fully or partly deprive it of the financial aid it receives from the State; ... 9. Founding members or ordinary members whose declarations or actions lead to the permanent dissolution of a political party shall be disqualified from acting as founders, ordinary members, administrators or auditors of another political party for a period of five years starting from the date of publication in the Official Gazette of the reasoned decision of the Constitutional Court; ...” 24. At the time of the dissolution of HADEP the relevant paragraph of Article 149 of the Constitution provided as follows: “The Constitutional Court sits with its president and ten members, and adopts its decisions with a simple majority. Cases concerning the annulation of provisions of the Constitution or the dissolution of a political party require a three-fifth majority. ...” On 7 May 2010 Article 149 of the Constitution was amended. The relevant paragraph now reads as follows: “...When deciding to dissolve a political party or to deprive it of the financial aid it receives from the State, a two-third majority is required. ...” 25. Sections 101 and 103 of the Political Parties Act (Law no. 2820) provide as follows: “The Constitutional Court may decide to dissolve a political party: (a) where [that party's] programme or statute contradicts the sovereignty of the State, the indivisible unity of the State with its nation, human rights, equality, principles of rule of law, sovereignty of the nation and democratic and secular principles of the Republic [and where they] defend and seek to establish a class-based dictatorship or any dictatorship [and where they] incite people to commit offences; (b) where it is established by the Constitutional Court that [the] political party has become a centre of activities contrary to Article 68 § 4 of the Constitution; and (c) where [the party] has received financial assistance from a foreign State, international organisation or from non-Turkish persons and companies. In cases concerning (a) and (b) above and depending on the severity of the activities concerned, the Constitutional Court may, instead of dissolving the party, deprive it of half or more of the financial assistance provided by the Treasury for one year...” “The Constitutional Court shall have the power to determine whether a political party has become a centre of activities which are contrary to Article 68 § 4 of the Constitution. A political party shall be deemed to have become a centre of such activities if those activities are carried out in an intensive manner by its members and if this state of affairs is expressly or implicitly accepted by the party's congress, its decision-making bodies or its groups within Parliament, or if those activities are carried out directly by the party's organs in a decisive manner.” 26. In its Guidelines on the prohibition and dissolution of political parties and analogous methods (published in January 2000) the European Commission for Democracy through Law (Venice Commission) proposed the following: “1. States should recognise that everyone has the right to associate freely in political parties. This right shall include freedom to hold political opinions and to receive and impart information without interference by a public authority and regardless of frontiers. The requirement to register political parties will not in itself be considered to be in violation of this right. 2. Any limitations to the exercise of the above-mentioned fundamental human rights through the activity of political parties shall be consistent with the relevant provisions of the European Convention for the Protection of Human Rights and other international treaties, in normal times as well as in cases of public emergencies. 3. Prohibition or enforced dissolution of political parties may only be justified in the case of parties which advocate the use of violence or use violence as a political means to overthrow the democratic constitutional order, thereby undermining the rights and freedoms guaranteed by the constitution. The fact alone that a party advocates a peaceful change of the Constitution should not be sufficient for its prohibition or dissolution. 4. A political party as a whole can not be held responsible for the individual behaviour of its members not authorised by the party within the framework of political/public and party activities. 5. The prohibition or dissolution of political parties as a particularly far-reaching measure should be used with utmost restraint. Before asking the competent judicial body to prohibit or dissolve a party, governments or other state organs should assess, having regard to the situation of the country concerned, whether the party really represents a danger to the free and democratic political order or to the rights of individuals and whether other, less radical measures could prevent the said danger. 6. Legal measures directed to the prohibition or legally enforced dissolution of political parties shall be a consequence of a judicial finding of unconstitutionality and shall be deemed as of an exceptional nature and governed by the principle of proportionality. Any such measure must be based on sufficient evidence that the party itself and not only individual members pursue political objectives using or preparing to use unconstitutional means. 7. The prohibition or dissolution of a political party should be decided by the Constitutional court or other appropriate judicial body in a procedure offering all guarantees of due process, openness and a fair trial.” 27. Resolution 1308 (2002) of the Parliamentary Assembly of the Council of Europe on “Restrictions on political parties in the Council of Europe member states” states, in particular, as follows: “... 10. ...[T]he Assembly believes that in exceptional cases, it may be legitimate for a party to be banned if its existence threatens the democratic order of the country. 11. In conclusion and in the light of the foregoing, the Assembly calls on the governments of member states to comply with the following principles: i. political pluralism is one of the fundamental principles of every democratic regime; ii. restrictions on or dissolution of political parties should be regarded as exceptional measures to be applied only in cases where the party concerned uses violence or threatens civil peace and the democratic constitutional order of the country; iii. as far as possible, less radical measures than dissolution should be used; iv. a party cannot be held responsible for the action taken by its members if such action is contrary to its statute or activities; v. a political party should be banned or dissolved only as a last resort, in conformity with the constitutional order of the country, and in accordance with the procedures which provide all the necessary guarantees to a fair trial; vi. the legal system in each member state should include specific provisions to ensure that measures restricting parties cannot be used in an arbitrary manner by the political authorities.” 28. On 13-14 March 2009 the Venice Commission, acting on a request from the Monitoring Committee of the Parliamentary Assembly of the Council of Europe (PACE) asking it “to review the constitutional and legal provisions which are relevant to the prohibition of political parties in Turkey”, adopted the “Opinion on the Constitutional and Legal Provisions Relevant to the Prohibition of Political Parties in Turkey”. The relevant parts of the Opinion are as follows: “... 105. The Venice Commission concludes that, when compared to the common European practice, the situation in Turkey differs in three important respects: 1. There is a long list of substantive criteria applicable to the constitutionality of political parties, as laid down in Article 68 (4) and the Law on political parties, which go beyond the criteria recognised as legitimate by the ECtHR and the Venice Commission. 2. There is a procedure for initiating decisions on party prohibition or dissolution which makes this initiative more arbitrary and less subject to democratic control, than in other European countries. 3. There is a tradition for regularly applying the rules on party closure to an extent that has no parallel in any other European country, and which demonstrates that this is not in effect regarded as an extraordinary measure, but as a structural and operative part of the constitution. 106. In conclusion, the Venice Commission is of the opinion that the provisions in Article 68 and 69 of the Constitution and the relevant provisions of the Law on political parties together form a system which as a whole is incompatible with Article 11 of the ECHR as interpreted by the ECtHR and the criteria adopted in 1999 by the Venice Commission and since endorsed by the Parliamentary Assembly of the Council of Europe. 107. The basic problem with the present Turkish rules on party closure is that the general threshold is too low, both for initiating procedures for and for prohibiting or dissolving parties. This is in itself in abstracto deviating from common European democratic standards, and it leads too easily to action that will be in breach of the ECHR, as demonstrated in the many Turkish cases before the European Court of Human Rights. 108. Because the substantial and procedural threshold for applying the Turkish rules on party prohibition or dissolution is so low, what should be an exceptional measure functions in fact as a regular one. This reduces the arena for democratic politics and widens the scope for constitutional adjudication on political issues. The scope of democratic politics is further eroded by the constitutional shielding of the first three articles of the Constitution, in such a way as to prevent the emergence of political programmes that question the principles laid down at the origin of the Turkish Republic, even if done in a peaceful and democratic manner. 109. The Venice Commission is of the opinion that within democratic Europe these strict limitations on the legitimate arena for democratic politics are particular to the Turkish constitutional system, and difficult to reconcile with basic European traditions for constitutional democracy. 110. The Venice Commission recognises and welcomes the fact that in recent years the rules on party prohibition in Turkey have been changed in such a way as to raise the threshold for dissolution. In the 2001 reform, Article 69 was amended to include the qualification that for a party to be in conflict with the criteria of Article 68 (4) the party must be a 'centre' for such activities. At the same time, the requirement of a 3/5 majority of the Constitutional Court for dissolving a political party was introduced into Article 149. This has shown itself to be an important reform, which was decisive for the outcome of the AK party case. While laudable, these reforms have not been sufficient to fully bridge the gap between the Turkish rules and the standards of the ECHR and the Venice Commission Guidelines. 111. Consequently, the Venice Commission is of the opinion that, although the 2001 revision was an important step in the right direction, it is still not sufficient to raise the general level of party protection in Turkey to that of the ECHR and the European common democratic standards. Further reform is necessary in order to achieve this, both on the substantive and the procedural side. ...” | 1 |
dev | 001-67436 | ENG | ITA | CHAMBER | 2,004 | CASE OF GIUSEPPE MOSTACCIUOLO v. ITALY (NO. 2) | 4 | Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Christos Rozakis | 4. The applicant was born in 1938 and lives in Benevento. 5. On 5 May 1987 Mr F. asked the Benevento District Court to order the applicant to pay him 73,934,495 Italian lire (38,183.98 euros (EUR)) for professional services. On 11 May 1987 the President of the Benevento District Court granted the application. The order was served on the applicant on 20 May 1987. 6. On 8 June 1987 the applicant challenged the order in the Benevento District Court. Preparation of the case for trial began on 24 September 1987. Of the twenty-nine hearings listed between 26 November 1987 and 16 October 1998 seven were adjourned by the court of its own motion, ten were devoted to organising expert evidence and supplementary findings and two were adjourned at the parties' request. 7. On 16 April 1999 the case was referred to the sezioni stralcio. Of the four hearings listed between 22 September 1999 and 8 February 2002 one was adjourned because the parties had not appeared and one was adjourned by the court of its own motion. 8. On 10 January 2002 the applicant lodged an appeal with the Rome Court of Appeal under Law no. 89 of 24 March 2001, known as the “Pinto” Act, complaining of the excessive length of the above-described proceedings. The applicant asked the court to rule that there had been a breach of Article 6 § 1 of the Convention and to order the Italian Government to pay compensation for the pecuniary and non-pecuniary damage sustained. The applicant claimed, inter alia, EUR 14,460.94 in pecuniary and non-pecuniary damages. 9. In a decision of 21 June 2002, the text of which was deposited with the registry on 2 October 2002, the Court of Appeal found that a reasonable time had been exceeded. It dismissed the claim for pecuniary damages on the ground that the applicant had not provided any proof, awarded him EUR 2,000 on an equitable basis in compensation for non-pecuniary damage, EUR 700 for costs and expenses incurred in the proceedings before the European Court of Human Rights and EUR 900 for the costs and expenses incurred in the Pinto proceedings. 10. That decision was served on the authorities on 23 January 2003 and became binding on 24 March 2003. The applicant served the authorities with notice to comply on 15 October 2003. On 29 October 2003 the applicant lodged an application for seizure with the Rome judge responsible for enforcement proceedings and a hearing was to be held on 28 March 2004. 11. In a letter of 21 January 2003 the applicant informed the Court of the outcome of the domestic proceedings and asked it to resume its examination of his application. 12. The applicant did not indicate that he had appealed to the Court of Cassation. | 1 |
dev | 001-80929 | ENG | RUS | CHAMBER | 2,007 | CASE OF DOVGUCHITS v. RUSSIA | 4 | Violation of Art. 6;Violation of P1-1 | Christos Rozakis | 5. The applicant was born in 1956 and lives in the town of Ryazan in the Ryazan Region. He is a former military officer. 6. In 2002 the applicant sued his military unit for wage arrears for his military service in 1996 when he had taken part in a military operation in Tajikistan. 7. On 22 February 2002 the Military Court of the Ryazan Garrison upheld the action and awarded the applicant 163,732.80 Russian roubles (RUR). The judgment was not appealed against and became final. 8. On 3 April 2002 the applicant received a writ of execution and submitted it to the Ryazan Office of the State Treasury. On 26 April 2002, after the Ryazan Office of the State Treasury had refused to execute the judgement, the applicant submitted the writ to the Ministry of Finance of the Russian Federation. 9. On 30 September 2002 the applicant was discharged from the army. 10. On 16 July 2003 the Presidium of the Military Court of the Moscow Command, by way of a supervisory review, quashed the judgment of 22 February 2002 and remitted the case for a fresh examination to the Military Court of the Ryazan Garrison. 11. On 15 September 2003 the Military Court of the Ryazan Garrison decided not to examine the action as the applicant had defaulted at two hearings. 12. On 12 August 2004 the Military Section of the Supreme Court of the Russian Federation, acting on a supervisory review, found that the applicant had not been duly summonsed to the hearings before the Military Court of the Ryazan Garrison, quashed the judgment of 16 July 2003 and the decision of 15 September 2003 and ordered a re-examination of the case by the Presidium of the Military Court of the Moscow Command. 13. On 15 September 2004 the Presidium of the Military Court of the Moscow Command, by way of supervisory-review proceedings, re-examined the case, awarded the applicant RUR 56,311.20 and dismissed the remainder of his claims. 14. In January 2005 the applicant asked the Military Section of the Supreme Court of the Russian Federation to initiate a supervisory review in respect of the judgment of 15 September 2004. On 3 May 2005 the request was dismissed. 15. In July 2005 the applicant unsuccessfully requested the President of the Supreme Court of the Russian Federation to quash the judgment of 15 September 2004 by way of a supervisory review. On 10 August 2005 the Vice President of the Supreme Court of the Russian Federation refused to institute supervisory-review proceedings in respect of the judgment of 15 September 2004. | 1 |
dev | 001-58305 | ENG | TUR | GRANDCHAMBER | 1,999 | CASE OF ÖZTÜRK v. TURKEY | 1 | Violation of Art. 10;Not necessary to examine P1-1;Pecuniary damage - financial award;Costs and expenses partial award | Luzius Wildhaber | 11. Mr Öztürk, the applicant, was born in 1957. He is one of the owners of the Yurt Kitap-Yayın publishing house and lives in Ankara. In October 1988 he published a book by N. Behram entitled A testimony to life – Diary of a death under torture (Hayatın Tanıklığında – İşkencede Ölümün Güncesi). The book gave an account of the life of İbrahim Kaypakkaya, who in 1973 had been one of the founder members of the Communist Party of Turkey – Marxist-Leninist (Türkiye Komünist Partisi – Marksist-Leninist – “the TKP-ML”), an illegal Maoist organisation. The 111-page book, illustrated by photographs, has 24 chapters, each of which is prefaced by a poem. These poems were written by four Turkish poets, namely the author himself, A. Arif, M. Derviş and A. Kadir, by the Chilean writer P. Neruda and by İbrahim Kaypakkaya. As the first edition had sold out as soon as it was placed on sale, the book was republished in November 1988. 12. On 21 December 1988 the public prosecutor at the Ankara National Security Court (“the National Security Court”) instituted criminal proceedings against Mr Behram, the author of the book, and the applicant, its publisher. However, he dealt with the case against Mr Behram separately, having noted that he had not been in Turkey at the material time. 13. On 23 December 1988, at the request of the public prosecutor, a single judge of the National Security Court made an interim order for the seizure of the copies of the second edition. According to the file, 3,195 copies were seized as a result, including 3,133 at the applicant’s publishing house. On 5 January 1989 the applicant asked the judge to reconsider the above order; this appeal was dismissed. 14. On 14 February 1989 the public prosecutor charged the applicant with disseminating communist propaganda in breach of former Article 142 §§ 4 and 6 of the Criminal Code (see paragraph 29 below) and of inciting the people to hatred and hostility on the basis of a distinction between social classes, an offence under Article 312 §§ 2 and 3 of the same Code (see paragraph 30 below). Referring to İ. Kaypakkaya’s antecedents, the public prosecutor emphasised that at the head of the TKP-ML, a terrorist organisation, he had carried out armed raids with a view to overthrowing the constitutional order of the State in order to set up a communist regime. In support of his submissions the public prosecutor first drew attention to the description of İ. Kaypakkaya’s father given on the second page of the book: “He was a worker who could not accept that life should flow by in that way, and that sweat, energy and labour should be exploited like that. He was dissatisfied with this state of affairs and wanted that forlorn world to change”. The public prosecutor argued that by equating the status quo with a spoliatory regime this sentence undoubtedly praised communism. The public prosecutor went on to cite the following poems. “... Ambushes guide me towards my people, vital force of the guerilla war; resistance is a terrible and noble passion, but that is not all; like a mistress, it is in addition hesitant, docile, delicate, deft; we who are masters of patriotism, hope is hidden within us, the immortal standard is red and streams out in the wind ...” ((p. 15) A. Arif, published in January 1974 in the weekly publication Yeni A) According to the public prosecutor, this poem was to be interpreted in the light of the actions of İ. Kaypakkaya. Seen from that point of view, it insinuated that terrorist acts enabled their perpetrators to draw closer to the people and recruit active terrorists from among them and that it was necessary to struggle patiently to establish a communist regime. In his submission, that amounted to illegal communist propaganda. “To our dead comrades You, who gave your lives for our people; You, who gave everything in this fight; You, who gave the colour red To the battle standard Which flies proudly in our hearts; You, who died for our immortal people; You, the sublime sons of our people, Rest now with pride and patience, Your comrades are carrying on the fight ...” ((p. 27) İ. Kaypakkaya) The public prosecutor observed that this text honoured the memory of the dead terrorists who had sought to undermine the State’s constitutional regime by force of arms and was intended, particularly in its last phrase, to stir up hatred and hostility. “... The only light That awoke us Was the light of the world! I went into their houses Where they sat round the table After returning from their work; They laughed or wept And each resembled the others; They turned their faces towards the light, Seeking their way ...” ((p. 30) P. Neruda) The public prosecutor argued that this poem constituted communist propaganda because it held up communism as the only source of light for proletarians. “... They carried out the death sentence; They spattered with blood The blue mist of the mountains and The newly woken morning breeze; Then they came [and put down their] weapons. Carefully feeling our chests, They examined us, Searching everywhere ...” ((p. 35) A. Arif, “Your absence made me wear out chains”, 1968) The public prosecutor contended that these phrases were contemptuous of the security forces who had to stand against the terrorists and thus incited the people to show hatred and hostility towards them. Lastly, he noted that the expression “May their virtue be our guide and their memory a light on our way”, which appeared on the very last page of the book, referred to İ. Kaypakkaya and the other terrorists. Consequently, the public prosecutor argued that the enthusiastic eulogy of the personality and acts of the rebel İ. Kaypakkaya in the book in issue justified both Mr Öztürk’s conviction as the publisher responsible within the meaning of section 16(4) of the Press Act (Law no. 5680 – see paragraph 32 below) and confiscation of the copies of the book pursuant to Article 36 § 1 of the Criminal Code (see paragraph 28 below). 15. Before the National Security Court the applicant contested the charges, submitting that he had published the book because he considered that there was nothing in it which could justify repressive measures. In addition, his lawyers argued in particular that the passages in issue, reproduced in the indictment, could not by any means be taken for separatist propaganda and that even supposing that they could be regarded as a criticism of the State as constituted at that time, it was the right of every citizen to make such a criticism. 16. On 30 March 1989 the National Security Court found the applicant guilty as charged. In its judgment, after stating that it was satisfied “that there [was] no need to ask experts to examine the book, given that its content [could] be understood by anyone on the first reading ...”, the National Security Court accepted that the passages cited in the indictment did indeed praise the aim and the armed raids of the TKP-ML and its leader and accordingly that the public prosecutor was fully justified in interpreting them as open incitement of the people to hatred and hostility. However, observing that it had considered the content of the book as a whole – in accordance with the case-law of the Court of Cassation – the National Security Court dismissed the defence arguments relating precisely to the alleged lack of relevance of an assessment based on this or that isolated extract from the book. Considering that it was not necessary to reproduce in the operative provisions of the judgment the passages judged to be in breach of the law, the National Security Court held: “All things considered, the book is intended to glorify and venerate both communism and the terrorist İ. Kaypakkaya ... who was a supporter of communism, and to defend his actions ... Moreover, [the book] expressly incites the people to hatred and hostility on the basis of a distinction between regions, social classes and races.” The National Security Court sentenced Mr Öztürk to fines of 328,500 and 285,000 Turkish liras (TRL) under Article 142 § 4 and Article 312 § 2 of the Criminal Code respectively (see paragraphs 29 and 30 below) and ordered the book’s confiscation (see paragraph 28 below). 17. By a judgment of 26 September 1989 the Court of Cassation declared an appeal by the applicant on points of law inadmissible as regards his conviction under Article 312 of the Criminal Code, on the ground that no appeal lay against it in view of the amount of the fine ordered for the offence concerned. However, it set aside the verdict under Article 142 § 4 on the ground that it was unlawful to establish the accused’s guilt merely by referring to the indictment without stating, with reasons, how and in what parts the book was an apologia of communism. It remitted the case on this point to the National Security Court. 18. On 9 January 1990 the applicant paid the fine of TRL 285,000. 19. In the judgment it delivered on 28 December 1990 the National Security Court, basing its decision on an expert report on the content of the book, confirmed the sentence it had imposed under Article 142 of the Criminal Code; it also upheld its order for the confiscation of the book. However, on 1 March 1991 this judgment was likewise quashed by the Court of Cassation, on the ground that the report on which it was based had not been written by experts who had taken the oath. The case was then once again remitted to the National Security Court. 20. Before the National Security Court the public prosecutor called for Mr Öztürk’s acquittal on the charge of disseminating communist propaganda. He submitted that Article 142 of the Criminal Code, on which the conviction in question had been based, had been repealed by the Prevention of Terrorism Act (Law no. 3713), which had come into force on 12 April 1991. By a judgment of 11 June 1991 the National Security Court accepted the public prosecutor’s submissions. However, observing that the judgment delivered on 30 March 1989 had become final with regard to the conviction under Article 312 of the Criminal Code (see paragraph 17 above), it noted that the confiscation order remained operative. It appears from the file that 2,845 confiscated copies of the book were destroyed on 21 April 1992. 21. On 1 March 1989, that is before the date of Mr Öztürk’s initial conviction (see paragraph 16 above), the public prosecutor charged the book’s author, Mr N. Behram, then living in Germany. The indictment filed for that purpose was essentially a copy of the one which had set in motion the proceedings against the applicant (see paragraph 14 above). 22. By a judgment of 22 May 1991, given in the defendant’s absence, the National Security Court, composed of three judges of whom one had also tried the case of Mr Öztürk, observed firstly that the court was not required to rule on application of Article 142, which had been repealed in the meantime (see paragraph 29 below), then acquitted Mr Behram on the basis of an expert report, in which three professors of criminal law maintained that there was nothing in the book which might be held to constitute the offence defined in Article 312 of the Criminal Code. In its judgment the National Security Court, emphasising the book’s documentary nature, confined itself to an endorsement of the conclusions of the above-mentioned expert report. 23. This judgment became final, no appeal on points of law having been lodged. 24. On 19 September 1991 the applicant, having been informed of Mr Behram’s acquittal, applied to the Minister of Justice asking him to refer the case to the Court of Cassation (Yazılı emir ile bozma – see paragraph 33 below) by means of an appeal against his conviction under Article 312 of the Criminal Code and against the confiscation order (see paragraph 16 above). In support of his application the applicant pleaded the contradiction between the judgment given against him and the judgment given in respect of the author, whereas both of them had been tried on account of the same book. 25. Consequently, on 16 January 1992, by order of the Minister of Justice, Principal State Counsel at the Court of Cassation (“Principal State Counsel”) appealed against the judgment delivered on 28 December 1990 in the applicant’s case (see paragraph 19 above), pleading the lack of an explicit decision on what was to be done about the confiscation order. After the Court of Cassation’s dismissal of the appeal on 27 January 1992 the applicant applied for a second time to the Minister of Justice, submitting that Principal State Counsel had appealed on the wrong grounds. The Minister of Justice allowed this application and instructed Principal State Counsel to argue that the judgment of 30 March 1989 (see paragraph 16 above) was bad in so far as the author himself had subsequently been acquitted of charges identical to those which had led to Mr Öztürk’s conviction for incitement of the people to hatred and hostility (see paragraph 22 above). 26. In its judgment of 8 January 1993 the Court of Cassation dismissed the ground of appeal submitted by Principal State Counsel, ruling as follows: “The defendant was charged with the offences contemplated in Article 142 §§ 4 and 6 and Article 312 §§ 2 and 3 of the Criminal Code. The constituent elements of those offences were different. The acquittal of another accused tried for the same offence cannot be taken as justified and unshakeable evidence that the defendant should also have been acquitted. [In addition] the two accused were tried separately and the judgment acquitting Mustafa Nihat [Behram] became final without any appeal on points of law being lodged. Lastly, there is no evidence that the assessment of the content of the book A testimony to life – Diary of a death under torture made in the judgment at first instance is bad and must be invalidated ...” 27. At the present time Mr Behram’s book is on open sale. It is published by another publishing house, Altınçağ Yayıncılık, under the different title Biography of a communist (Bir komünistin biyografisi). 28. Article 36 § 1 of the Criminal Code provides: “In the event of conviction the court shall order the seizure and confiscation of any object which has been used for the commission or preparation of the crime or offence ...” 29. The relevant paragraphs of former Article 142 of the Criminal Code, repealed by the Prevention of Terrorism Act (Law no. 3713), provided: “Harmful propaganda 1. A person who by any means whatsoever spreads propaganda with a view to establishing the domination of one social class over the others, annihilating a social class, overturning the fundamental social or economic order established in Turkey or the political or legal order of the State shall, on conviction, be liable to a term of imprisonment of from five to ten years. 2. A person who by any means whatsoever spreads propaganda in favour of the State’s being governed by a single person or social group to the detriment of the underlying principles of the Republic and democracy shall, on conviction, be liable to a term of imprisonment of from five to ten years. 3. A person who, prompted by racial considerations, by any means whatsoever spreads propaganda aimed at abolishing in whole or in part public-law rights guaranteed by the Constitution or undermining or destroying patriotic sentiment shall, on conviction, be liable to a term of imprisonment of from five to ten years. 4. A person who publicly condones the offences contemplated in the above paragraphs shall, on conviction, be liable to a term of imprisonment of from two to five years. ... 6. Where the offences contemplated in the above paragraphs are committed through publication, the penalty to be imposed shall be increased by half.” 30. Article 311 § 2 and Article 312 of the Criminal Code provide: “Public incitement to commit an offence … Where incitement to commit an offence is done by means of mass communication, of whatever type – whether by tape recordings, gramophone records, newspapers, press publications or other published material – by the circulation or distribution of printed papers or by the placing of placards or posters in public places, the terms of imprisonment to which convicted persons are liable shall be doubled …” “Non-public incitement to commit an offence A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall, on conviction, be liable to between six months’ and two years’ imprisonment and a heavy fine of from six thousand to thirty thousand Turkish liras. A person who incites the people to hatred or hostility on the basis of a distinction between social classes, races, religions, denominations or regions, shall, on conviction, be liable to between one and three years’ imprisonment and a fine of from nine thousand to thirty-six thousand liras. If this incitement endangers public safety, the sentence shall be increased by one-third to one-half. The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in Article 311 § 2.” 31. With regard more particularly to application of the above-mentioned Article 312 of the Criminal Code to the publishers of printed matter giving rise to criminal charges, the Government have submitted examples of judgments given by the Court of Cassation and supplied further information which may be summarised as follows. In connection with offences committed through the medium of printed matter, the “principal” responsibility for the offence defined in Article 312 is incurred by the author of the writing concerned. The publisher’s responsibility is “secondary” and is incurred under section 16(4) of Law no. 5680 (see paragraph 32 below). A publisher facing criminal proceedings is charged with “publishing the writing which constitutes the offence” contemplated in Article 312. However, there are provisions, such as section 8 of the Prevention of Terrorism Act (Law no. 3713), which form a lex specialis making publishers criminally responsible. The main effect of the distinction drawn between the responsibility borne by authors and that borne by publishers is that, unlike the position regarding the former, prison sentences imposed on the latter are commuted to a fine, save in those cases where the above-mentioned Law no. 3713 applies. 32. Section 3 and section 16(4) of Law no. 5680 provide: “For the purposes of the present Law, the term ‘periodicals’ shall mean newspapers, press agency dispatches and any other printed matter published at regular intervals. ‘Publication’ shall mean the exposure, display, distribution, emission, sale or offer for sale of printed matter on premises to which the public have access where anyone may see it. An offence shall not be deemed to have been committed through the medium of the press unless publication has taken place, except where the material in itself is unlawful.” “... 4. With regard to offences committed through the medium of publications other than periodicals, criminal responsibility shall be incurred by the author, translator or illustrator of the publication which constitutes the offence, and by the publisher. However, custodial sentences imposed on publishers shall be commuted to a fine, irrespective of the term [of imprisonment] ...” 33. Article 343 § 1 of the Code of Criminal Procedure, concerning references to the Court of Cassation by written order of the Minister of Justice (Yazılı emir ile bozma – “reference by written order”) provides: “Where the Minister of Justice has been informed that a judge or court has delivered a judgment that has become final without coming under the scrutiny of the Court of Cassation, he may issue a formal order to Principal State Counsel requiring him to ask the Court of Cassation to set aside the judgment concerned ...” 34. With regard to the practice followed under Turkish law for a reference by written order, the Government have submitted the following information. This form of appeal lies only against judgments given at last instance which are not appealable to the Court of Cassation (see paragraph 17 above) or against which no party has lodged an appeal on points of law. Only Principal State Counsel at the Court of Cassation is empowered to refer a case, and then only on receipt of a formal order to that effect from the Minister of Justice, who may act either of his own motion or at the request of the convicted person. The powers conferred on the Court of Cassation when it deals with such an appeal are “extraordinary”; they may not be exercised save under the conditions laid down by law nor may the decision prejudice the convicted person. If the appeal succeeds, the Court of Cassation will normally, in the judgment delivered as a result, set aside the conviction or reduce the sentence; in the latter case, it will also determine what length of sentence must be served. 35. The Government have supplied, by way of example, a number of judgments given by the Court of Cassation concerning the way courts of trial have assessed writings and/or speech that have given rise to prosecutions, particularly for offences defined in former Article 142 and Article 312 of the Criminal Code (see paragraphs 29 and 30 above) and the offence contemplated in section 8 of the Prevention of Terrorism Act (Law no. 3713). These were judgments nos. 1991/18, 1994/240 and 1995/98, given by the plenary Court of Cassation, and judgments nos. 1974/2, 1978/4806, 1985/1682, 1989/2439, 1993/664, 1993/1066, 1993/1388, 1994/6080, 1996/4387 and 1996/8450, given by its Criminal Divisions. One principle which emerges from this case-law is that the first-instance judgment must be based on an assessment of the whole of the writing and/or speech in issue. As regards assessment of the material constituting the offence defined in Article 312 of the Criminal Code, the Court of Cassation has made it clear, particularly in the above-mentioned judgment no. 1974/2, that the offence of “incitement” consists in an act “capable of endangering public safety and public order” irrespective of whether the incitement has actually produced that result. In addition, in judgment no. 1994/6080, in setting aside a conviction under Article 312, the Court of Cassation would appear to have confined itself to noting the “remote” nature of the danger posed by the “incitement” in issue. Moreover, as regards the imposition of heavier sentences on account of aggravating circumstances, the Court of Cassation has held that such circumstances must be considered in relation to the existence of a grave and imminent danger threatening the general security of the country or the public. Lastly, in one of these cases, the Court of Cassation stressed the extreme importance – for the protection of the right to a fair trial – of the rule that the accused must always have the opportunity to speak last, before the judges rule. | 1 |
dev | 001-60856 | ENG | SVK | CHAMBER | 2,003 | CASE OF ZIACIK v. SLOVAKIA | 4 | Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award | Nicolas Bratza | 8. On 20 December 1996 the applicant was accused of an offence of attempting to sell explosives. 9. On 28 January 1997 he was arrested in the context of the criminal proceedings. On 30 January 1997 a judge ordered his release. 10. On 3 February 1997 the Minister of the Interior dismissed the applicant from the police. The decision referred to the conclusions reached by the Police Corps Inspection Office according to which the applicant had offered to sell explosives, and that on 8 June 1996 he had driven a car in which the police later found explosives. 11. On 26 March 1997 an expert opinion on the applicant’s mental health was submitted to the Žilina Regional Office of Investigation in the context of the criminal proceedings. 12. On 28 May 1997 the Žilina Regional Prosecutor indicted the applicant, charging him with two offences of involvement in the unauthorised transport of explosives before the Žilina Regional Court. 13. On 11 June 1997 the case was assigned to a different judge as the judge to whom the case had originally fallen to be examined was an acquaintance of the applicant. 14. On 25 November 1997 the Regional Court judge requested the Prievidza District Court to submit decisions concerning one of the accused. 15. On 16 April 1999 the Regional Court returned the case to the public prosecutor for further investigation. The prosecutor appealed on 27 April 1999. On 11 May 1999 the case was submitted to the Supreme Court. On 18 August 1999 the latter quashed the Regional Court’s decision of 16 April 1999 and ordered the first instance court to proceed with the case. The case file was returned to the Regional Court on 11 October 1999. 16. A hearing scheduled for 12 January 2000 had to be adjourned as one of the accused persons’ lawyers was absent. 17. Hearings were held on 17 February 2000, on 10 March 2000, on 16 June 2000 and on 27 July 2000. The case was adjourned as it was necessary to hear further witnesses. 18. On 13 September 2000 and on 26 October 2000 the case had to be adjourned as witnesses failed to appear. 19. On 29 November 2000 the Regional Court heard three witnesses. The case was adjourned as the court considered it necessary to hear another witness in respect of whom an arrest warrant had been issued. On 1 and 22 December 2000 and on 3 April 2001 the Regional Court asked the police to establish the whereabouts of the witness. 20. On 14 February 2001 the president of the Žilina Regional Court informed the applicant that the case had not been proceeded with in January 2001 as the presiding judge was ill. 21. On 10 May 2001 the Žilina Regional Court acquitted the applicant. On 17 August 2001 the public prosecutor appealed. One of the applicant’s co-accused also filed an appeal. The case file was transmitted to the Supreme Court on 27 August 2001. On 15 November 2001 one of the accused submitted observations on the public prosecutor’s appeal. 22. A hearing before the Supreme Court scheduled for 12 December 2001 was cancelled. 23. On 30 January 2002 the Supreme Court dismissed the appeals. The decision became final on the same day. 24. Article 48 (2) of the Constitution provides, inter alia, that every person has the right to have his or her case tried without unjustified delay. 25. As from 1 January 2002, the Constitution has been amended in that, inter alia, individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to Article 127 the relevant part of which reads as follows: “1. The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 2. When the Constitutional Court finds that a complaint is justified, it shall deliver a decision stating that a person’s rights or freedoms set out in paragraph 1 were violated as a result of a final decision, by a particular measure or by means of other interference. It shall quash such a decision, measure or other interference. When the violation found is the result of the failure to act, the Constitutional Court may order that [the authority] which violated such rights or freedoms should take the necessary action. At the same time the Constitutional Court may return the case to the authority concerned for further proceedings, order that such an authority abstain from violating fundamental rights and freedoms ... or, where appropriate, order that those who violated the rights or freedoms set out in paragraph 1 restore the situation existing prior to the violation. 3. In its decision on a complaint the Constitutional Court may grant adequate financial satisfaction to the person whose rights under paragraph 1 were violated.” ... 26. The text of the above amendment was adopted on 23 February 2001 and published in the Collection of Laws on 17 March 2001. 27. The implementation of the above constitutional provisions is set out in more detail in Sections 49-56 of Act no. 38/1993 (the Constitutional Court Act), as amended with effect from 20 March 2002. 28. After that date the Constitutional Court delivered a number of decisions in which it found a violation of Article 48 (2) of the Constitution, ordered the general court concerned to avoid any further delays in the proceedings and awarded the successful complainants financial compensation in respect of delays which had already occurred. The Constitutional Court has held that it can examine complaints about delays in proceedings only when the proceedings complained of were pending at the moment when the constitutional complaint was filed. 29. Section 18 (1) of Act No. 58/1969 on the liability of the State for damage caused by a State organ’s decision or by its erroneous official action (Zákon o zodpovednosti za škodu spôsobenú rozhodnutím orgánu štátu alebo jeho nesprávnym úradným postupom – “the State Liability Act”) renders the State liable for damage caused in the context of carrying out functions vested in public authorities which results from erroneous official actions of persons entrusted with the exercise of these functions. A claim for compensation under this provision can only be granted when the plaintiff shows that he or she suffered damage as a result of an erroneous action of a public authority, quantifies its amount, and shows that there is a causal link between the damage and the erroneous action in question. 30. Under the domestic courts’ practice, the State Liability Act of 1969 does not allow for compensation for non-pecuniary damage unless it is related to deterioration of a person’s health. In such cases the amount of compensation is governed by Regulation No. 32/1965. | 1 |
dev | 001-94979 | ENG | TUR | CHAMBER | 2,009 | CASE OF UZUNGET AND OTHERS v. TURKEY | 3 | Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 11;Non-pecuniary damage - award;Pecuniary damage - claim dismissed | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria | 5. The applicants were born in 1975, 1964, 1982, 1976, 1983, 1978, 1961, 1947, 1955, 1975, 1979, 1953, 1952 and 1976 respectively and live in Ankara. 6. On 31 July 2000 the applicants, together with several other persons, gathered in a public park in Ankara in protest against F-type prisons and the events which had occurred in Bergama Prison (violent clashes had taken place between the detainees and security forces on 27 July 2000). The participants wanted to read out a press statement in order to express their concerns about F-type prisons and the events in Bergama Prison. Police officers warned the crowd over a megaphone that the demonstration was illegal under Law no. 2911 on Meetings and Demonstration Marches. The group ignored the police warning. The police officers then arrested twenty-four persons, including the applicants, and took them into custody. It appears from the newspaper articles submitted by the applicants that the police officers used force in order to disperse the protesters. As a result, some of the protestors were injured and a number of them were arrested by the police officers. 7. According to the arrest report, drawn up and signed by the police officers, the applicants were demonstrating with protest banners in their hands. After having warned them to desist, the police arrested the protesters who continued demonstrating. It was also noted in the arrest report that three police officers, who had been injured during the clash with the demonstrators at the time of the arrest, had had to be taken to hospital. The medical reports stated that the police officers were unfit for work for two days. 8. On 31 August 2000 the Ankara Public Prosecutor filed an indictment with the Ankara Criminal Court of First Instance against the applicants and nine others, charging them with having taken part in a demonstration in a public place, without the permission of the authorities, contrary to Law no. 2911. 9. The applicants alleged that the police officers had been armed during the hearings before the trial court and had verbally harassed the defence lawyers. Moreover, the police officers had obtained a copy of the reports and statements in the case file even though they were not a party to the proceedings. The applicants' request to include these facts in the record of the hearings was dismissed. 10. On 5 July 2001 the Ankara Criminal Court of First Instance acquitted some of the accused but convicted the applicants on the basis of the evidence given by them and by witnesses. The court found that the applicants had ignored the police warning that their meeting was illegal and that they had to disperse. The police had had to use force in order to arrest the applicants. Furthermore, having examined the applicants' defence submissions, the court considered that the applicants had indirectly confessed to the crime (tevil yollu ikrar) by admitting that they had gathered in the park in order to protest against F-type prisons and the events in Bergama Prison. It then sentenced Rıza Altuntov to a fine, taking into account the fact that he was a minor at the time of the incident (seventeen and a half years old), whereas it sentenced the other applicants to one year and three months' imprisonment. It decided to suspend enforcement of the applicants' sentence, under section 6 of Law no. 667, with the exception of Alaattin Uğraş, Sinan Cem Uzunget and İsmail Temizyürek. 11. On 7 March 2002 the applicants appealed to the Court of Cassation against the judgment of the first-instance court. The written opinion of the Chief Public Prosecutor at the Court of Cassation was not transmitted to the applicants. 12. On 19 December 2002 the Court of Cassation upheld the decision of the first-instance court. 13. Section 6 of Law no. 647 on the Execution of Sentences reads as follows: “Anyone who has never been sentenced ... to a penalty other than a fine and is sentenced to ... a fine ... and/or a [maximum] term of one year's imprisonment may have his [her] sentence suspended if the court is satisfied that [the offender], having regard to his [her] criminal record and criminal tendencies, will not reoffend if [the] sentence is thus suspended ...” 14. Section 6 of Law no. 2253 on the Establishment and Rules of Procedure of the Juvenile Courts, as amended by Law no. 4963 of 30 July 2003, provides: “Criminal cases which concern crimes that normally fall under the jurisdiction of the regular courts and are committed by minors who are not yet eighteen years of age shall be examined by the juvenile courts.” 15. Article 34 of the Constitution provides: “Everyone has the right to hold unarmed and peaceful meetings and demonstration marches without prior permission. ... The formalities, conditions, and procedures governing the exercise of the right to hold meetings and demonstration marches shall be prescribed by law.” 16. At the material time section 10 of the Meetings and Demonstration Marches Act (Law no. 2911) was worded as follows: “In order for a meeting to take place, the governor's office or authorities of the district in which the demonstration is planned must be informed, during opening hours and at least seventy-two hours prior to the meeting, by a notice containing the signature of all the members of the organising board...” 17. Section 22 of the same Act prohibited demonstrations and processions on public streets, in parks, places of worship and buildings in which public services were based. Demonstrations organised in public squares had to comply with security instructions and not obstruct individual movement or public transport. Finally, section 24 provided that demonstrations and processions which did not comply with the provisions of this law would be dispersed by force on the order of the governor's office and after the demonstrators had been warned. 18. Section 16 of Law no. 2559 on the Duties and Powers of the Police provides: “The police may use firearms: (a) in self defence, ... (h) or if a person or a group resists the police and prevents them from carrying out their duties or if there is an attack against the police.” 19. Additional section 6 of Law no. 2559 on the Duties and Powers of the Police provides: “In cases of resistance by persons whose arrest is necessary or by groups whose dispersal is necessary or of an attack or threat of an attack, the police may use violence to subdue these actions. Use of violence refers to the use of bodily force, physical force and all types of weapons specified in the law and gradually increases according to the nature and level of resistance and attack in such a way as to restore calm. In cases of intervention by group forces, the extent of the use of force and the equipment and instruments to be used shall be determined by the commander of the intervening force.” | 1 |
dev | 001-96964 | ENG | RUS | CHAMBER | 2,010 | CASE OF KOTOV v. RUSSIA | 3 | Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of P1-1 | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | 7. The applicant was born in 1948 and lives in Krasnodar. 8. On 15 April 1994 the applicant deposited 3,330 new roubles (“roubles”) in a savings account with the commercial bank Yurak (“the bank”) offering an interest rate of 200% per annum. Between April and July 1994 he withdraw 555 roubles, representing interest that had accrued on that account. After the bank announced that it was changing the interest rate, the applicant requested the closure of his account in August 1994, but the bank informed him that it was unable to repay him his capital plus interest as its funds were insufficient. 9. The applicant brought proceedings against the bank, seeking repayment of the capital he had deposited, together with interest, a penalty payment at 3% per day and compensation for pecuniary damage (in connection with the construction of a house) and for non-pecuniary damage (on account of health problems). 10. On 20 February 1995 the Oktyabrskiy District Court of the town of Krasnodar partly upheld his claims. It established that on the closure of his account the bank owed the applicant 3,607 roubles, representing the capital deposited and the interest due for August 1994. After calculating the index-linked sum, it ordered the bank to pay the applicant 6,276 roubles. It further ordered a penalty payment of 3,330 roubles and awarded 500 roubles for non-pecuniary damage, making a total of 10,156 roubles. 11. That decision was upheld at last instance on 21 March 1995. 12. In a decision of the Oktyabrskiy court of 5 April 1996, the above-mentioned judgment debt was raised to 17,983 roubles in view of the failure to pay the 10,156 roubles and the rate of inflation. 13. In the meantime, on 16 June 1995, at the request of the Central Bank and the Russian Savings Bank, the Commercial Court for the Krasnodar region declared the bank insolvent. 14. On 19 July 1995 the insolvency procedure was opened by that court and a liquidator was appointed to oversee the liquidation. 15. On 11 January 1996 the Commercial Court approved the provisional statement of affairs based on the bank’s financial situation at 28 December 1995. 16. On the basis of that statement the committee of creditors of the bank decided on 18 January and 13 March 1996 to distribute the assets in the first place to certain categories of creditors. Accordingly, disabled persons, Second World War veterans, individuals in need and persons having taken an active part in the liquidation process, that is to say 700 persons in total (about 10% of creditors), were reimbursed by the liquidator at 100% of the index-linked amount of their capital together with interest. It was decided to reimburse the other creditors in the same manner, as and when further assets became available. 17. The applicant sent the liquidator a request for the repayment of the 17,983 roubles owed to him. In response to that request, the sum of 140 roubles was paid to him on 6 April 1998. 18. On 22 April 1998 the applicant challenged, before the Commercial Court, the fact that other creditors had received repayment at 100%, whereas he, as a preferential creditor, had received only 140 roubles. Relying on sections 15 and 30 of the Corporate Insolvency Act 1992 (“the 1992 Act”), he sought the repayment of the remainder of the sum owed to him in accordance with the principle of proportional distribution. Section 30 of the Act provided that, where a company’s assets were insufficient to satisfy all creditors, creditors of the same class would be paid in proportion to their respective claims. In the present case, at the date of the applicant’s request, 2,305,000 roubles had been collected in the liquidation process and these funds had been used for 100% repayment to creditors in the various categories mentioned above (see paragraph 16 above). 19. On 6 July 1998 the applicant’s action was dismissed at first instance on the ground that the amount owed to him (17,983 roubles) represented 0.78% of the assets totalling 2,305,000 roubles which, having been collected in the liquidation process, had been used to repay certain categories of creditor. According to the principle of proportional distribution he was therefore entitled to receive only 0.78% of 17,983 roubles, i.e. 140 roubles. That sum had already been paid to him on 6 April 1998, whilst the remainder would be paid as and when more funds became available in the course of the ongoing liquidation process. 20. Hearing the case on appeal, the Regional Commercial Court held on 26 August 1998 that, contrary to the requirements of section 27 of the 1992 Act, the liquidator’s list of creditors had not identified those that had priority or the corresponding sums to be paid to them separately. On the basis of the documents produced by the liquidator it was not possible to establish the applicant’s level of priority in relation to the other creditors, and the liquidator himself had stated orally that the applicant belonged to the fifth level of priority. The Regional Court took the view that, in deciding to repay certain categories of creditors at 100%, the creditors’ committee had overstepped the limits of its remit under section 23 of the 1992 Act. By enforcing that decision and distributing the assets accordingly, the liquidator had, in turn, disregarded the requirements of sections 15 and 30 of the Act. Pointing out that section 30 of the Act was not open to a broad interpretation of its provisions, the Regional Court ordered the liquidator to redress the violations thus observed within one month and to inform it of the measures taken in that connection. 21. The liquidator appealed on points of law to the Federal Commercial Court for the North Caucasus, arguing that he had distributed the assets pursuant to a decision of the creditors’ committee, that the distribution had complied with Article 64 of the Civil Code and that it had not therefore been in breach of the requirements of section 30 of the 1992 Act (see paragraphs 33 and 34 below). On 12 November 1998 his appeal on points of law was dismissed. Upholding the decision of 26 August 1998, the court stated that the liquidator should not have enforced a decision by the creditors’ committee that was in breach of the law. 22. The enforcement of the decision of 26 August 1998 and, in particular, the redressing of the applicant’s financial situation, were not possible on account of the lack of assets. 23. In view of the failure to enforce the decision of 26 August 1998, the applicant filed a complaint with the Commercial Court on 2 September 1998, subsequently supplementing it with a complaint of 27 January 1999. He requested that the liquidator in person repay him the index-linked amount of the remainder of his award of 17,983 roubles, with interest and compensation for the non-pecuniary damage caused by his unlawful action. 24. The complaints in question were examined in the context of the insolvency procedure opened against the bank. 25. On 4 February 1999 the Regional Commercial Court rejected the applicant’s request on the ground that, on 20 February 1995 and 5 April 1996, the Oktyabrskiy District Court had awarded the applicant the sum of 17,983 roubles to cover his claim and damages, and that it was not possible to rule on the same request a second time. The Regional Court established that the applicant appeared in the list of creditors under the number 519 and that, in respect of the actual capital deposited, the bank owed him a residual amount of 8,813 roubles. The court pointed out that this sum could be paid to him under the conditions laid down in Article 64 of the Civil Code. 26. On 31 March 1999 judges of the Regional Commercial Court, hearing the case on appeal, upheld the decision of 4 February 1999 and pointed out that, in accordance with an Act of 1998 that was in force at the time the applicant’s complaints were examined, only those debts that had accrued in the course of the bank’s operations could give rise to repayment. Accordingly, the requests for the payment of various sums to which the applicant was allegedly entitled after the bank’s insolvency and during its liquidation could not be granted. The appellate court found that, by virtue of the judicial decisions, the applicant had secured a judgment debt of 17,983 roubles, which corresponded to the damage caused to him by the bank before it became insolvent. It added that the applicant would be able to recover this sum once sufficient assets had been realised in the liquidation process. The applicant’s complaint was confined, in the appellate court’s view, to the seeking of the above-mentioned sum together with penalties for non-payment. 27. On 9 June 1999 the Federal Commercial Court for the North Caucasus dismissed the applicant’s appeal on points of law on the following grounds: “The decision of the creditors’ committee and the liquidator’s action concerning the 100% repayment of debts to only 700 creditors (out of the bank’s 7,567 creditors, whose claims amounted to 24,875,000 roubles) admittedly breached the principle of proportional payment to creditors at the same level of priority, but did not cause Mr Kotov the damage he alleged, because the 100% satisfaction of all first-level creditors was not possible on account of the lack of assets available for distribution. The sum repaid to Mr Kotov was thus calculated in proportion to the amount of his claim and to the assets realised in the course of the liquidation ...” 28. The court further pointed out that the liquidation process was still pending and that the applicant’s claim could thus be satisfied. 29. On 17 June 1999 the Regional Commercial Court confirmed the statement of affairs, as presented by the liquidator and approved by the general meeting of creditors, and closed the insolvency procedure on grounds of insufficient assets. 30. After the Government had been given notice of the application, the President of the Supreme Commercial Court of the Russian Federation lodged, on 31 January 2001, an application for supervisory review (protest) against the decisions of 4 February, 31 March and 9 June 1999 (see paragraphs 25-27 above), on the ground that they had been given in breach of Article 22 of the Code of Commercial Litigation, which determined the jurisdiction of the commercial courts. Among other things, he stated that the examination of the applicant’s complaints of 2 September 1998 and 27 January 1999, in the context of the insolvency procedure opened against the bank, had been contrary to the 1992 Act governing such proceedings. Since those complaints had concerned a dispute between the applicant and the liquidator, they were not related to the insolvency procedure as such and the applicant should have submitted them to the courts of general jurisdiction. 31. On those grounds the President sought the annulment of the decisions at issue and the discontinuance of the proceedings concerning the above-mentioned complaints. On 17 April 2001 the Presidium of the Supreme Commercial Court of the Russian Federation fully granted those requests, espousing the arguments raised in the application. 32. On 1 June 2001 the applicant submitted a request for revision of the 17 April 2001 decision to the same Presidium. On 4 July 2001 his request was dismissed as ill-founded by the Vice-President of the Supreme Commercial Court. 33. Under Article 63 of the Civil Code, after the expiry of the period within which creditors have to file their claims, the liquidation committee draws up a provisional statement of affairs containing information on the bankrupt’s estate, the claims filed by the creditors and the results of the examination of those claims. The statement has to be approved by the body that has taken the decision to wind up the company. If the company’s monetary assets are insufficient to satisfy the creditors’ claims, the liquidation committee will sell off the estate by auction. The distribution of assets to the creditors may begin in accordance with the interim statement once it has been approved, except in respect of fifth-level creditors who will not be able to receive any money owed to them for one month following that approval. Once all the payments have been made, the final statement of affairs is drawn up and approved in the same manner. Should the assets prove insufficient, the unsatisfied creditors may request the courts to order the owner of the company to honour their claims out of his own personal funds. Article 64 of the Civil Code, as in force prior to 20 February 1996, made a distinction between five classes of creditors, providing that payment could be made to a given class only when the creditors at the previous level had been satisfied. According to this classification the applicant belonged to the fifth class of “other creditors”. Article 64 made no mention of a class of creditors who were pensioners, Second World War veterans or persons in need. Under a new provision that was inserted into this Article on 20 February 1996, when a bank or other lending institution is wound up, private persons having made deposits with it are to be repaid as a first priority. Article 64 further provides that where a legal entity in liquidation has insufficient assets, they must be distributed among creditors at the same level in proportion to their respective claims. 34. Under section 3 §§ 1 and 2 of the 1992 Act, insolvency cases fall within the jurisdiction of the commercial courts, which examine them in accordance with the rules laid down in the Act or, where no such rule exists, in accordance with the Code of Arbitration Procedure of the Russian Federation. Under section 15 of the Act, insolvency procedures are opened in order to satisfy the creditors’ claims on a pari passu basis, to declare the bankrupt released from his obligations and to protect the parties from unlawful actions against each other. Section 18 § 2 provides that, after a company has been declared insolvent and an insolvency procedure has been opened against it, any claims against the company’s assets may be submitted only in the context of those proceedings. Under section 19, the commercial courts appoint the liquidator and, in the cases provided for by the Act, examine the lawfulness of acts of the parties involved in the insolvency procedure. Article 20 lists those parties as the liquidator, the creditors’ committee, the creditor, etc. Under section 21 § 1 the liquidator takes control of the bankrupt’s property, analyses the financial situation, examines the merits of the creditors’ claims, accepting or rejecting them, oversees the liquidation process to realise the assets, takes over the administration of the insolvent entity, sets up and heads the liquidation committee, and convenes the general meeting of creditors. In accordance with section 21 § 2, taken together with section 12 § 4, candidates to the office of liquidator must be economists or lawyers or have experience of company management. They must not have a criminal record. No persons holding a position of responsibility in a company that is a debtor or creditor may be appointed. Candidates to the office of liquidator must declare their income and assets. Under section 21 § 3 the liquidator may challenge any decisions of the general meeting of the creditors’ committee when those decisions fall outside the remit of that meeting. Under section 27 § 1, after the expiry of a two-month period within which the creditors must submit their claims against the bankrupt, the liquidator will draw up a list of the accepted and rejected claims indicating the amounts for those that have been accepted and the level of priority for each one. The list must be sent to the creditors within a period of two months. Section 30 establishes the various levels of priority for the distribution of the proceeds of the liquidation. Payment of the sums due to creditors at a given level is made once those at the previous level have been satisfied (paragraph 3). If not enough assets are realised to pay in full the creditors at a given level, the money that is available will be paid to them pari passu in proportion to the amounts of their respective claims (paragraph 4). Section 30 makes no mention of a class of creditors who are disabled, Second World War veterans or persons in need. Paragraph 1 provides that any expenses of the liquidation, the liquidator’s fees and the expenses of the debtor company’s ongoing operations must take priority over the claims of first-level creditors. Section 31 provides that a creditor may challenge before the commercial courts any decision of the liquidator which, in his view, breaches his rights and legitimate interests. Under section 35 § 3, any claims that cannot be satisfied because the proceeds of the liquidation are insufficient will be regarded as extinguished. Section 38 provides that the bankrupt will be regarded as wound up from the time of its exclusion from the corresponding national register, pursuant to the decision of the commercial court closing the insolvency procedure. 35. Section 21 § 3 of the 1998 Act provides that creditors are entitled to seek compensation from the liquidator in respect of any damage that the latter may have caused to them by an action or omission in breach of the law. In accordance with section 98 § 1, sub-paragraph 7, of this Act, claims against the bankrupt may be submitted only in the context of the insolvency procedure (see also section 18 § 2 of the 1992 Act). Section 114 provides for the same principles of distribution and pari passu repayment as section 30 of the 1992 Act. 36. Under Article 131 of the Code, where a commercial court orders the defendant to carry out a specific act other than a transfer of property or payment of a pecuniary award, the court will indicate by whom, where and within what time-limit the act must be carried out. Article 143 provides that insolvency cases are to be examined by commercial courts in accordance with the Code and with the specific provisions of the insolvency legislation. 37. Paragraph 4, concerning the constitutionality of section 18 § 2 of the 1992 Act (section 98 § 1 in conjunction with sections 15 § 4 and 55 § 1 of the 1998 Act) reads as follows: “... when examining the claims of creditors who are private persons ..., the commercial courts do not have jurisdiction to issue binding directions of a pecuniary nature to the liquidator, acknowledging the existence of a claim or right in favour of creditors .... This limitation ... must not be interpreted as preventing the courts of general jurisdiction from examining on the merits the pecuniary claims... of those creditors ..., in accordance with the legislation on insolvency. Nor do the provisions at issue contain any clauses that would prevent the commercial courts from giving decisions that enable the persons concerned to secure in full their right to judicial protection in the context of insolvency procedures, especially as other provisions of the Federal Law on insolvency (bankruptcy) precisely provide for the settlement of disputes through the courts (sections 41, 44, 57, 107, 108 et al.). The refusal by a commercial court to examine a complaint on the grounds that it does not have jurisdiction ... does not prevent the creditor from applying to the courts of general jurisdiction in order to secure the protection of his rights ... The right to judicial protection, as enshrined in the Constitution, must be upheld even in the absence of legislative norms establishing a division of jurisdiction between the commercial courts and the courts of general jurisdiction. It follows from this interpretation that [the provisions at issue] do not prevent the courts of general jurisdiction from examining claims filed by non-corporate creditors against the liquidator and seeking ... compensation for damage, nor do they prevent the commercial courts from securing the enforcement, in accordance with the above-mentioned Federal Law, of the decisions taken by the courts of general jurisdiction. ...” | 0 |
dev | 001-100960 | ENG | BGR | COMMITTEE | 2,010 | CASE OF DORON v. BULGARIA | 4 | Violation of Art. 6-1;Violation of Art. 13+6-1 | Mirjana Lazarova Trajkovska;Rait Maruste;Zdravka Kalaydjieva | 4. The applicant was born in 1953 and lives in Sofia. 5. On 7 March 1994 the applicant was charged with aiding and abetting large scale embezzlement. The charges were brought within the framework of criminal proceedings for abuse of power and embezzlement against several persons. 6. On 8 March 1994 the applicant was questioned in connection to the above charges and a search of his business premises was carried out. 7. On 11, 15, 23 and 24 March 1994 the applicant, some of the other persons charged and witnesses were questioned. 8. On 28 March 1994 the applicant was also charged with documentary fraud, was questioned in that connection and bail was fixed for him. 9. Between April and November 1994 at least fifteen questioning sessions and a search were carried out and several other persons were charged with abuse of power and embezzlement. 10. As the applicant did not pay the bail and could not be found for questioning, on an unspecified date in 1994 the Bulgarian authorities, with the assistance of Interpol, initiated a national and an international search for him. 11. On 5 December 1994 the applicant was found in Switzerland and on 26 January 1996 he was extradited to Bulgaria. 12. Meanwhile, the criminal proceedings against him were still pending and between 9 November 1994 and 8 January 1996 at least fourteen questioning sessions were carried out and two expert opinions were commissioned. 13. On 26 January 1996 the applicant was questioned and the findings of the investigation were presented to him. 14. Between January and October 1996 a number of questioning sessions and several other investigative actions took place and the charges against the applicant were separated from these against the other persons involved. 15. On 5 July 1997 a prosecutor from the Sofia city public prosecutor’s office dropped some of the charges against the applicant and prepared an indictment. Thus, the applicant remained charged only with aggravated documentary fraud, as a result of which he unlawfully received a large amount of money. 16. On 5 September 1997 the indictment was sent to the Sofia City Court. 17. During the first hearing of 5 March 1998 it became clear that the applicant had returned the allegedly embezzled amount to the victim company. 18. For the period between 5 March 1998 and 12 January 1999 the Sofia City Court held at least fourteen hearings. 19. By a judgment of 12 January 1999 the Sofia City Court acquitted the applicant. 20. The prosecutor appealed. 21. The Sofia Court of Appeal held at least three hearings. By a judgment of 13 March 2000 it upheld the acquittal. 22. The prosecutor appealed further. On 22 May 2000 the Supreme Court of Cassation held a hearing. 23. By a judgment of 3 October 2001 the Supreme Court of Cassation quashed the Sofia Court of Appeal judgment because of procedural breaches and remitted the case for fresh examination. 24. After the remittal the Sofia Court of Appeal held hearings on 20 May and 23 September 2002. 25. In a judgment of 21 November 2003 the Court of Appeal upheld the Sofia City Court judgment of 12 January 1999. 26. So did the Supreme Court of Cassation in a final judgment of 24 June 2004. 27. Apparently, no civil claim was brought against the applicant throughout the proceedings. 28. During the search of the applicant’s business premises, carried out on 8 March 1994, a metal safe was seized. On 11 May 1994 an investigator from the Sofia National Investigation Service opened the safe and seized the amount of 986,444 old Bulgarian levs (BGL) (the equivalent of 41,874 German marks at the time or 21,410 euros (EUR)). In the seizure record of 11 May 1994 it was stated that the amount had been seized pursuant to Article 156 of the Code of Criminal Procedure of 1974 (CCP). The amount was deposited in a special bank account under which no interest was due. 29. After the end of the criminal proceedings against the applicant, he requested the return of the seized amount. 30. In a decision of 2 September 2004 the Sofia City Court ordered the amount to be returned to the applicant. It found that no civil claim had been lodged within the framework of the criminal proceedings and no attachments had been imposed. The applicant received 986.40 new Bulgarian levs (BGN), approximately EUR 504, which was the equivalent of the seized amount after the denomination of 1999. 31. The domestic law provisions concerning remedies in respect of length of criminal proceedings have been summarized in paragraphs 34-42 of the Court’s judgment in the case of Atanasov and Ovcharov v. Bulgaria, no. 61596/00, 17 January 2008. 32. Article 156 of the CCP, as in force between 1974 and 1999, provided for attachment measures to guarantee the satisfaction of civil claims against the perpetrator, the payment of fines or the execution of confiscation orders. The provisions of the Civil Procedure Code of 1952 (CPC), including as regards appeals to higher courts, applied in respect of the attachment procedure. 33. In case no civil action had been lodged within the prescribed time-limit, the interested party could request from the court to lift the imposed measure (Article 322 of the CPC). 34. Article 181 of the CCP provided that the orders of the investigator were subject to appeal before the prosecutor and the orders of the prosecutor could be appealed before the prosecutor with a higher rank. 35. Articles 133-137 provided for the seizure of documents and other objects that could be of importance for the criminal proceedings. Pursuant to Article 106 of the CCP chattels and other objects could be collected as physical evidence and had to be held by the authorities until the termination of the criminal proceedings. They could be returned to their owners before that only as long as this would not hinder the establishment of the facts in the case (Article 108 § 2). As of 1 January 2000 Article 108 of the CCP was amended, thus clarifying that it was within the powers of the prosecutor’s office to rule on requests for the return of such objects and introducing the right to appeal before the court in case of refusal. | 1 |
dev | 001-23579 | ENG | GBR | ADMISSIBILITY | 2,003 | ZOLLMANN v. THE UNITED KINGDOM | 1 | Inadmissible | Ireneu Cabral Barreto;Nicolas Bratza | The applicants, Stéphane David and Maurice Zollmann, are Belgian nationals, who were born in 1959 and 1963 respectively and have given addresses in Belgium and South Africa. They are represented before the Court by Mr N. Angelet, a lawyer practising in Brussels, Belgium. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants, who are brothers, run an international diamond business, which involved, inter alia, importing diamonds to the family business in Antwerp, Belgium. They state that in autumn 1997 the family business took the decision not to import diamonds from African countries which were undergoing civil war or political instability. By resolution 1173 (1998) of 12 June 1998, the United Nations Security Council imposed an embargo on the export of diamonds by UNITA due to that organisation's role in the continuing war in Angola. In paragraph 21, it requested States to take measures against persons or bodies which violated the sanctions and to impose appropriate penalties. On 8 July 1998, the European Union formally adopted sanctions, binding on its member states. By August 1998, the United Kingdom and Belgium had adopted legislation to give effect to resolution 1173. The legislation as amended in the United Kingdom prohibited the importation into the United Kingdom of diamonds from Angola unless certified by the Angola Government. On 20 September 1999, in answer to a parliamentary question, Mr Peter Hain, the Minister of State at the Foreign and Commonwealth Office responsible for Africa, gave a written response stating inter alia; “We fully support UN sanctions against UNITA... We have also called for stricter enforcement of sanctions by all UN member states. ... The UK fully implements UN sanctions decided upon by the Security Council... Information concerning potential breaches of sanctions by UK nationals or companies is passed immediately to the appropriate UK enforcement authorities.” On 18 January 2000, in answer to further questions about Government measures to enforce UN sanctions, Mr Hain stated: “It is vital that private individuals and companies engaged in breaking the law by deliberately breaching the UN sanctions on UNITA are stopped. I can inform the House that we are referring to the UN sanctions committee and its expert panels the details of three such individuals which we hope that they will be able to follow up...” On 17 February 2000, Mr Hain stated in the House: “We are ready to name, shame and take action where we can on those who break sanctions. For example, we would take action in respect of the illegal provision of UNITA with supplies, without which it could not keep on fighting in Angola. I have named in the House several people included in breaking UN sanctions by supplying UNITA and I shall now name more. David Zollmann is involved in exporting diamonds to Antwerp for UNITA. Based in Rundu, Namibia, Zollmann paid a monthly fee to Namibian officials to enable him to operate without interference. We estimate that in 1999 Zollmann was moving $4 million worth of diamonds per month. His brother, Maurice Zollmann, is carrying out similar activity for UNITA in South Africa. Hennie Steyn, a South African pilot, flies diamonds for Maurice Zollmann from Angola, via Congo Brazzaville... Those individuals are making money out of misery. It is vital that all the Governments, agencies and companies where they operate take urgent action to stop their illegal activities... We have passed these names to the UN and in particular to ambassador Robert Fowler, for his work on the Sanctions Committee responsible for tackling UNITA and Angola generally.” This declaration was published in the House of Commons Hansard Debates and was available on the parliamentary website. The press reported on the matter, repeating the names of the persons included in the declaration – this included a report from Reuters on 17 February 2000 repeated by CNN, an article in the Guardian on 18 February 2000 and an article in the Namibian newspaper Windhoek Observer on 11 March 2000. Mr Hain's declaration was repeated in the South African Parliament by the deputy minister for foreign affairs on 15 March 2000. The applicants stated that an investigation was opened into the allegations by the parquet in Antwerp in February 2000. No proceedings have since ensued. The applicants provided a letter dated 8 November 2000 from the Antwerp procureur stating that the investigation had been closed with a decision not to prosecute or issue charges. A letter (undated but apparently sent in June) from the Belgian Foreign Minister to a Belgian Member of Parliament stated that the British secret service had provided information to the Belgian secret service but that it had not been established on the basis of that information that David Zollmann was guilty of the acts that Mr Peter Hain had accused him of. By letter dated 28 February 2000, the first applicant wrote to Mr Peter Hain denying the facts imputed by the Minister and requesting a meeting with himself and his brother. On 8 March 2000, Mr Peter Hain replied that he stood by the statement which he had made, that the matter was in the hands of the UN Sanctions Committee and that he saw no need for a meeting. On 28 February 2000, the Panel of Experts assisting the UN Angola Sanctions Committee stated in a report that it has received information from several sources that David Zollmann had been involved in importing diamonds to Antwerp for UNITA and that similar allegations had been made publicly. It considered that further investigation was warranted and passed on the information to the Chairman of the Committee. On 12 July 2000, following disclosure of the letter by the Belgian Minister for Foreign Affairs, the first applicant's counsel wrote to Mr Peter Hain requesting that he retract his allegations publicly and meet with the first applicant on his visit to Antwerp in July 2000, or alternatively, to waive the parliamentary privilege attaching to his statements in order to permit the first applicant to take proceedings in the courts. No response was received to this letter. In the report of the Monitoring Mechanism on Angola Sanctions dated 21 December 2000, a detailed analysis of the status of the sanctions on diamond trading in the region was made. David Zollmann was named as the junior partner in the Antwerp firm of Glasol which had created the Cuango Mining Corporation that had been the largest mining operation in the Cuango valley before the imposition of sanctions. In the additional report dated 16 April 2001 reporting on the enforcement of sanctions, no mention was made of either applicant. Since then the applicants have alleged that the stigma attaching to their reputation has led to other businesses refusing to trade with them e.g. providing two letters referring to the appearance of the name of one of the applicants in UN documents concerning diamond smuggling. Words spoken by MPs in the course of debates in the House of Commons are protected by absolute privilege. This is provided by Article 9 of the Bill of Rights 1689, which states: “... the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in a court or place out of Parlyament.” The effect of this privilege was described by Lord Chief Justice Cockburn in the case of Ex parte Watson (1869) QB 573 at 576: “It is clear that statements made by Members of either House of Parliament in their places in the House, though they might be untrue to their knowledge, could not be made the foundation of civil or criminal proceedings, however injurious they might be to the interest of a third party.” Statements made by MPs outside the Houses of Parliament are subject to the ordinary laws of defamation and breach of confidence, save where they are protected by qualified privilege. The question whether or not qualified privilege applies to statements made in any given political context turns upon the public interest. In the case of Reynolds v. Times Newspapers Ltd. [2001] 2 AC 127, which concerned allegations made in the British press about an Irish political crisis in 1994, Lord Nicholls of Birkenhead stated in the House of Lords, at page 204: Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only. 1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. 2. The nature of the information, and the extent to which the subject matter is a matter of public concern. 3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. 4. The steps taken to verify the information. 5. The status of the information. The allegations may have already been the subject of an investigation which commands respect. 6. The urgency of the matter. News is often a perishable commodity. 7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary. 8. Whether the article contained the gist of the plaintiff's side of the story. 9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. 10. The circumstances of the publication, including the timing.” Press coverage, to the extent that it fairly and accurately reports parliamentary debates, is generally protected by a form of qualified privilege which is lost only if the publisher has acted “maliciously”. “Malice”, for this purpose, is established where the report concerned is published for improper motives or with “reckless indifference” to the truth. A failure to make proper enquiries is not sufficient in itself to establish malice, but it may be evidence from which malice (in the sense of reckless indifference to the truth) can reasonably be inferred. MPs can waive the absolute immunity which they enjoy in Parliament as a result of section 13 of the Defamation Act 1996, which provides: “(1) Where the conduct of a person in or in relation to proceedings in Parliament is in issue in defamation proceedings, he may waive for the purposes of those proceedings, so far as concerns him, the protection of any enactment or rule of law which prevents proceedings in Parliament being impeached or questioned in any court or place out of Parliament. (2) Where a person waives that protection – (a) any such enactment or rule of law shall not apply to prevent evidence being given, questions being asked or statements, submissions, comments or findings being made about his conduct, and (b) none of those things shall be regarded as infringing the privilege of either House of Parliament. (3) The waiver by one person of that protection does not affect its operation in relation to another person who has not waived it. (4) Nothing in this section affects any enactment or rule of law so far as it protects a person (including a person who has waived the protection referred to above) from legal liability for words spoken or things done in the course of, or for the purposes of or incidental to, any proceedings in Parliament.” General control is exercised over debates by the Speaker of each House of Parliament. Each House has its own mechanisms for disciplining Members who deliberately make false statements in the course of debates. Deliberately misleading statements may be punishable by Parliament as a contempt. Alternatively, as the parliamentary Select Committee on Procedure (1988-89) has observed: “... there already exists a wide range of avenues which can be pursued by an aggrieved person who wishes to correct or rebut remarks made about him in the House. He can approach his Member of Parliament with a view to his tabling an Early Day Motion, or an amendment where appropriate; there may be cases which can be raised through Questions if some ministerial responsibility can be established; he can petition the House, through a Member; and he can approach directly the Member who made the allegations in the hope of persuading him that they are unfounded and that a retraction would be justified. We believe that in these circumstances, the House would not expect a rigid adherence to the convention that one Member does not take up a case brought by the constituent of another, particularly if the latter was the source of the statement complained of, and so long as the courtesies of proper notification were observed.” A Joint Committee of both Houses of Parliament was set up in July 1997 and tasked with reviewing the law of parliamentary privilege. The Committee received written and oral evidence from a wide variety of sources from within the United Kingdom and abroad and held fourteen sessions of evidence in public. Its report was published in March 1999. Chapter 2 sets out its conclusions on parliamentary immunity: “38. The immunity is wide. Statements made in Parliament may not even be used to support a cause of action arising out of Parliament, as where a plaintiff suing a member for an alleged libel on television was not permitted to rely on statements made by the member in the House of Commons as proof of malice. The immunity is also absolute: it is not excluded by the presence of malice or fraudulent purpose. Article 9 protects the member who knows what he is saying is untrue as much as the member who acts honestly and responsibly. ... In more precise legal language, it protects a person from legal liability for words spoken or things done in the course of, or for the purposes of or incidental to, any proceedings in Parliament. 39. A comparable principle exists in court proceedings. Statements made by a judge or advocate or witness in the course of court proceedings enjoy absolute privilege at common law against claims for defamation. The rationale in the two cases is the same. The public interest in the freedom of speech in the proceedings, whether parliamentary or judicial, is of a high order. It is not to be imperilled by the prospect of subsequent inquiry into the state of mind of those who participate in the proceedings even though the price is that a person may be defamed unjustly and left without a remedy. 40. It follows that we do not agree with those who have suggested that members of Parliament do not need any greater protection against civil actions than the qualified privilege enjoyed by members of elected bodies in local government. Unlike members of Parliament, local councillors are liable in defamation if they speak maliciously. We consider it of utmost importance that there should be a national public forum where all manner of persons, irrespective of their power or wealth, can be criticised. Members should not be exposed to the risk of being brought before the courts to defend what they said in Parliament. Abuse of parliamentary freedom of speech is a matter for internal self-regulation by Parliament, not a matter for investigation and regulation by the courts. The legal immunity principle is as important today as ever. The courts have a duty not to erode this essential constitutional principle.” Article 40 of the Statute of the Council of Europe provides: “a. The Council of Europe, representatives of members and the Secretariat shall enjoy in the territories of its members such privileges and immunities as are reasonably necessary for the fulfilment of their functions. These immunities shall include immunity for all representatives to the Consultative Assembly from arrest and all legal proceedings in the territories of all members, in respect of words spoken and votes cast in the debates of the Assembly or its committees or commissions. b. The members undertake as soon as possible to enter into agreement for the purpose of fulfilling the provisions of paragraph a above. For this purpose the Committee of Ministers shall recommend to the governments of members the acceptance of an agreement defining the privileges and immunities to be granted in the territories of all members. In addition, a special agreement shall be concluded with the Government of the French Republic defining the privileges and immunities which the Council shall enjoy at its seat.” In pursuance of paragraph b above, the member States, on 2 September 1949, entered into the General Agreement on Privileges and Immunities of the Council of Europe. This provides, as relevant, as follows: “Representatives to the Parliamentary Assembly and their substitutes shall be immune from all official interrogation and from arrest and from all legal proceedings in respect of words spoken or votes cast by them in the exercise of their functions.” “During the sessions of the Parliamentary Assembly, the Representatives to the Assembly and their substitutes, whether they be members of Parliament or not, shall enjoy: a. on their national territory, the immunities accorded in those countries to members of Parliament; b. on the territory of all other member States, exemption from arrest and prosecution. ...” Article 5 of the Protocol to the General Agreement on Privileges and Immunities of the Council of Europe provides: “Privileges, immunities and facilities are accorded to the representatives of members not for the personal benefit of the individuals concerned, but in order to safeguard the independent exercise of their functions in connection with the Council of Europe. Consequently, a member has not only the right but the duty to waive the immunity of its representative in any case where, in the opinion of the member, the immunity would impede the course of justice and it can be waived without prejudice to the purpose for which the immunity is accorded.” Article 9 of the Protocol on the Privileges and Immunities of the European Communities, adopted in accordance with Article 28 of the Treaty establishing a Single Council and a Single Commission of the European Communities, provides: “Members of the European Parliament shall not be subject to any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties.” | 0 |
dev | 001-67071 | ENG | DNK | CHAMBER | 2,004 | CASE OF PEDERSEN AND PEDERSEN v. DENMARK | 4 | No violation of Art. 6-1 | Christos Rozakis | 7. On 20 October 1992 the first applicant, as the owner of 3 freshwater fish farms, was charged with offences against the Act on freshwater fish farms of 5 April 1989 (bekendtgørelse nr. 224), henceforth also called the 1989 Act, as allegedly he had intentionally exceeded the fixed feed quotas with danger or risk thereof to the environment, and with enrichment for himself. 8. On 13 September 1993 an indictment was submitted to the City Court in Fjerritslev (retten i Fjerritslev) before which the trial was scheduled for 9 December 1993. However, the trial was adjourned awaiting the outcome of a corresponding pending criminal case, considered to be a “test-case”, in which the defendant had alleged inter alia that the 1989 Act had no legal authority as it contravened articles of the Penal Code and provisions of the Environmental Protection Act (Miljøbeskyttelsesloven). The Government claimed that the adjournment was initiated by the first applicant’s counsel. The applicant contested this. It is undisputed, however, that the parties agreed to the adjournment and that no objections were raised against it. The proceedings in the test-case were finally determined on appeal by a High Court judgment of 21 September 1995. 9. Subsequent to a preliminary hearing held in the applicant’s case on 18 December 1995 it was decided to adjourn his case anew awaiting another corresponding pending criminal case, considered to be a test-case, in which the defendant had alleged that the 1989 Act had no legal authority as the European Commission had not been notified of it as allegedly prescribed by the 83/189/EEC Council Directive of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations, amended by the 88/182/EEC Council Directive of 22 March 1988. The proceedings in the corresponding case were finally determined on appeal in the autumn of 1996 when a High Court delivered its judgment. 10. The applicant’s trial commenced on 8 April 1997. Since a witness on the applicant’s behalf was prevented from appearing on that day, the trial continued and ended on 14 May 1997. By judgment of 28 May 1997 the City Court in Fjerritslev convicted the applicant and sentenced him to pay a fine of 68,000 Danish kroner (DKK). In addition a profit estimated to DKK 275,000 was confiscated. 11. On 9 June 1997 the applicant appealed against the judgment to the High Court of Western Denmark (Vestre Landsret) before which he was granted permission to procure an expert witness, who during the preparation of the case was requested to reply in writing to specific questions formulated by counsel, and approved by the prosecutor. 12. By judgment of 29 June 1998 the High Court of Western Denmark upheld the applicant’s conviction, but increased the fine to DKK 95,000 and the amount to be confiscated to DKK 384,000. 13. The applicant’s request of 7 July 1998 for leave to appeal against the High Court’s judgment to the Supreme Court (Højesteret) was granted by the Leave to Appeal Board (Procesbevillingsnævnet) on 23 November 1998. 14. The case was brought before the Supreme Court on 15 January 1999, where it was joined with the second applicant’s appeal (see below). II 15. On 26 October 1993, the second applicant, as manager of two limited companies which each owned a freshwater fish farm, was charged with offences against the amended Act of 31 September 1994 on freshwater fish farms partly in conjunction with the former Act of 5 April 1989 (bekendtgørelse nr. 900 jfr. tildels bekendtgørelse nr. 224), as allegedly he had intentionally exceeded the fixed feed quotas with danger or risk thereof to the environment, and with enrichment for the companies. 16. The case was brought before the City Court in Mariager (retten i Mariager) by the prosecution’s submission of an indictment of 8 March 1994, which was later extended by supplementary indictments. 17. In the period between September 1994 and October 1995 the case was adjourned awaiting the outcome of a corresponding pending criminal case, which was considered to be a test-case. 18. On 3 November 1995 the proceedings were adjourned at the request of the applicant’s counsel, who wished to submit a written pleading. On 21 November 1995 counsel requested an extension of the time-limit for submitting his pleading. On 12 February 1996 he stated that his pleading was approaching. On 21 March 1996 he was granted yet another extension of the timelimit, and on 17 April 1996 the pleading was submitted. 19. Further pleadings were submitted and additional preliminary issues were dealt with, inter alia with regard to counsel’s request that the applicant’s case be joined with another corresponding pending case. 20. On 4 October 1996 counsel was granted an extension of the timelimit to submit his rejoinder within eight weeks. 21. A hearing was held on 24 February 1997 and the case was scheduled to commence on 8 September 1997 as counsel had stated that he was unable to appear before that date. 22. On 16 September 1997 the City Court in Mariager convicted the applicant and sentenced him to pay a fine of DKK 275,000. In addition profits estimated to DKK 900,000 and DKK 200,000, respectively, were confiscated in the companies. 23. On 23 September 1997 the applicant appealed against the judgment to the High Court of Western Denmark, before which the case was ready to be listed for trial on 27 November 1997. As counsel was unable to appear on the proposed dates in January, February and May 1998, the case was scheduled for trial on 27 August 1998. 24. By judgment of 3 September 1998 the High Court of Western Denmark upheld the applicant’s conviction, but increased the fine to DKK 345,000 and the amounts to be confiscated to DKK 1,158,000 and DKK 240,000 respectively. 25. The applicant’s request of 11 September 1998 for leave to appeal against the High Court’s judgment to the Supreme Court was granted by the Leave to Appeal Board on 23 November 1998. 26. The case was brought before the Supreme Court on 15 January 1999, where it was joined with the first applicant’s appeal. The applicants jointly argued that the Act of 1989 had no legal authority as the European Commission had not been notified of it as allegedly prescribed by the 83/189/EEC Council Directive of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations, amended by the 88/182/EEC Council Directive of 22 March 1988, and that accordingly they should be acquitted. Moreover, they requested that the Supreme Court referred the question of the legal consequences of the non-notification to the European Court of Justice pursuant to the former Article 177 of the EC Treaty. 27. As to the latter the Prosecutor General procured an opinion from the Ministry of Justice of 29 January 1999, finding no basis for a preliminary reference, an opinion he endorsed. On 4 February 1999 the Supreme Court requested counsel’s comment on this issue. 28. On 17 February 1999 the applicants requested that an additional counsel be assigned to plead on the EU-law issues of the case. This was refused by the Supreme Court on 24 February 1999. The following day, the applicants requested that a named attorney substitute their counsel as to the EUlaw issues. This request was granted on 18 April 1999 and the proceedings were adjourned for eight weeks pending comments from the substituting counsel. 29. It appears that the substituting counsel three times was granted an extension of the time-limit to submit his comments, thus his first written pleading was submitted on 5 October 1999. 30. The Prosecutor General stated definitively on 3 November 1999 that he found no basis for referring the case to the Court of Justice for a preliminary ruling. 31. The exchange of pleadings on this question continued until 7 April 2000, as the substitute counsel three times requested that the Prosecutor General submit written replies to various questions put by counsel on the issue. Each time the replies were followed by a comprehensive pleading by the substitute counsel. 32. On 22 August 2000 the Supreme Court decided not to refer the case to the Court of Justice for a preliminary ruling, as it found that there was no obligation to notify the European Commission of the specific section of the Act on freshwater fish farms of 5 April 1989, with which the applicants were charged, and that there was no reasonable doubt that the section in question was in accordance with European Community legislation. 33. By judgment of 16 February 2001 the Supreme Court upheld the High Court’s judgment in respect of the first applicant, but reduced the amount to be confiscated to DKK 240,000, and by judgment of the same date the Supreme Court upheld the High Court’s judgment in its entirety in respect of the second applicant. | 0 |
dev | 001-86522 | ENG | GBR | ADMISSIBILITY | 2,008 | LLOYD v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza | The applicant, Mr David Lloyd, is a British national who was born in 1938 and lives in Wirral. He was represented before the Court by Mr Stephen Cussack, Wirral Citizens Advice Bureau. 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 9 September 1987, leaving two children born in 1975 and 1981. His claim for widows’ benefits was made in November 2002 and was rejected on 26 August 2003 on the ground that he was not entitled to widows’ benefits because he was not a woman. 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 applicant was not in receipt of child benefit at the time of his claim. 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 | 001-85567 | ENG | RUS | CHAMBER | 2,008 | CASE OF TIKHOV AND OTHERS v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property | Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | 4. The applicants live in various towns of Leningrad and Pskov Regions of Russia. 5. The applicants, all former or active military servicepersons, were entitled to certain service-related benefits, to be paid by the Ministry of Defence of the Russian Federation. In 2002 they sued the military authorities claiming the arrears related to those benefits. 6. On the dates set out in appendixes nos. 2, 3 and 4 the domestic courts granted the applicants' claims and ordered the military authorities to pay them the respective amounts. Some of the awards were denominated in Russian roubles (RUB), whereas others were denominated in United States dollars (USD). 7. On various dates the courts issued writs of execution. The applicants forwarded them with accompanying documents to the treasury office. However, the writs were returned to the applicants unexecuted. The treasury office explained to some of the applicants that the Ministry of Defence (the debtor) had no funds available. The applicants then addressed the writs of execution to the Ministry of Finance. However, the judgments remained unexecuted. 8. In March-April 2003 some of the applicants wrote letters to the Ministry of Finance and other State bodies seeking the enforcement of the judgments. The Ministry of Finance replied that they had no power to execute the judgments and transfer the money from the accounts of the Ministry of Defence without the consent of the latter. The Ministry of Defence informed the applicants that the judgments could not be executed since no funds had been allocated for that purpose. 9. On the dates set out in appendix no. 2 the applicants listed therein received the amounts due pursuant to the execution writs. They submitted copies of banking receipts as evidence in that respect. 10. The applicants listed in appendix no. 3 were awarded various sums of money denominated in USD, to be converted into RUB at a rate applicable on the date of the judgment. However, the payments were made to them at a rate applicable on the date of the execution, which was lower. As a result, they received lesser amounts in RUB than they had expected. The applicants claimed that the judgments in their favour were thus not executed in full. They submitted copies of banking receipts and information on the official exchange rates (those of the Central Bank) on the relevant dates. 11. Mr Sedykh, Mr Kositsyn and Mr Oleg Zakirov were also awarded various amounts denominated in USD (see appendix no. 4). Mr Sedykh was awarded a sum in USD at a rate applicable on the date of execution. The judgments in favour of Mr Kositsyn and Mr Oleg Zakirov did not indicate the exchange rate applicable for the payment. The applicants claimed that the judgments in their favour were not executed in full referring to the same arguments as the applicants listed in appendix no. 3 (see paragraph 10 above). According to the Government the judgments in favour of the applicants listed in appendix no. 3 and in favour of Mr Sedykh, Mr Kositsyn and Mr Oleg Zakirov were fully executed. 12. On 21 January 2003 the lawyer of the above two applicants addressed the writs of execution to the Ministry of Finance. According to the official stamp of the Ministry, they were received on the same day. 13. On 27 August 2003 the Ministry of Finance returned the documents along with the writ of execution to Mr Nikolaychuk on the ground that his lawyer had not submitted all the necessary supporting documents. According to the applicants all the necessary documents were submitted. In October 2003 the applicants' lawyer re-submitted the documents of Mr Nikolaychuk to the Ministry of Finance. 14. According to Ms Bobrova, her documents were apparently returned to her address indicated on the writ of execution. Since Ms Bobrova did not live at that address at the time, the post office sent the documents back to the Ministry of Finance. According to the Government, the Ministry of Finance have never received Ms Bobrova's documents. 15. The judgments in favour of Mr Nikolaychuk and Ms Bobrova (see appendix no. 4) are not executed to date. | 1 |
dev | 001-90165 | ENG | POL | CHAMBER | 2,008 | CASE OF DZIECIAK v. POLAND | 3 | Remainder inadmissible;Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Non-pecuniary damage - award | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | 5. The applicant was born in 1948 and lived in Warsaw. 6. On 17 September 1997 the applicant was arrested by the police. On 18 September 1997 the Warsaw District Court (Sąd Rejonowy) decided to place the applicant in pre-trial detention in view of the reasonable suspicion that he had been involved in drug trafficking as part of an organised criminal gang. In particular, the applicant was suspected of having participated in the recruitment of persons used for international drug trafficking. 7. The applicant’s pre-trial detention was extended on several occasions. 8. On 15 May 1998 the applicant was indicted before the Warsaw Regional Court. 9. The applicant, who had suffered two heart attacks in 1993 and 1995, submitted that his health deteriorated after his arrest. On 22 July 1998 he consulted a cardiologist. On 8 September 1998 the Medical Panel (Komisja Lekarska) decided that there were no reasons militating against the applicant’s detention, provided that the detention centre in which he was detained possessed a hospital wing. 10. In September 1998 the applicant and several co-accused were indicted before the Warsaw Regional Court (Sąd Okręgowy). 11. On 22 January 1999 the applicant consulted a non-prison doctor who prescribed a coronary angiography (koronografia). The applicant submitted that he had not been informed of this. 12. On 1 February 1999 the Medical Panel again found that the applicant could be held in a detention centre if it had a hospital wing. 13. On 4 August 1999 the applicant was again examined by a nonprison doctor who confirmed the need for a coronary angiography. The applicant submitted that the prison authorities refused to carry out this procedure. He complained about this to the Helsinki Foundation for Human Rights in Warsaw. 14. Between 18 and 31 August 1999 the applicant was treated in the hospital wing of the detention centre. 15. On 23 August 1999 the Warsaw Regional Court extended the applicant’s detention, finding that the grounds for it remained valid. On the same date the court dismissed the applicant’s request for release finding that the applicant’s state of health was not incompatible with detention. 16. The applicant’s detention was subsequently extended by the Supreme Court on 16 September 1999, on the ground of the reasonable suspicion against him. 17. In October 1999 the trial court decided to return the case to the prosecutor and to join the investigation to another case concerning organised crime. On 21 October 1999 the Warsaw District Court ordered the applicant’s detention in connection with this set of criminal proceedings. 18. On 2 November 1999 the prison authorities replied to the Helsinki Foundation regarding the applicant’s health care. The authorities stated that the applicant had been examined by doctors on several occasions and that the cardiologist had not ordered the coronary angiography but had only suggested it as one of several possible treatments. The applicant’s state of health did not preclude detention and he could receive any necessary treatment in the hospital wing of the detention centre. They reiterated that the applicant was detained in a detention centre which had hospital facilities and that, if necessary, he would be hospitalised. 19. On 19 November 1999 the applicant was transferred to the Łódź detention centre, which had no hospital wing. The applicant argued that this was in reprisal for his complaint to the Helsinki Foundation. In March 2000 the applicant lost consciousness and was transferred to the Łódź Prison Hospital, where he remained for 10 months. 20. On 6 January and 24 March 2000 the Warsaw Regional Court, upon an application from the Wrocław Regional Prosecutor (Prokurator Okręgowy), further extended the applicant’s pretrial detention, relying on the reasonable suspicion that he had committed the offences in question and on the complexity of the case, which justified the continuation of the investigation. 21. On 7 April 2000 the Warsaw Court of Appeal (Sąd Apelacyjny), on an application from the prosecutor, decided to further extend the applicant’s detention until 20 October 2000. In addition to the existence of a reasonable suspicion that the applicant had committed the offences, the court relied on the complexity of the case, the severity of the anticipated penalty and the need to secure the proper conduct of the investigation. Finally, the court found no evidence that the applicant, and four other co-accused, should be released from detention due to their various health conditions. The court added, however, that it was for the prosecutor to order a medical examination of the accused and to reach a decision regarding their further detention. 22. On 8 June 2000 the Supreme Court (Sąd Najwyższy) decided to amend the Court of Appeal’s decision and extended the applicant’s detention pending the outcome of the investigation until 10 October 2000. 23. On 3 October 2000 the Warsaw Court of Appeal, on another application from the appellate prosecutor, decided to extend the applicant’s pre-trial detention, and that of fourteen co-accused, until 10 February 2001. The court repeated the reasons given in previous decisions. 24. On 4 October 2000 a coronary angiography and other tests were carried out in Łódź University Hospital. The applicant submitted that the results of the tests provided evidence of his very serious state of health and proof that his life was in danger. 25. On 14 November 2000 the Warsaw Court of Appeal dismissed the applicant’s appeal against the decision of 3 October 2000 extending his detention. The appellate court, referring to the applicant’s state of health, established that he could be detained and treated in the prison hospital until the date of the surgery. 26. On 7 December 2000 the applicant was examined by doctors from Łódź University Hospital, who ordered that he should undergo heart surgery in a non-prison hospital. A medical certificate of 24 January 2001, issued by Łódź Prison Hospital, confirmed the need to carry out a coronary artery bypass graft (CABG, a so-called heart bypass operation). 27. On 24 January 2001 the applicant was transferred to the Mokotów Detention Centre in Warsaw, as the surgery was to be carried out in the Anin Institute of Cardiology. 28. On numerous occasions the applicant applied to be released from detention. He justified these requests by referring to the state of his health and the fact that his imminent surgery could not be carried out in the hospital wing of the detention centre but necessitated his release from detention. Nevertheless, on 6 February 2001 the court further extended the pretrial detention of the applicant and his co-accused. The decision did not contain any particular reference to the applicant’s health. 29. On 27 April 2001 the applicant was indicted before the Warsaw Regional Court. 30. In April 2001 the applicant was examined by doctors in the Anin Institute of Cardiology, who agreed to carry out laser heart surgery on the applicant. 31. On 15 May 2001 the Warsaw Court of Appeal again extended the applicant’s detention. The court found: “In the instant case, [the applicant] was arrested on 17 September 1997 and detained on remand on 18 September 1997 by the decision of the Warsaw District Court. On 9 May 2001 the pre-trial detention of 22 co-accused was extended until 11 October 2001. The procedural grounds therefore justify the extension of detention also with respect to [the applicant] until 11 October 2001. Moreover, there are no grounds for lifting his pre-trial detention under Article 259 of the Code of Criminal Procedure. As [the applicant’s] pre-trial detention has lasted for over 3 years and 6 months, it is necessary to schedule the date of the hearing and to plan the trial so that the provisions of the [Polish Code of Criminal Proceedings] and Article 6 of the [Convention] are respected - that is, the right to a trial within a reasonable time.” 32. The applicant lodged an appeal against the decision but on 12 June 2001 the Warsaw Court of Appeal dismissed it. 33. The Anin Institute of Cardiology scheduled laser heart surgery on the applicant and ordered that he be admitted to the Institute on 27 July 2001. The applicant’s representative submitted that the applicant was never informed of this. The Government submitted that the surgery could not take place on that date on account of prolonged renovation work to the Institute. 34. Between 8 August and 10 September 2001 the applicant was hospitalised in the Warsaw prison hospital for pneumonia. 35. On 5 September 2001 the Anin Institute of Cardiology sent a letter to the applicant, informing him that the second appointment for his laser heart surgery had been scheduled for 21 September 2001. The applicant submitted that the letter was delayed and that he had been informed about it after the date in question. From the copy of the envelope submitted by the applicant’s wife, it appears that the letter was posted on 10 September 2001; a stamp indicates that it was delivered to the registry of the Mokotów Detention Centre on 11 September 2001 [Sekretariat, Areszt Śledczy Warszawa; 11 Wrz. 2001]. The envelope is marked “registered post - v. urgent” [polecony – b. pilne] and contains the following stamp “Censored 24.09.01” [Ocenzurowano]. The Government maintained that this letter never arrived at the Mokotów Detention Centre and that the authorities had not been aware that the Institute had scheduled the date of the applicant’s surgery. 36. The Anin Institute of Cardiology again rescheduled the date of the applicant’s heart surgery and gave him an appointment for 26 October 2001. It appears that this notification was delivered to the detention centre by the applicant’s lawyer in person. 37. On 1 October 2001 the applicant was examined by the Medical Panel, which gave a decision on the same date. The decision contained a reference to his medical record and the information that he would be admitted to undergo surgery at the Anin Institute of Cardiology on 26 October 2001. The decision states: “16. The Panel’s decision - It is necessary to change the preventive measure. 17. The grounds for the decision - The patient requires surgical treatment at the Anin Institute of Cardiology. The date of admittance to the Institute is scheduled for 26 October 2001. Further ... detention is a threat to the patient’s health.” This decision of the Medical Panel was not sent to the trial court until a later date (see paragraph 44 below). 38. On 5 October 2001 the Warsaw Court of Appeal extended the pretrial detention of the applicant and the other co-accused for a further four months. The court did not examine the applicant’s state of health or any circumstance that would concern him individually. 39. On 12 October 2001 Dr M.M., from the hospital wing of the Mokotów Detention Centre, issued a medical certificate, which was sent by fax to the trial court on 15 October 2001. The certificate stated: “The prisoner’s complaints: Has been treated for many years for coronary thrombosis, hypertension. Had suffered heart attacks. Recent effort-related chest pain. Established during examination: Conscious, sound blood circulation and respiration ... Diagnosis: Ischaemic heart disease, has had heart attacks, currently has relatively sound blood circulation. Had pneumonia. Conclusions: At present he can participate in the court’s hearings. The patient was examined by the Medical Panel on 1 October 2001.” 40. On 16 October 2001 the trial against the applicant and forty-four coccused started before the Warsaw Regional Court. The applicant was brought to the courtroom to attend the hearing of 16 October 2001. At the hearing the court informed the applicant’s lawyer that a medical certificate of 12 October 2001 had been submitted on the previous day. In the light of the certificate, the court dismissed the applicant’s request to sever the charges against him, holding that his health did not justify a separate examination of the case. 41. The applicant attended the second hearing on 18 October 2001. 42. At the next hearing, held on 19 October 2001, the applicant was heard and the statements given by him at the investigation stage were read out. The trial court adjourned the hearing until Monday 22 October 2001. 43. On 22 October 2001 the applicant was brought to the court room, where he lost consciousness before the hearing began. An ambulance was called. At 9.30 a.m. he was transferred back to the hospital wing of the Mokotów Detention Centre. He was examined by a doctor, who considered that he did not require hospitalisation but was unfit to participate in the hearing on that day. After examination in the hospital wing the applicant was transferred to his cell in the detention centre. 44. The hearing started later than scheduled, due to the commotion caused by the applicant’s fainting and the arrival of the ambulance. The presiding judge enquired about the applicant’s health by calling the Mokotów Detention Centre and the Anin Institute of Cardiology. From the latter the judge learned that the applicant’s admittance to the Institute was scheduled for 26 October 2001. The judge was also informed by the detention centre’s authorities that the applicant had been examined by the Medical Panel on 1 October 2001 but that the report had not yet been confirmed by the relevant medical authorities, and thus could not be submitted to the court. Nevertheless, at the second break in the hearing, the Mokotów Detention Centre sent the presiding judge, by fax, the Medical Panel’s decision, which concluded that the applicant’s continued detention represented a risk to his health (see paragraph 37 above). 45. On 22 October 2001 at 9.30 a.m. the applicant was examined by a doctor from the hospital wing of the detention centre on account of a worsening of his health. The doctor issued a certificate stating that the applicant did not require hospitalisation but was unfit to participate in the hearing on that day. 46. At 3.45 p.m. on 22 October 2001 the applicant was taken from his cell to the hospital wing of the Mokotów Detention Centre; he was unconscious. The medical team managed to resuscitate the applicant, so that he began breathing on his own again and his heart beat was restored. They also attempted to locate a hospital that would admit him. The applicant was taken in a serious condition to hospital in Lindley Street, Warsaw, where he died on 25 October 2001 without regaining consciousness. 47. On 22 October 2001 the trial court decided to examine the charges against the applicant in a separate set of proceedings, as his health prevented him from participating in the hearings. The court further decided to release the applicant from detention on 26 October 2001 and to transfer him on that date to the Anin Institute of Cardiology for surgery. 48. On 8 November 2001 the Warsaw Regional Court decided to discontinue the criminal proceeding against the applicant on the ground that he had died on 25 October 2001. On 10 August 2002 the trial court convicted thirty-seven defendants and sentenced them to prison terms varying from 2 to 12 years. 49. On 30 October 2001 the applicant’s wife requested the Warsaw District Prosecutor to start an investigation into the applicant’s death. On 12 November 2001 the Helsinki Foundation for Human Rights made a similar request, informing the prosecutor that the applicant had not received adequate medical care in the Mokotów Detention Centre. 50. On 31 October 2001 a post-mortem examination of the applicant’s body was carried out by the Warsaw Medical Academy (Akademia Medyczna w Warszawie). The examination concluded that the cause of the applicant’s death was acute coronary insufficiency, given the advanced stage of his heart disease. 51. On 20 December 2001 the Warsaw District Prosecutor initiated an investigation into the allegations that the applicant’s death had been caused by the failure of the doctors in the Mokotów Detention Centre to secure him adequate medical care. 52. On 13 February 2002 the prosecutor heard the applicant’s wife. She described how her husband’s health had constantly deteriorated, as observed by her during her regular bi-monthly visits. His serious health problems started when he was transferred to the Łódź Detention Centre, where there was no hospital facility. After he lost consciousness he spent several months in a hospital, and at that time he underwent a coronary angiography. On his return to the Warsaw Detention Centre, his health deteriorated further and he had been coughing badly, and suffered from chest pain. His complaints, however, were dismissed on each occasion by the prison doctor, a general practitioner. Only after collapsing 6 months later was he transferred to the Warsaw Prison Hospital, where he was diagnosed with pneumonia and treated accordingly. At that time it was recommended that he undergo heart bypass surgery. During the hearings which started a few days before his death the applicant was in very poor health. The applicant’s wife also testified that he had received notification about the first scheduled operation in the Anin Institute of Cardiology, set for 21 September 2001, but only after that date. She went to the Anin Institute of Cardiology to obtain the second appointment for 26 October 2001, which she personally transmitted to the applicant’s lawyer so that he could notify the detention centre. However, the applicant passed away before that date. 53. On 28 March 2002 the prosecutor heard the Head of the Warsaw Prison Hospital. She testified that the applicant had stayed in her ward until 10 September 2001 because he had pneumonia and was being prepared for a bypass operation, to be carried out in the Anin Institute of Cardiology. Since the operation could not be carried out at that time, the applicant was returned to his cell in the detention centre. On the same date the prosecutor questioned a doctor working at the prison hospital, who was consulted by the applicant in 1997, on two occasions in 1998, on one occasion in 1999 and on 2 July 2001. 54. On 29 March 2002 the prosecutor heard another doctor, employed in the prison hospital, who had treated the applicant during his stay in the hospital, that is, until 10 September 2001. Like the previous witness, this doctor did not believe that the applicant had been simulating, had complained excessively or had not been following the doctor’s recommendations. 55. On 29 March and 10 September 2002 the prosecutor heard Dr M.M. who worked in the hospital wing of the Mokotów Detention Centre. He stated that, according to a note made by him in the applicant’s medical record, on 27 September 2001 he learned that the Anin Institute of Cardiology had decided to admit the applicant. He forwarded this request to the prison authorities, as it was necessary to obtain a decision from the Medical Panel. The prosecutor showed the witness a copy of the letter from the Anin Institute of Cardiology of 5 September 2001, stating that the date of the applicant’s admittance to hospital was scheduled for 21 September 2001. The witness was unable to ascertain whether he had previously seen this letter or whether his annotation in the applicant’s medical record of 27 September 2001 had been made in connection with it. 56. On 4 April 2002 a doctor from the Anin Institute of Cardiology was heard by the prosecutor. She testified that in March 2001 the Mokotów Detention Centre requested the Institute to examine the applicant. He was diagnosed with coronary thrombosis and recommended for a laser operation. The witness stated: “On 27 June 2001 a letter was sent to the detention centre with a request to stop administering aspirin to Mr Dzieciak; it also set the date of his admittance to the Institute for 6 July 2001. The patient did not show up. Again the patient was invited for 21 September 2001 – he did not turn up. The third summons was for 26 October 2001 – he did not show up. We received information that the patient had died on 25 October 2001 (we received this information from a judge). As far as I know the patient did not show up because he had not obtained leave from the detention centre, and we had not agreed to conduct the operation in the presence of guards as we had no conditions for that (moreover, we had repair work going on at that time).” The witness also stated that the applicant’s wife, who had apparently learned about the planned date of the operation, had informed the hospital administration about the difficulties experienced by the applicant in obtaining leave from the detention centre. The hospital’s administration had contacted the Mokotów Detention Centre and learned that the decision on whether or not to grant the leave would be taken before 26 October 2001. The doctor also confirmed that a judge from the Regional Court had called the hospital on 22 October 2001, enquiring whether the applicant had an operation scheduled and saying that a fax with this information had been sent to the court. 57. Finally, on 4 April 2002 the prosecutor questioned another doctor from the prison hospital, who had treated the applicant on 20 and 22 October 2001. He testified that on 22 October 2001 the applicant was brought back from the court hearing at 9.30 a.m. suffering from chest pain. He conducted an ECG test and administered medication so that the applicant’s condition was stable. The witness considered that the applicant had not required hospitalisation but issued a certificate stating that he should not attend the hearing on that day. At 3.33 p.m. on the same day the applicant was brought from his cell on a stretcher; he was unconscious, had no heart beat and was not breathing. After resuscitation his heart beat was restored and he began to breathe independently. The witness ordered an ambulance and contacted hospitals to find one which would admit the applicant. Finally, the fourth hospital, located on Lindley Street, agreed to admit the applicant. 58. The prosecutor also requested the Mokotów Detention Centre to clarify when the letter of 5 September 2001 from the Anin Institute of Cardiology, informing the authorities of the applicant’s scheduled admittance on 21 September 2001 for surgery, had reached the detention centre. According to the Government, the Head of the Mokotów Detention Centre replied that there was no evidence that such a letter had ever arrived at the detention centre; however, the letter informing about the next date for surgery, scheduled for 26 October 2001, had reached the detention centre on 26 September 2001. 59. On 14 August 2002 the Anin Institute of Cardiology confirmed to the prosecutor that the letters indicating the dates of the applicant’s admittance to the Institute (for 6 July and 21 September 2001) had been sent by ordinary mail to the Mokotów Detention Centre. 60. On 23 September 2002 the prosecutor ordered the Gdańsk Medical Academy to prepare an expert opinion. The prosecutor asked the experts to answer following questions: “1. Was the death of Zbigniew Dzieciak a consequence of: - unsuccessful medical treatment for which nobody can be held responsible (niezawinione niepowodzenie lekarskie), - medical malpractice, - failure to apply due diligence during his medical treatment at the Mokotów Detention Centre and hospital in Lindley Street, - other circumstances, different from the above? 2. Did the state of health of Zbigniew Dzieciak allow him to remain in the detention centre and to participate in the trial, including lengthy court hearings?” 61. In 1 July 2003 the experts submitted their opinion to the prosecutor. The experts relied on the applicant’s medical file and on the post-mortem examination. They concluded as follows: “...in answer to question no. 1, we consider that [the applicant’s] death was the consequence of unsuccessful medical treatment for which nobody could be held responsible. Having analysed the file, we find that there was no medical malpractice during the period between the applicant’s arrest and his death. On the basis of the submitted documents we cannot perceive any lack of diligence during his treatment in the detention centre and in hospital in Lindley Street. We have, however, reservations about the fact that the date of the applicant’s cardio-surgical intervention was rescheduled twice (a conclusive elucidation of the grounds for this ‘postponing’ is not within the competence of the undersigned experts). Nevertheless, the type and extent of changes in the heart muscle, as established by the post-mortem examination, do not allow [us] to conclude if, and to what extent, the surgery would have led to improvement in the functioning of the applicant’s left ventricle of the heart. Ad 2. In response to the second question, it should be noted that when the applicant’s health was clearly deteriorating and in connection with the approaching surgery, the Medical Panel gave a decision on the necessity of changing the preventive measure, as a continued stay in detention constituted a threat to the patient’s health. On the basis of the documents collected, it is not possible to establish the period when medical indications appeared indicating a need to change the preventive measure. We believe that it is impossible to establish beyond doubt a causal link between the deterioration in the applicant’s health and his participation in the trial.” 62. On 28 August 2003 the Warsaw District Prosecutor discontinued the investigation. The decision reads: “On 12 November 2001 the Helsinki Committee informed the District Prosecutor of the possibility that an offence had been committed under Article 231 or 160 of the Criminal Code. It appears from the request that on 22 October 2001 the applicant was called from his cell for transferral to the court hearing, and that his state of health subsequently deteriorated. Attempts were made until evening to resuscitate him in the hospital of the detention centre. In the evening he was taken to hospital in Lindley Street where, on 24 October 2001, he died. Following the post-mortem examination the expert from the Warsaw Medical Academy established that the cause of [the applicant’s] death had been acute coronary insufficiency, given the advanced stage of [his heart disease]. In the expert’s opinion there was no evidence that would allow [him] to establish that the applicant’s pneumonia had had a bearing on his death. [The Head of the Prison Hospital] testified that [the applicant] had been on her ward once – he was admitted on 8 August 2001 with symptoms of pneumonia and was released on 10 September 2001 in good condition. He was again admitted to the hospital on 22 October 2001 and he was transferred to hospital in Lindley Street after 5.20 p.m. An expert opinion from the Gdańsk Medical Academy was ordered for the purpose of establishing the circumstances of [the applicant’s] death. From the submitted expert opinion it appears that the applicant’s death was a consequence of unsuccessful medical treatment for which nobody could be held responsible. Having analysed the file the experts were unable to find evidence of medical malpractice during the period between the applicant’s arrest and his death, could not perceive any [missing: lack of diligence] during his treatment in the detention centre and subsequently in hospital in Lindley Street. In the experts’ view it had not been possible to establish beyond doubt a causal link between the deterioration in the applicant’s health and his participation in the trial. In the light of the above it must be established that the evidence gathered does not allow the conclusion that [the applicant’s] death was a consequence of the actions or omissions of third persons. Accordingly it has been decided as above.” 63. The applicant’s wife, supported by the Helsinki Foundation, lodged an appeal against this decision. She complained that the prosecutor had failed to examine thoroughly the allegations raised in her request to initiate the proceedings. In particular, there had been no examination of why, having lost consciousness in the court room on 22 October 2001, the applicant was not immediately taken to hospital but was returned to the detention centre. 64. On 19 January 2004 the Warsaw District Court dismissed the appeal, reiterating the prosecutor’s findings that the applicant’s death was “unsuccessful medical treatment”. The court had not made any new findings relating to the course of the events. It noted that the information about the surgery scheduled for 21 September 2001 had not reached the Mokotów Detention Centre. However, on 26 September 2001 the detention centre received information that the surgery could take place on 26 October 2001, provided that the applicant received authorisation. The court further established that on 1 October 2001 the Medical Panel had given a decision finding that a further stay in detention would pose a risk for the applicant’s health; that ruling had been validated by the Head of the Panel on 22 October 2001. Previously, on 16 October 2001, the Head Doctor of the Prison Medical Service had ordered that the decision be supplemented by a copy of the results of the coronary angiography. On 23 October 2001 the Panel’s decision was faxed to the trial court, at whose disposal the applicant remained. The court concluded: “Taking into account the above circumstances, and the fact that it was not possible to establish a causal link between the applicant’s participation in the trial [and the deterioration in his health] or to establish whether, and to what extent, the surgery would have led to an improvement in the functioning of the applicant’s left ventricle of the heart, it must be concluded that the prosecutor was right in finding no evidence in the circumstances of the instant case pointing to the commission of an offence, and that the prosecutor’s decision was based on Article 7 of the Code of Criminal Procedure. Accordingly, the impugned decision shall be upheld.” 65. On 12 July 2002 the applicant’s wife lodged a civil claim with the Warsaw Regional Court, seeking compensation in connection with her husband’s death. She maintained that her late husband had not received proper medical treatment in the detention centre and had been obliged to participate in the hearings despite his poor state of health. The applicant’s wife applied for legal aid, submitting that her monthly income, comprising her salary as a cleaning lady and disability benefit for her daughter, who suffered from cerebral palsy, was equivalent to EUR 370. The applicant’s representative submitted that the court had exempted her from paying court fees but had dismissed her application for legal aid. 66. On 26 January 2004 the Warsaw Regional Court dismissed the claim. The court examined the treatment that the applicant had undergone since his arrest in 1997 and the prosecutor’s case file concerning the investigation into the applicant’s death. It found that the State Treasury could not be held liable for damage, as it had not been established that the applicant’s death had been caused by unlawful actions or omissions of the detention centre officials. In addition the court found that the applicant had failed to prove that her financial situation had deteriorated as a result of her husband’s death. 67. The applicant’s wife appealed against the judgment. 68. On 14 November 2004 the Warsaw Court of Appeal dismissed the appeal. The court agreed with the first-instance court’s assessment that the applicant’s wife had not sustained damage as a consequence of her husband’s death, and that her claim had thus been ill-founded. The court also dismissed as unsubstantiated the applicant’s complaints that the prison authorities had contributed to her husband’s death by failing to provide him adequate medical care. 69. The applicant failed to lodge a cassation appeal with the Supreme Court against that judgment. She did not apply to a court to have a legal-aid lawyer appointed for the purpose of lodging such appeal on her behalf. 70. The relevant domestic law and practice concerning the imposition of pre-trial detention (aresztowanie tymczasowe), the grounds for its extension, release from detention and the rules governing other, socalled “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. The Code sets out the margin of discretion as to the continuation of a specific preventive measure. In so far as relevant, Article 257 provides: “1. Pre-trial detention shall not be imposed if another preventive measure is sufficient.” The relevant part of Article 259 provides: “1. If there are no special reasons to the contrary, pre-trial detention 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.” | 1 |
dev | 001-76748 | ENG | ALB | CHAMBER | 2,006 | CASE OF BESHIRI AND OTHERS v. ALBANIA | 2 | Violation of Art. 6-1 (non-enforcement);Not necessary to examine Art. 13;Violation of P1-1;Remainder inadmissible;Damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 4. The applicants were born in 1931, 1948, 1954 and 1944 respectively and live in Tirana (Albania) and Varese (Italy). 5. The applicants’ father owned a villa with a surface area of 42.70 sq. m and two adjacent plots of land measuring approximately 46.70 sq. m and 48.55 sq. m respectively. From 1946 to 1978 the applicants’ father rented the villa to B.N.’s father. 6. On an unspecified date, as the villa was uninhabitable, the State granted the applicants’ father a compulsory loan of 16,204 leks (ALL) for renovation of the villa. 7. In 1976 B.N. constructed two additional buildings on the plot of land measuring 48.55 sq. m. By a decision of 23 February 1976 the Tirana District Court allocated the additional buildings to B. N. 8. As a result of the applicants’ father’s failure to repay the debt, the villa was nationalised by virtue of decision no. 133 of 14 July 1978. From 1978 onwards B.N.’s family continued to live in the villa as tenants of a State-owned property. 9. In 1996, pursuant to the Property Restitution and Compensation Act (“the Property Act”), the applicants lodged a claim with the Tirana Commission on Property Restitution and Compensation (Komisioni I Kthimit dhe Kompensimit te Pronave). 10. On 22 May 1996 the Tirana Commission, holding that the nationalisation of the applicants’ father’s villa had been illegal, awarded the applicants the villa (with a surface area of 42.70 sq. m) and the plot of land measuring 46.70 sq. m, subject to the repayment of ALL 1,204 (representing the outstanding amount of their father’s unpaid debt to the State which had led to the nationalisation of the properties). With regard to the plot of land measuring 48.55 sq. m, in view of B.N.’s investment in the additional building, the Commission upheld his right of first refusal on the purchase of the land. 11. On an unspecified date in 1997, B.N., the tenant of the villa which had been allotted to the applicants, brought a civil action before the Tirana District Court, claiming property rights over the villa and the adjacent plot of land. Moreover, he alleged that the Commission’s decision of 22 May 1996 should be declared null and void, in so far as it was in breach of section 13 of the Property Act. 12. On 15 July 1997 the Tirana District Court declared the Commission’s decision of 22 May 1996 null and void. It found that according to an expert report, the outlays by the State and B.N.’s father on structural changes and annexes to the original building amounted to more than 85% of the property’s original value. The Commission’s decision was therefore held to have been in breach of section 13 of the Property Act. 13. On 7 November 1997 the Tirana Court of Appeal, having examined an appeal by the applicants alleging a violation of their property rights, upheld the District Court’s decision and dismissed the appeal. 14. The applicants appealed to the Civil Division of the Supreme Court, which on 6 May 1998 quashed the decisions of the above courts. It held that the decisions had been based on an expert report which was illogical and contained incorrect calculations and accordingly sent the case back for rehearing. 15. On 11 April 2001 the Tirana Court of Appeal, rehearing the case, declared the Commission’s decision null and void. Relying on a new expert report, it held that the nationalisation of the applicants’ father’s villa had been in accordance with substantive law requirements at the material time and that, consequently, the applicants could not benefit from the process of restitution of property. Moreover, the court upheld the applicants’ property rights over the two adjacent plots of land and, pursuant to section 16 of the Property Act, decided on their right to receive compensation in one of the forms provided for by law. 16. On 15 February 2002 the Civil Division of the Supreme Court dismissed an appeal by the applicants as being ill-founded. 17. The applicants lodged an appeal with the Constitutional Court on the basis of Article 131 (f) of the Constitution. They alleged that the Supreme Court’s decision and the Court of Appeal’s judgment had been unconstitutional. 18. On 24 September 2002 the Constitutional Court, in accordance with section 31 of the Constitutional Court Organisation and Operation Act (Law no. 8577 of 10 February 2000), decided de plano to declare the applicants’ complaint inadmissible as being “outside its jurisdiction”. 19. In a letter of 22 March 2004 the applicants informed the Registry that the authorities had failed to comply with the final decision of 11 April 2001 relating to the compensation issue. 20. The Albanian Constitution reads as follows: “1. The right of private property is protected by law. 2. Property may be acquired by gift, inheritance, purchase, or any other ordinary means provided for by the Civil Code. 3. The law may provide for expropriations or limitations in the exercise of a property right only in the public interest. 4. Expropriations, or limitations of a property right that are equivalent to expropriation, shall be permitted only in return for fair compensation. 5. A complaint may be lodged with a court to resolve disputes regarding the amount/extent of compensation due.” “In the protection of his constitutional and legal rights, freedoms and interests, and in defence of a criminal charge, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.” “State bodies shall comply with judicial decisions.” “The Constitutional Court shall decide on: ... (f) final complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.” “1. Within two to three years from the date when this Constitution enters into force, Parliament, guided by the criteria laid down in Article 41, shall pass laws for the just resolution of different issues relating to expropriations and confiscations carried out before the approval of this Constitution. 2. Laws and other normative acts relating to expropriation and confiscation that were passed before the entry into force of this Constitution shall be applied provided they are compatible with the latter.” 21. The Property Restitution and Compensation Act (Ligji për kthimin dhe kompensimin e pronës) underwent several amendments during the past ten years. 22. The Property Act of 1993 (Law no. 7698 of 15 April 1993, as amended by Law no. 8084 of 1996), as in force at the time, in its relevant parts reads as follows: “Former owners and their legal heirs have the right of ownership. A former owner shall have the right either to have allocated the original land or to be awarded compensation in kind if one of the following conditions is met: (1) the alleged property was pasture, meadow, forestry land, or agricultural or non-agricultural land; (2) the alleged property was not subject to Law no. 7501 of 19 July 1991; (3) the alleged property is currently State-owned; (4) the alleged property has been designated as suitable for construction and is situated within the boundaries of a city. The restitution or compensation in kind shall not exceed 10,000 sq. m pursuant to section 1(4) of Decree no. 1359 of 5 February 1996, as amended by Law no. 8084 of March 7 1996.” “Former owners shall be entitled to restitution of their former buildings without having to repay outlays made by the Government or other owners on structural alterations, annexes or floor additions to former private buildings, where such outlays amount to up to 20% of the building’s value. Former owners shall be entitled to restitution of their former buildings once they have repaid more than 20% of the value of outlays, where such outlays amount to between 20% and 50% of the building’s value. The value of the outlays shall be calculated on the basis of construction prices at the time of the building’s restitution. A building shall remain in co-ownership where the value of such outlays is more than 50% of the building’s value. .... The courts shall have authority to resolve disputes between parties.” “Where a building site or agricultural land that has been reclassified as a building site is occupied by a permanent construction, the former owners shall be compensated, within the limit fixed for expropriation, by one of the following methods: (a) by means of State bonds, equivalent to the compensation owed, and with first option of acquiring shares in State enterprises being privatised by the Government or in other activities carried out through the granting of loans; (b) by means of an equivalent plot of land or building site near to an urban area, in accordance with the general urban-development regulations; (c) by means of an equivalent plot of land in a tourist zone, in accordance with the general urban-development regulations. Any outstanding amount after the application of (b) and (c) above shall be compensated according to other methods established by this Act. The Council of Ministers shall have the authority to define more detailed rules for determining the methods and deadlines for such compensation.” 23. The new Property Act enacted in 2004 provides for two forms of restitution of property, namely the return, under certain circumstances, of the original property and compensation in the event of the impossibility for the authorities to return the original property. The Act provides for five forms of compensation: (a) a property of the same kind; (b) a property of any other kind; (c) shares in State-owned companies; (d) the value of a State-owned property in the privatisation process, (e) a sum of money (section 11). 24. The Act instituted the State Committee for Property Restitution and Compensation (Komiteti Shteteror per Kthimin dhe Kompensimin e Pronave), composed of five members elected by Parliament. Its role is to decide on the lawfulness of district committees’ decisions. At district level decisions on restitution and compensation claims are to be taken by District Committees for Property Restitution and Compensation (section 15). 25. In accordance with the Act, the persons entitled to claim restitution or compensation have to lodge an application for such purpose with the District Committee by 31 December 2007 (section 19). The Act grants the committee discretion to decide which one of the forms of compensation should be granted. The entitled persons have to express in writing their preferences regarding the form of compensation to be awarded. The District Committee’s decision may be appealed against to the State Committee (section 11). 26. In order to comply with the committees’ decisions awarding payment of pecuniary compensation, section 23 of the above-mentioned Act provides for the establishment of a ten-year Property Compensation Fund, whose aim is to provide financial support for such awards. 27. The above-mentioned Act was scrutinised by both the Constitutional Court and the Supreme Court. 28. On 24 March 2005 the Supreme Court, Joint Colleges, concluded that the Property Act of 2004 had no retroactive effect and that its provisions could therefore not have any impact on property rights recognised by administrative or court decisions given before its entry into force. 29. In November 2005 the Government (as newly elected on 3 July 2005) introduced in Parliament a new bill on the Property Restitution and Compensation Act, which proposes several amendments to the Property Act of 2004. The bill, which is currently pending before Parliament, will be discussed in the coming months. | 1 |
dev | 001-70282 | ENG | DEU | ADMISSIBILITY | 2,005 | ADAM AND OTHERS v. GERMANY | 3 | Inadmissible | John Hedigan | The applicants, Mr Rüdiger Adam, Ms Angelika Vogt and Ms Marlis Bertling, are German nationals. They were represented before the Court by Mr K.H. Christoph, a lawyer practising in Berlin. The applicants worked as ballet dancers in and for the German Democratic Republic (“GDR”). At the end of their stage career they were paid a monthly allowance (“the allowance“) for former ballet dancers. That allowance was paid by virtue of a set of Regulations enacted by the Minister of Culture (Anordnung über die Gewährung einer berufsbezogenen Zuwendung an Ballettmitglieder in staatlichen Einrichtungen der DDR) of 1 September 1976. It accrued after reaching the age of 35 and having worked for at least 15 years as a dancer. It was paid, irrespective of other earnings, by the last employer. Once the former dancer received an old-age or invalidity pension the allowance was paid by the National Insurance of the GDR (Staatliche Versicherung der DDR). After the German reunification the allowance was initially converted into and paid in German marks (DEM). On 1 January 1992, however, all allowance payments to former ballet dancers were discontinued on the basis of Article 9 § 2 read in conjunction with Appendix II, Chapter VIII, Section H, paragraph III, Nr. 6 of the German Unification Treaty (Einigungsvertrag) of 31 August 1990, hereafter referred to as “Article 9 of the German Unification Treaty” (see “Relevant domestic law and practice” below). In 1992 the applicants and several other former ballet dancers of the GDR lodged a constitutional complaint with the Federal Constitutional Court. The latter refused to accept the complaint because the applicants had not exhausted legal remedies. 1. Applicant Adam Applicant Adam (A) worked from 1960 to 1988 as a ballet dancer for a national company of the GDR. In 1988 he terminated his career on stage and was subsequently paid an allowance of 512, 50 marks per month until its suspension on 31 December 1991. On 17 March 1995 A brought an action with the Dresden Social Court (Sozialgericht) claiming the continued payment of the allowance. On 11 April 1995 the Social Court referred his case to the Dresden Labour Court (Arbeitsgericht). On 10 August 1995 the Sachsen Social Court of Appeal (Landessozialgericht) rejected his appeal against the referral. On 13 February 1996 the Dresden Labour Court rejected A’s action. It argued that A had no valid claim to any allowance payments beyond 31 December 1991. As the German Unification Treaty permanently ended payment of these allowances from that date, it did not recognise the allowance as being a legal claim within the social security system of the Federal Republic of Germany (FRG). On 20 June 1997 the Sachsen Regional Labour Court (Landesarbeitsgericht) rejected A’s appeal (Berufung). On 29 August 2000 the Federal Labour Court (Bundesarbeitsgericht) rejected A’s request for leave to appeal on points of law. It conceded that the wording of Article 9 of the German Unification Treaty was ambiguous in that it could be interpreted as setting 31 December 1991 either as the final date to qualify for the allowance or as terminating allowance payments permanently from that date. The legislator had however meant to suspend the allowance payments as of 31 December 1991. The allowance was an atypical benefit granted by the GDR and had been paid out of public funds. Under these circumstances a transfer of the allowance into the united German legal system would have required an explicit and more precise rule than that actually laid down in the German Unification Treaty. Furthermore Article 9 of the German Unification Treaty had to be construed bearing in mind that that provision was intended to lead to the creation of a uniform and united German pension system. Accordingly, it was meant to regulate the application of the GDR’s pension schemes for a provisional period only. With the adoption of the Law on the Transfer of Pension Rights and Future Pension Rights (Anspruchs- und Anwartschaftsüberführungsgesetz, hereafter “transfer law”) of 25 July 1991 (see “Relevant domestic law and practice” below) this purpose had been accomplished. The transfer law did not provide for further allowance payments after 31 December 1991 but established that the number of years which the ballet dancer had worked on stage would be taken into consideration in calculating his monthly pension. On 2 July 2002 the Federal Constitutional Court, sitting as a panel of three judges, refused to admit A’s constitutional complaint. It referred to its leading judgment of 28 April 1999 (see “Relevant domestic law and practice” below), pursuant to which the pension rights acquired in the GDR fell within the scope of the Article 14 of the German Basic Law (Grundgesetz) protecting the right to property provided that the German Unification Treaty recognised them as legal claims within the united German legal system. Given that Article 9 of the German Unification Treaty prescribed that the allowance would not be transferred into the social and labour legislation of the FRG, however, it did not fall within the scope of Article 14 of the German Basic Law. It could accordingly be left undecided whether the allowance could be considered a pension. There had never been a legitimate expectation that the allowance would be transferred into the united German legal system, as in the legal system of the GDR, the allowance had already amounted to a preferential treatment. Besides, although the allowance was not based on contributions of the beneficiary, the German legislator had in a way allowed for it by establishing in the transfer law that the years during which a person had been working as a ballet dancer of the GDR and thereby had qualified for the allowance would be taken into account for calculating the pension to be paid to that person. The decision was served on A’s lawyer on 2 August 2002. 2. Applicant Vogt Applicant Vogt (V) worked as a ballet dancer for national companies of the GDR for over 15 years. In 1989 she terminated her stage career and was subsequently paid an allowance of 686, 50 marks per month until its suspension on 31 December 1991. On 21 December 1992 V brought an action for declaration (Feststellungsklage) that, once she was going to receive an old-age or an invalidity pension, the Federal Insurance Office for Employees (Bundesversicherungsanstalt für Angestellte) would be obligated to pay her the allowance in addition to her pension. On 25 January 1994 the Dresden Social Court rejected her action. It argued that V had no valid claim to any allowance payments beyond 31 December 1991 as the German Unification Treaty put a definitive end to such payments as of that date. The transfer law determined, however, that the years during which a person had been working as a ballet dancer for the GDR and thereby qualified for the allowance had to be taken into account to calculate the pension of that person. In this way the transfer law integrated the allowance into the pension system of the FRG but did not provide for allowance payments in addition to the pension. On 27 July 1994 the Sachsen Social Court of Appeal quashed the decision of the Social Court and declared V’s action inadmissible. On 14 September 1995 the Federal Social Court (Bundessozialgericht) rejected most of V’s appeal on points of law. It argued that the FRG was not the universal legal successor (Gesamtrechtsnachfolgerin) of the GDR and that the Unification Treaty determined which duties of the GDR had been transferred to the FRG and the Länder. The allowance as such had been abolished and would therefore not be paid in addition to a future pension. On 2 July 2002 the Federal Constitutional Court refused to accept V’s constitutional complaint in a joint decision also dealing with A’s and B’s constitutional complaints. The decision was served on V’s lawyer on 2 August 2002. 3. Applicant Bertling Applicant Bertling (B) worked as a ballet dancer for the Brandenburger Theater until February 1976. In 1976 she terminated her stage career and was subsequently paid an allowance of 304 marks per month until its suspension on 31 December 1991. On 23 December 1992 B brought an action with the Brandenburg District Court (Kreisgericht), requesting the further payment of the allowance and a declaration that once she was going to be served an old-age or an invalidity pension the Federal Insurance Office for Employees would be bound to pay her the allowance in addition to her pension. On 20 April 1993 the District Court referred the proceedings to the Potsdam Social Court. On 11 January 1994 the Potsdam Social Court rejected the applicant’s action. On 15 June 1995 the Brandenburg Social Court of Appeal rejected her appeal. On 29 April 1997 the Federal Social Court rejected her appeal on points of law. On 2 July 2002 the Federal Constitutional Court refused to entertain B’s constitutional complaint in a joint decision also dealing with A’s and V’s complaints. The decision was served on B’s lawyer on 2 August 2002. 1. The German Unification Treaty As a result of the German Reunification, which became effective on 3 October 1990, the GDR acceded to the FRG. The transition from a communist regime to a democratic system of market economy in the new Länder raised many issues relating to property rights in Germany, in particular regarding the transfer of former GDR citizens’ pensions. To achieve economic and legal unification, the FRG and GDR concluded several agreements on the fate of GDR legislation, such as the German Unification Treaty of 31 August 1990, in which they agreed, inter alia, that vested rights and expectations were transferred to the social security system of the FRG. However, payments made on the basis of special regulations (Sonderregelungen) would be checked for the purpose of stopping unjustified or excessive payments (mit dem Ziel, ..., ungerechtfertigte Leistungen abzuschaffen und überhöhte Leistungen abzubauen). The German Unification Treaty, besides containing several other declarations, laid down fundamental principles in that connection. It established, inter alia, which parts of GDR law were to be incorporated into the unified German legal system. Article 9 § 2 of the Treaty reads: “The law of the GDR mentioned in Appendix II is to remain in force in the unified system, with the restrictions set out in the Appendix, and provided that that law is compatible with the Basic Law (Grundgesetz) and the law of the EU which is directly applicable.” Appendix II, Chapter VIII, Section H, paragraph III, Nr. 6 inter alia reads: “a. The Regulations on the allowance to be paid to former ballet dancers are applicable until 31 December 1991. b. The Regulations can be amended until that date by a collective agreement (Tarifvertrag) or by a collective labour contract (Betriebsvereinbarung).” 2. The Transfer Law The Law on the Transfer of Pension Rights and Future Pension Rights (transfer law, Anspruchs- und Anwartschaftsüberführungsgesetz) determined how the numerous additional or special pension schemes (Zusatz- oder Sonderversorgungssysteme) were integrated into the united German pension system. Regarding the allowances examined here, it did not provide for them to be paid on top of the regular pension but prescribed that the number of years during which a ballet dancer had worked on stage would be taken into consideration for calculating the monthly pension. 3. Decisions of the Federal Constitutional Court On 28 April 1999 the Federal Constitutional Court issued four leading judgments concerning the method used to deal with former GDR citizens’ pension rights. It determined that the pension rights acquired in the GDR fell within the purview of Article 14 of the German Basic Law (right to property), provided that the German Unification Treaty recognised them as a legal claim within the united German legal system. It furthermore examined the constitutionality of the transfer law and established which provisions of it were contrary to the Basic Law. In all these cases judge Papier of the Federal Constitutional Court had declared himself biased. In 1994 the Federal Ministry of Social Affairs had commissioned him to examine the constitutionality of the transfer law. He withdrew from the bench making reference to the expert opinion he had rendered and where he had examined the constitutionality of the transfer law. The Federal Constitutional Court accepted his withdrawal and decided without his participation. | 0 |
dev | 001-91720 | ENG | GBR | ADMISSIBILITY | 2,009 | WILLIAMS v. THE UNITED KINGDOM | 3 | Inadmissible | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä | The applicant, Mrs Anne Williams, is a British national who was born in 1951 and lives in Chester. She was represented before the Court by Mr E. Abrahamson, a lawyer practising in Liverpool. The applicant is the mother of Kevin Williams who died, aged 15 years old, at Hillsborough football stadium. On 15 April 1989, Kevin Williams went to Sheffield to watch Liverpool play in the semi-final of the Football Association Cup at Sheffield Wednesday’s football ground, Hillsborough Stadium. The kick-off of the match was scheduled for 3p.m. Prior to kick-off there was a huge build-up of supporters outside the Leppings Lane entrance to the ground which in turn caused pressure on those trying to get into the ground through the turnstiles. At 2.52p.m. Chief Superintendent Duckenfield, who was the police officer in charge of crowd control at the match, decided to authorise the opening of the exit gates at the Leppings Lane entrance in order to relieve the pressure at the turnstiles. The opening of one of the gates, gate C, resulted in a sudden influx of about 2,000 supporters into the ground, the majority of whom continued through a tunnel into the central spectator pens, 3 and 4. Each of these pens was capable of holding just over 1,000 people but both were already full when the gate was opened. The result of the sudden influx was the build-up of intolerable pressure on supporters at the front of the pens. Notwithstanding the late arrival of supporters, Chief Superintendent Duckenfield decided not to delay kick-off. The match started as scheduled at 3p.m. Shortly after the match began, the pressure in the pens intensified and supporters were crushed against the wall at the front of the pens and suffered severe crush injuries. The match was stopped at 3.06p.m. At 3.15p.m. the first St John’s Ambulance crew arrived. A major incident vehicle was called at 3.29p.m. and arrived at 3.45p.m. The applicant’s son was certified dead at 4.06p.m. 96 supporters died following injuries sustained in the disaster, including the applicant’s son. On 17 April 1989, the then Secretary of State for the Home Department ordered Lord Justice Taylor (as he then was) to conduct an inquiry. His terms of reference were: “To inquire into the events at Sheffield Wednesday Football Ground on 15 April 1989 and to make recommendations about the needs of crowd control and safety at sports events.” The West Midlands police were appointed to investigate the incident and gather evidence for the Taylor Inquiry and assisted Her Majesty’s Coroner for South West Yorkshire, Dr Popper, who was to conduct the inquests. Lord Justice Taylor’s interim report was published on 4 August 1989. His final report was published in January 1990. Lord Justice Taylor heard oral evidence from 174 witnesses on a wide range of issues leading to the disaster. He also received a number of written submissions. He found that there were a number of causes for the disaster but that the immediate cause was the failure, when gate C was opened, to cut off access to the central pens which were already overfull. Lord Justice Taylor concluded, at paragraph 278 of his interim report, that: “The main cause of the disaster was the failure of police control.” On 18 April 1989, the Coroner formally opened and adjourned the inquests into the deaths of the 95 victims of the disaster (the 96th victim suffered severe brain damage that left him in a persistent vegetative state and died in 1993). The Director of Public Prosecutions (“DPP”) had been asked to consider bringing criminal charges arising out of the incident and the Coroner decided that the inquests could not be completed until the DPP had reached a decision on whether criminal proceedings would be pursued. In February 1990, following consultation with the DPP and a solicitor connected to the Hillsborough Steering Committee, the Coroner decided that the inquests could resume on a limited basis. Although the question of “how” the deceased died would be reserved for a later date, the questions of “who”, “when” and “where” could be dealt with before the DPP’s decision. The Coroner recognised that care would have to be taken to ensure no prejudice to any future criminal prosecutions. Preliminary inquests (“mini-inquests”) were held for each of the individuals who had died between 18 April and 4 May 1990. At the mini-inquests, West Midlands police officers summarised statements relating to each of the deceased, covering the evidence they had gathered in the course of their investigations. The officers’ evidence was given orally and on oath. The written summaries themselves were not read in evidence. Evidence was also heard from pathologists who had carried out all the autopsies within 48 hours of the incident. In the majority of cases, the cause of death was given as traumatic asphyxia and it was said that the individuals would have been unconscious within a matter of seconds and would have died within a matter of minutes thereafter. On 2 May 1990, evidence from a statement made by Special Police Constable (“SPC”) Martin on 8 May 1989 was summarised at the mini-inquest into Kevin Williams’ death. SPC Martin had helped carry Kevin off the pitch into the gymnasium. Her evidence suggested that Kevin was still alive at 4p.m. Her statement indicated that Kevin had opened his eyes and muttered the word “mum” after he had been taken to the gymnasium. A statement from Police Constable (“PC”) Bruder was also orally summarised at the mini-inquest. His evidence suggested that Kevin was possibly still alive after 3.32p.m. PC Bruder reported having seen Kevin after that time have convulsions. PC Bruder also thought he had felt a pulse and said in his statement that he had seen Kevin vomit. Despite this evidence, the pathologist considered that Kevin’s death must have occurred before SPC Martin attended him. On 3 May 1990, PC Bruder amended his statement. He accepted that the “convulsions” he had witnessed may merely have been “twitching”. He also accepted that he may have been wrong about feeling a pulse and that while he had thought he saw Kevin being sick, it may have been merely spittle or phlegm. In September 1990, the Coroner was advised that the DPP had decided not to prosecute anyone in connection with the incident. The inquest into the question “how” the deceased died began on 19 November 1990. Prior to this, the Coroner advised that he had decided to impose a cut-off time for evidence which he would hear in relation to the incident. Accordingly, he would hear evidence of events which took place before 3.15p.m. only. He was of the view that on the pathological evidence available to him, permanent irrecoverable damage had by then been suffered by all the deceased. In reaching this view, the Coroner took into account the interim report of the Taylor Inquiry. Counsel for 43 of the families argued against the cut-off point, primarily on the ground that there was evidence to suggest that not all the victims were dead by 3.15p.m. He argued that there had been no investigation or systemic analysis of the organisation or planning of the emergency response and what might have made a difference. The Coroner rejected these submissions. The resumed inquest heard evidence regarding the arrival of supporters, their approach to the football ground, the entrance to the ground and the build-up of supporters, the opening of the gates, the internal layout of the ground and a broken crowd barrier. No evidence was heard during the resumed inquest regarding the emergency response, its planning or its possible effect on the death of Kevin Williams. The mini-inquests and the resumed inquest heard, in total, around 200 witnesses. In summing up, the Coroner left to the jury the verdicts of unlawful killing, accidental death and open verdict. On 28 March 1991, the jury reached a majority verdict (9-2) of accidental death in all cases. Following the inquest, SPC Martin and PC Bruder both stated that they changed their statements following visits from West Midlands Police. SPC Martin claimed that she had changed her statement as a result of harassment by a police officer. Medical evidence prepared in 1992 and 1994 by specialists at the Department of Forensic Medicine at Guy’s Hospital in London and the Department of Forensic Pathology at the University of Liverpool respectively suggested that the officers may have been correct in their original statements and that Kevin Williams may have been alive after 3.15p.m. and even spoken a word or two. On 6 April 1993, relatives of six of the deceased, including the applicant, were granted permission to judicially review the inquest verdict of accidental death. On 5 November 1994, the Divisional Court refused to quash the verdict. The DPP was instructed to consider bringing criminal charges in respect of the incident. In 1990, he decided not to pursue any criminal proceedings. In June 1990, the applicant lost her civil claim for pre-death suffering because the pathological evidence given at the inquest was that none of the deceased would have felt any pain. The Police Complaints Authority (“PCA”) appointed the West Midlands Police to supervise a disciplinary investigation into the conduct of South Yorkshire Police officers. In July 1991, the PCA directed the South Yorkshire Police to prefer disciplinary charges against Superintendent Murray, for one charge of neglect of duty, and Chief Superintendent Duckenfield, for four charges of neglect of duty and one of discreditable conduct. However, in November 1991, Chief Superintendent Duckenfield was allowed to retire on health grounds. The disciplinary charges against him were accordingly discontinued as under police regulations, a disciplinary hearing could not proceed when a police officer retired. The PCA decided on 13 January 1992 to withdraw the charge against Superintendent Murray because it considered that it would have been unfair to pursue what was, in effect, a joint charge in the absence of the more senior officer. Under section 13 of the Coroners Act 1988, the Attorney General may grant leave to apply to the High Court for another inquest to be held. That power can be exercised where there has been insufficiency of inquiry, where new facts have been uncovered or where it is necessary or desirable that a new inquest be held. In 1992, a first request for leave was made to the Attorney General on the basis of new evidence. This request was rejected in August 1992. In June 1997, the Secretary of State for the Home Department ordered a “scrutiny” of new evidence uncovered since the Taylor Inquiry. Lord Justice Stuart-Smith was appointed to: “ascertain whether any evidence exists relating to the disaster at the Hillsborough Stadium on 15 April 1989 which was not available: (a) to the Inquiry conducted by the late Lord Taylor; or (b) to the Director of Public Prosecutions or the Attorney General for the purpose of discharging their respective statutory responsibilities; or (c) to the Chief Officer of South Yorkshire Police in relation to police disciplinary matters; And in relation to (a) to advise whether any evidence previously not available is of such significance as to justify establishment ... of a further public inquiry; and in relation to (b) and (c) to draw to their attention any evidence not previously considered by them which may be relevant to their respective duties; and to advise whether there is any other action which should be taken in the public interest.” Lord Justice Stuart-Smith received a number of written submissions and evidence in the course of his inquiry. He also heard oral evidence, including evidence from SPC Martin and PC Bruder. Although he sat in private, his report was published in February 1998 and set out in detail the evidence and his findings. He concluded: “I have come to the clear conclusion that there is no basis upon which there should be a further Judicial Inquiry or a reopening of Lord Taylor’s Inquiry. There is no basis for a renewed application to the Divisional Court or for the Attorney General to exercise his powers under the Coroners Act 1988. I do not consider that there is any material which should be put before the Director of Public Prosecutions or the Police Complaints Authority which might cause them to reconsider the decisions they have already taken. Nor do I consider that there is any justification for setting up any further inquiry into the performance of the emergency and hospital services. I have carefully considered the circumstances in which alterations were made to some of the self-written statements of South Yorkshire Police officers, but I do not consider that there is any occasion for any further investigation.” In June 1998, the Hillsborough Family Support Group commenced private prosecutions against former Chief Superintendent Duckenfield and Superintendent Murray, alleging two specimen charges of unlawful killing and wilful misfeasance in public office. They were committed to stand trial at Leeds Crown Court on 6 June 2000. The trial took place between 6 June and 24 July 2000. Superintendent Murray was acquitted on 20 July 2000. On 24 July 2000, the jury announced that they could not reach a verdict on Chief Superintendent Duckenfield and were discharged. On 26 July 2000, the Hillsborough Family Support Group made an application for re-trial of Chief Superintendent Duckenfield. The application was refused on the grounds that he would not get a fair trial. Following the entry into force of the Human Rights Act 1998, the applicant made a second request to the Attorney General in 2006 to have her case referred to the High Court. The application was made on the basis of the alleged insufficiency of the inquiry into Kevin Williams’ death on the ground that there had been no Article 2-compliant investigation; and on the basis of new evidence. Her request was refused on 12 February 2006. The Coroner’s Act 1988 provides as follows: “13 Order to hold inquest (1) This section applies where, on an application by or under the authority of the Attorney-General, the High Court is satisfied as respects a coroner (“the coroner concerned”) either— (a) that he refuses or neglects to hold an inquest which ought to be held; or (b) where an inquest has been held by him, that (whether by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts or evidence or otherwise) it is necessary or desirable in the interests of justice that another inquest should be held.” | 0 |
dev | 001-82990 | ENG | DEU | ADMISSIBILITY | 2,007 | WEBER v. GERMANY | 4 | Inadmissible | Peer Lorenzen | The applicant, Mr Wolfgang Weber, is a German national who was born in 1935 and lives in Estancia Campo’i Filadelfia, District Chaca (Paraguay). He was represented before the Court by Mr U. Grammel, a lawyer practising in Stuttgart. Until 1992 the applicant was the executive president (Vorstandsvorsitzender) of a public limited company, Südmilch AG, which collapsed in 1993. When the Stuttgart Public Prosecutor’s Office instituted criminal proceedings against the applicant on suspicion of breach of trust and falsification of a balance sheet, the applicant left Germany and moved to Paraguay. During the criminal proceedings, the applicant was interrogated on 30 January 1997 by the consular service (konsularische Vernehmung) of the German Embassy in Asunción. On 9 January 1998 the Stuttgart Public Prosecutor’s Office discontinued the criminal proceedings against him. During these proceedings the applicant had been represented by a lawyer, W, practising in Stuttgart. On 30 August 1996 a creditor company brought a civil action for damages against the applicant personally before the Stuttgart Regional Court, claiming damages of three million DEM. On 23 October 1996 the Regional Court lodged a request to serve the writ on the applicant through the German diplomatic service (Zustellungsantrag im Wege der Rechtshilfe). On 30 January 1997 the German Embassy in Asunción made an attempt to serve the writ directly on the applicant following his interrogation in the criminal proceedings. According to the Embassy the applicant refused to permit his lawyer W to accept the writ. According to the applicant, only W was informed of the writ, but the lawyer declined to accept it and consequently the applicant was not aware of the writ. Subsequently, the Embassy referred the request to the Paraguayan authorities for action, but the latter did not execute the request for service. On 27 February 1998 the plaintiff requested the Regional Court to serve the writ by public notification (öffentliche Zustellung) referring to information from the Embassy according to which attempts to serve documents in Paraguay usually failed because the Paraguayan authorities remained inactive. As it was not possible to have the writ served by the Paraguayan authorities, on 5 March 1998 the Regional Court ordered service of the writ by public notification in the Federal Bulletin and on the court’s notice board. It fixed a two-month time-limit for entering a notice of defence. On 2 April 1998 the writ was published in the Federal Bulletin. Between 24 March 1998 and 8 April 1998 it was posted on the court’s notice board. On 2 July 1998 the two-month time-limit set by the Regional Court for entering a notice of defence elapsed without any reaction from the applicant. On 7 July 1998 the Regional Court ordered the applicant by way of default judgment to pay the plaintiff damages amounting to three million DEM and fixed a two-month time-limit for filing objections (Einspruchsfrist). On 15 July 1998 the judgment was served by public notification on the court’s notice board. It became final on 30 July 1998. The two-month time-limit fixed by the Regional Court for filing objections elapsed on 30 September 1998. By letter of 27 July 1999, the applicant’s lawyer W asked the plaintiff’s lawyer about the civil proceedings. On 2 August 1999 he was informed that the civil proceedings had ended a year earlier with the default judgment. On 28 June 2000 the applicant lodged an objection against the default judgment before the Stuttgart Regional Court and requested reinstatement of the proceedings. The applicant argued that the Regional Court had no right to serve the judgment by public notification within the meaning of Section 203 § 2 of the Code of Civil Procedure. As the Regional Court knew his address it should have served the judgment by postal service in terms of Section 175 of the Code of Civil Procedure. On 9 August 2000 the applicant’s lawyer W stated that he did not wish to challenge the validity of the public notification of the writ, which in his view had been erroneous but valid (er wende sich “nicht gegen die obschon fehlerhafte, aber trotzdem wirksame öffentliche Zustellung der Klagschrift”). His complaint was limited to a challenge to the validity of the public notification of the default judgment. On 13 September 2000 the Regional Court rejected the applicant’s objection on the ground that the judgment had been validly notified (by public notification), and that the public notification itself had been valid. The Regional Court found that there had been no entitlement to postal service according to Section 175 of the Code of Civil Procedure as it was for the court, in its discretion, to select the method of service (pflichtgemäßes Ermessen) once the conditions set out in Section 203 § 2 of the Code of Civil Procedure had – as in the applicant’s case - been satisfied. It opted for service by public notification because postal service was disadvantageous to the applicant. Thus, Section 175 § 1 sentence 3 of the Code of Civil Procedure provided that the relevant time-limit started to run from the day on which the judgment had been posted. It was therefore likely that the time-limit for lodging an objection would have elapsed before the applicant received the default judgment. Moreover, postal service would be invalid if it transpired that the defendant’s address had been incorrect. In such a case the court would have to re-serve by way of postal service, which was neither in the plaintiff’s interest nor in the interest of legal certainty. At the same time, the Regional Court rejected the applicant’s request for reinstatement because the applicant had failed to comply with Section 234 § 3 of the Code of Civil Procedure as he had lodged his application for reinstatement only on 28 June 2000, which was far more than one year after the expiry of the time-limit for objections on 30 September 1998. Moreover, the applicant had failed to comply with the two-week time-limit to lodge his request for reinstatement (Wiedereinsetzungsfrist) within the meaning of Section 234 § 1 of the Code of Civil Procedure. The court noted that on 2 August 1999 W had been informed that the civil proceedings had ended a year earlier with the default judgment. Therefore, the applicant should have lodged his request for reinstatement in August 1999. Finally, the Regional Court pointed out that the applicant had missed the time-limits through his own fault. It considered that the applicant had been aware of the civil proceedings and the default judgment. Thus, the German Embassy had tried to hand the writ over to the applicant at the end of his interrogation in the German Embassy during the criminal proceeding, but he had refused to accept it himself and had forbidden to serve it on his lawyer W. Even if only W was informed of the writ on 30 January 1997, as submitted by the applicant, W was known to the court as a very diligent lawyer who would have informed the applicant about the existence of the civil proceedings even if he had only been mandated for the criminal proceedings. Therefore the applicant failed to comply with the requirement of Section 174 § 2 of the Code of Civil Procedure to appoint a person for service (Zustellungsbevollmächtigten) to ensure the receipt of his mail. On 30 March 2001 the Stuttgart Court of Appeal rejected the applicant’s appeal for the following reasons: First, the conditions for public notification in terms of Section 203 § 2 of the Code of Civil Procedure had been satisfied, given in particular that service abroad had proved to be impossible due to the Paraguayan authorities’ lack of cooperation in dealing with requests for service of judicial documents. In this respect the Court of Appeal referred to the unsuccessful attempt of the Regional Court to serve the writ on the applicant through the diplomatic service and to the German Embassy’s communication of 30 January 1997 which confirmed that requests to serve documents were often not executed by the Paraguayan authorities. Secondly, it found that the Regional Court had reasonably exercised its discretion to decide upon the type of service by striking a fair balance between the competing interests of legal certainty and the plaintiff’s right to have justice administered (Justizgewährungsanspruch), on the one hand, and the applicant’s right to fair trial, on the other hand. Thus, postal service would have excluded the application of Section 339 § 2 of the Code of Civil Procedure and, hence, the possibility to apply a longer time-limit to lodge objections against the default judgment than the two-week time-limit provided for by Section 339 § 1 of the Code of Civil Procedure. Both service by public notification and postal service contained an assumption that the documents had been duly served (Zustellungsfiktion). However, postal service entailed the additional risks for the plaintiff that the defendant’s address was incorrect or that the latter had changed his residence. In circumstances as in the present case where the defendant deliberately left Germany and moved to a country which did not cooperate with Germany in judicial matters, it would be unfair to burden the plaintiff, who had no opportunity to verify the correctness of the defendant’s address, with that risk. Thirdly, the Court of Appeal relied on the Embassy’s information according to which the applicant had refused to permit his lawyer W to accept the writ. Thus, the applicant had been aware of the civil proceedings and could have participated in them. Moreover, the Court of Appeal emphasized that the applicant produced the difficult situation himself by moving to a non-cooperative country without complying with his procedural obligation under Section 174 § 2 of the Code of Civil Procedure to appoint a person for service and, hence, to ensure the receipt of his legal documents. On 11 March 2002 the Federal Court of Justice dismissed the applicant’s further appeal. It argued that the applicant could not invoke a violation of his right to be heard because he had explicitly accepted the validity of the writ’s service by letter of 9 August 2000. In doing so he must be treated as if he had had the opportunity to appoint a person for service in terms of Section 174 of the Code of Civil Procedure. On 18 February 2003 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint without giving any reasons. Sections 174 et seq. of the Code of Civil Procedure as in force at the material time governed the service of legal documents. Pursuant to Section 174 § 2 of the Code of Civil Procedure parties residing abroad were required to designate a person for service if they had no authorised legal representative who resided within the judicial district of the trial court. If the party failed to do so, the document could be served by post. In that case Section 175 § 1 sentence 3 of the Code of Civil Procedure provided that the document was deemed to have been served at the moment in which it was delivered to the post office. According to the case law of the Federal Court of Justice (see decision of 10 November 1998, no. VI ZR 243/97) the presumption of service (Zustellungsfiktion) did not apply in cases where the address of the recipient had been incorrect or incomplete. Section 199 et seq. of the Code of Civil Procedure as in force at the material time governed the service of documents abroad. As a general rule a court’s request for service abroad of a judicial document should be effected either directly by the competent authority of the state addressed or through the diplomatic channel. Section 203 § 2 of the Code of Civil Procedure provided for that the document might be served by public notification (öffentliche Zustellung) if the service abroad had either proved impossible or was unlikely to be successful. Instead of ordering service by public notification, the domestic courts could, acting within their discretion, decide to serve the document by postal service pursuant to Section 175 § 1 of the Code of Civil Procedure. According to Section 206 of the Code of Civil Procedure a writ was considered to have been served one month after the public notification in the Federal Bulletin; a judgment was deemed to have been served two weeks after the notification on the court’s notice board. Section 233 et seq. of the Code of Civil Procedure govern the reinstatement of proceedings. Section 233 of the Code of Civil Procedure provides that the reinstatement of the proceedings is granted where persons, through no fault of their own, are prevented from complying with inter alia the time-limit for lodging an objection against a default judgment or for requesting the reinstatement of the proceedings. Pursuant to Section 234 §§ 1, 2 of the Code of Civil Procedure the application for reinstatement of the proceedings must be made within two weeks from the moment in which the party becomes aware or should have become aware of the non-compliance with the respective time-limit. Section 234 § 3 of the Code of Civil Procedure precludes applications for reinstatements which are made more than one year after the relevant time-limit, such as the time-limit for lodging objections, had elapsed. Section 339 § 1 of the Code of Civil Procedure provides that the two-week time-limit for lodging objections against default judgments starts to run with the service of the judgment. According to Section 339 § 2 the court fixes a time-limit for lodging objections if the service has to be effected abroad or by public notification. Paraguay is not a party to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, nor is there any bilateral agreement on the service of judicial documents between Paraguay and Germany. In the absence of any such agreement, requests for legal assistance from Germany are executed on the basis of reciprocity in Paraguay. The German administrative rules on mutual assistance in civil and commercial matters (Rechtshilfeordnung für Zivilsachen) provide guidelines for the domestic courts on how to deal with requests for mutual legal assistance. They also contain a country section which reports on the specific situation in the different States, including Paraguay. According to these rules, a German court which wishes to serve a document on a party in Paraguay may send a request through the diplomatic channel. Such request shall be sent to the German Embassy in Asunción which will refer the request to the Paraguayan authorities for action. Members of the German Embassy are allowed to serve documents directly, i.e. without the involvement of the Paraguayan authorities, either on persons who reside in Asunción or on persons residing outside the capital if the service may be effected on a representative (Vertrauensperson). The administrative rules also allude to the long periods of time needed for the execution of such requests in Paraguay. | 0 |
dev | 001-119416 | ENG | RUS | CHAMBER | 2,013 | CASE OF SAVRIDDIN DZHURAYEV v. RUSSIA | 1 | Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Positive obligations) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Tajikistan);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Respondent State to take individual measures (Article 46-2 - Individual measures);Respondent State to take measures of a general character (Article 46-2 - Measures of a general character);Non-pecuniary damage - award | Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Nicolas Bratza;Ksenija Turković | 9. The applicant was born in 1985. He is presently serving a prison sentence in Tajikistan. 10. Until 2006 the applicant was living in his native village of Navgilem in the Sogdiskaya Region of Tajikistan. He was a merchant at the local food market. 11. The events preceding the applicant’s departure from Tajikistan were described by him as follows. 12. From 2002 to 2005 the applicant attended a mosque, where he was studying the Quran under the tutorship of Mr S. Marufov. The latter was detained by local police and died in detention in May 2006. Before his death Mr Marufov had reportedly been ill-treated (see paragraph 102 below). 13. Following Mr Marufov’s death, the Tajik authorities started targeting his followers. The applicant fled the country, fearing prosecution on grounds of his religious activities. 14. The applicant arrived in Russia in June 2006 and made a living from various low-skilled jobs in the Moscow suburbs. 15. On 7 November 2006 the Prosecutor’s Office of Tajikistan brought criminal proceedings against the applicant and authorised his detention pending trial. The applicant was charged under Articles 186 § 2 and 187 § 2 of the Criminal Code of Tajikistan with forming, some time in 1992, together with several other individuals, a “criminal conspiracy” named “Bayat” (Байъат), which later joined a “criminal armed group” named “the Islamic Movement of Uzbekistan” (“the IMU”). The second charge against the applicant concerned his alleged involvement in an armed attack carried out on 27 September 2006 on three members of the regional parliament. 16. On the same date the Tajik Prosecutor’s Office issued a warrant for the applicant’s arrest based on the charges mentioned above and put his name on the list of “wanted persons”. 17. The Russian police apprehended the applicant on 21 November 2009 in Moscow pursuant to an international search warrant issued by the Tajik authorities. He remained in detention pending extradition until 21 May 2011 (see paragraphs 3236 below). 18. On 21 December 2009 and 29 March 2010 the Deputy Prosecutor General of Tajikistan asked his Russian counterpart to order the applicant’s extradition to Tajikistan. 19. On 17 June 2010 the Deputy Prosecutor General of Russia ordered the applicant’s extradition. He found, inter alia, that the applicant had been charged in Tajikistan with involvement since 1992 in a criminal organisation, the IMU. The Deputy Prosecutor General also noted that at the end of 2005 the applicant had moved to Russia, where he had founded an armed cell of the IMU and that in 2006 he had transferred up to 5,000 United States dollars per month to the IMU leaders in Tajikistan, thus fuelling their terrorist activities, such as the murdering of State officials. The Deputy Prosecutor General considered that the applicant’s acts were also punishable under the Russian Criminal Code and that his extradition could not be prevented by a crime he may have committed in Moscow, since no investigation or prosecution had been initiated in that respect. Nor did he find any obstacle to the applicant’s extradition in either international treaties or legislation of the Russian Federation. 20. The applicant complained about the extradition order to the Moscow City Court (“the City Court”), stating that the Tajik authorities would subject him to torture with a view to making him confess to a crime he had not committed. He cited extensive case-law of the Court establishing the risk of torture to which certain applicants in a similar position would have been subjected in the event of extradition to that country (Khodzhayev v. Russia, no. 52466/08, 12 May 2010, and Khaydarov v. Russia, no. 21055/09, 20 May 2010). The applicant also emphasised the contradictions and even the absurdity of certain charges brought against him in Tajikistan, according to which he had been actively involved in terrorist activities since 1992 when he was still a small child. 21. The Deputy Prosecutor General provided the City Court with a letter signed by his counterpart in Tajikistan, which contained, inter alia, the following assurances: “We guarantee that in accordance with the norms of international law [the applicant] will be provided with all opportunities to defend himself in the Republic of Tajikistan, including through the assistance of a lawyer. He will not be subjected to torture or cruel, inhuman or degrading treatment or punishment (European Convention for the Protection of Human Rights and Fundamental Freedoms, and relevant United Nations and Council of Europe conventions and protocols thereto). The Criminal Code of Tajikistan does not provide for the death penalty in respect of the crimes imputed to [the applicant]. The Prosecutor General’s Office of Tajikistan guarantees that the aim of the extradition request in respect of [the applicant] is not his persecution on political grounds, or for reasons of his race, religious beliefs, nationality or political opinions. ... Tajikistan undertakes to prosecute [the applicant] only for the crimes which constitute the basis of his extradition and that [the applicant] will not be handed over to a third State without the consent of the Russian Federation and will be free to leave the territory of the Republic of Tajikistan after having served his sentence.” 22. On 29 October 2010 the City Court held a public hearing. It allowed the request by the defence to question Ms E. Ryabinina, in her capacity as expert of the Russian Human Rights Institute, about the situation in Tajikistan. The expert responded to the questions at the public hearing, explaining the details of four recent judgments delivered by the Court in connection with the prospective extradition to Tajikistan of the applicants concerned and the legal implications for the Russian Federation (Khodzhayev, cited above; Khaydarov, cited above; Iskandarov v. Russia, no. 17185/05, 23 September 2010; and Gaforov v. Russia, no. 25404/09, 21 October 2010). 23. By a judgment adopted on the same date, the City Court upheld the extradition order, finding no obstacle to the applicant’s extradition to Tajikistan. The applicant’s arguments, based on Russia’s obligations under the Convention and the Court’s case-law, were dismissed by the City Court in the following terms: “... the arguments that the applicant might be persecuted on religious grounds and regarding a serious risk of torture in the course of criminal prosecution in Tajikistan ... are considered by the court to be unfounded since those arguments constitute assumptions that are in no way corroborated; quite to the contrary, they are completely rebutted by the case materials, which have been examined by the court, and in particular by the written guarantees provided by the Deputy Prosecutor General of the Republic of Tajikistan ... The arguments ... that torture and persecution on religious and political grounds take place in the Republic of Tajikistan as confirmed by documents of the European Court of Human Rights and other organisations for the defence of human rights ... are considered by the court to be unfounded, as those documents relate to other persons, but not to [the applicant]; moreover, those arguments are negated by the aforementioned written guarantees of the Tajik Prosecutor’s Office.” 24. On 9 December 2010 the Supreme Court upheld the City Court’s decision. The applicant’s argument that his extradition would violate Article 3 of the Convention was dismissed by the Supreme Court by sole reference to the text of the written guarantees provided by the Tajik Prosecutor’s Office. 25. On 22 December 2009 the applicant applied to the Moscow City branch of the Russian Federal Migration Service (“the FMS”) for refugee status. He argued that he had been persecuted in Tajikistan on the grounds of his religious beliefs and that he would be subjected to torture in the event of extradition. 26. On 26 April 2010 the Moscow City branch of the FMS dismissed the application. The applicant was notified of the decision on 12 May 2010. 27. On 26 August 2010 the Deputy Director of the FMS dismissed an appeal lodged by the applicant against that decision. He reminded the applicant that the IMU was considered by the supreme courts of both Tajikistan and Russia as an organisation carrying out terrorist activities. While noting the extensive international criticism of the use of torture and the impunity of the State officials responsible in Tajikistan, the Deputy Director of the FMS found no well-founded reason for fearing that the applicant would be persecuted on religious grounds. Noting that the great majority of the population of Tajikistan were Muslims, he found it unlikely that the applicant would be persecuted solely on the basis of his Islamic beliefs. As to the authorities’ attempt to strengthen control over religious beliefs, this was considered to be pursuing the understandable aim of limiting the influence of radical Islam, including the IMU. He concluded that the applicant was not eligible for refugee status and that his application had been motivated by his intention to escape criminal liability in Tajikistan. He noted at the same time that the existence of a well-founded fear of becoming a victim of torture or ill-treatment might be a ground for granting the applicant temporary asylum in Russia under section 12 of the Refugees Act. 28. On 1 October 2010 the applicant appealed against the FMS’s decision to the Basmanniy District Court of Moscow. He argued that the FMS had not made a thorough and adequate analysis of the situation in Tajikistan and taken due account of the information provided by various international sources in that connection. He further submitted that the FMS had presumed him guilty of the offences that had been imputed to him by the Tajik authorities and had in effect upheld the version of the facts as presented by the Tajikistan Prosecutor’s Office. 29. On 10 November 2010 the Basmanniy District Court upheld the FMS’s decision of 26 August 2010. It referred to the arguments contained in that decision, finding them convincing and considering that the applicant had failed to provide evidence to the contrary. On 6 December 2010 the court’s decision was upheld on appeal by the Moscow City Court. 30. On 24 May 2011 the applicant applied to the FMS for temporary asylum in Russia. On 2 June 2011 the UNHCR Office in Russia informed the applicant’s representative that he met the criteria established by its statute and was eligible for international protection under its mandate. 31. On 6 September 2011 the Moscow City branch of the FMS granted the applicant temporary asylum in Russia and issued a certificate to that effect. The certificate was recorded under reference ВУ № 0004219 and delivered to the applicant on 8 September 2011 in his lawyer’s presence. 32. Following the applicant’s apprehension in Moscow (see paragraph 17 above), on 23 November 2009 the Meshchanskiy District Court of Moscow ordered his detention pending extradition. 33. On 15 January 2010 the same court extended the applicant’s detention until 21 May 2010. The applicant lodged an appeal against that decision on 1 February 2010. It was dismissed by the City Court on 22 March 2010. 34. On 17 May 2010 the Meshchanskiy District Court further extended the applicant’s detention until 21 November 2010. The applicant appealed against that decision on 19 May 2010. The City Court dismissed the appeal on 12 July 2010. 35. On 19 November 2010 the City Court further extended the applicant’s detention until 21 May 2011. On 22 November 2010 the applicant lodged an appeal against that decision, which was dismissed by the Supreme Court of Russia on 21 December 2010. 36. On 20 May 2011 the Meshchanskiy District Prosecutor ordered the applicant’s release under a personal guarantee provided by his lawyer in accordance with Article 103 of the Code of Criminal Procedure. 37. According to the applicant’s written testimony and the complementary information collected by his representatives from witnesses and other available sources, his abduction and transfer to Tajikistan took place as follows. 38. At around 9 or 10 p.m. on 31 October 2011 the applicant and a friend were driving in the south-west district of Moscow when their car was blocked by a mini-van in Michurinskiy avenue. According to the details provided by the applicant’s lawyer to the police and investigative authorities, the incident took place between 11.30 and 11.45 p.m. at 15, Vernadskiy avenue in Moscow. The applicant and his friend got out of the car and tried to escape. They were followed by three or four unidentified men who fired two shots. The applicant’s friend managed to escape, while the applicant was stopped, beaten up with a truncheon and forced into the minivan by the same men, who did not identify themselves. 39. The applicant was kept in the mini-van for a night and a day. The individuals who had apprehended him subjected him to torture and illtreatment. They beat him up, put a gun to his head and threatened to kill him unless he agreed to return to his home country. The applicant showed them the temporary asylum certificate delivered by the FMS, but they just laughed at him in response. The person who put questions to the applicant was of Tajik origin. 40. In the evening of the following day the applicant was taken by his kidnappers directly to the airfield of Moscow’s Domodedovo airport, without going through the usual border and customs formalities and security checks. The applicant was handed over to a Tajik patrol, who forced him into a nearby aircraft without presenting a ticket or any travel documents. 41. At around 4 a.m. the next day, the aircraft arrived at the airport of Khujand in Tajikistan, where the applicant was handed over to the Tajik authorities. His requests for a lawyer were refused. According to the written testimony of the applicant’s father, the applicant was detained and questioned for an unspecified period of time at Khujand police station. The applicant’s father testified in writing that police officers, one of whom was identified as S. M., had severely ill-treated the applicant in order to make him confess to crimes he had never committed and state that he had come back to Tajikistan voluntarily. He further testified that on 20 December 2012 the investigator, R.R., had refused to allow him to meet with his son in detention, referring to the father’s failure to help the authorities apprehend the applicant and bring him back to the country. 42. The Government’s submissions in respect of the applicant’s account of the facts were limited to the following. 43. Following enquiries from the Court, letters received from the Government dated 18 November 2011 and 29 February 2012 contained no information about the applicant’s whereabouts or his crossing of the State border. The Government further submitted that the applicant’s rights and freedoms had not been restricted in any way after his release on 20 May 2011, that the law had not obliged the authorities to ensure any surveillance over the applicant, that his extradition or expulsion had been suspended pursuant to the interim measures ordered by the Court and that he had not, therefore, been handed over to Tajikistan through the extradition procedure. 44. On 5 April 2012 the Government retransmitted the official information provided on 26 March 2012 by the Prosecutor General of Tajikistan to his Russian counterpart, according to which the applicant had “voluntarily surrendered” on 3 November 2011 to the Sogdiyskiy Regional Department for the Fight against Organised Crime (РОБОП) and had been detained in temporary detention facility no. 2 (СИЗО №2) of Khujand. 45. According to the latest information received from the Government on 25 February 2013, the inquiry into the applicant’s abduction and transfer was still pending. 46. Once informed of the applicant’s abduction on the evening of 31 October 2011, his representatives immediately contacted the competent Russian authorities, asking them to take urgent measures to prevent the applicant’s forcible removal from Russian territory. 47. Between 3 and 5 a.m. on 1 November, Ms E. Ryabinina faxed four formal requests to that effect to the head of the Moscow City Police Department, the Director of the FMS, the Prosecutor General and the Representative of the Russian Federation at the Court, respectively. She also solicited the assistance of the Commissioner for Human Rights of the Russian Federation. 48. In her letter to the head of the Moscow City Police Department, the applicant’s representative stated the circumstances of the applicant’s abduction. She also reminded him of the applicant’s legal status as a person to whom temporary asylum had been granted by the FMS and interim measures had been applied by the Court to prevent his extradition. The letter concluded as follows: “In view of [those circumstances] there are weighty reasons to fear that an abduction attempt has been made in respect of [the applicant] with a view to his subsequent illegal transfer from Russia to Tajikistan, whose authorities have requested his extradition for criminal prosecution. The situation is aggravated by the fact that the applicant’s brother [Sh. T.] disappeared on 8 September in Moscow and, according to the information provided by his wife, was remanded in custody on 13 September in Khujand, the Republic of Tajikistan, where he is still being detained. Some time earlier, on 23 August of this year, two other asylum seekers who had been protected against forcible transfer by [the interim measures decided by] the European Court, disappeared in Moscow: a Tajik national, S.K., and an Uzbek national, M. A. They were both transferred to Tajikistan and remanded in custody. Any claim that they left voluntarily must be excluded as they did not have any documents permitting them to cross the State border of the Russian Federation: M. A.’s national passport was being held by the Moscow branch of the FMS, while S.K. had lost his passport several years previously. ...” 49. On the same day, the Commissioner for Human Rights of the Russian Federation also sent a letter to the head of the Moscow City Police Department, which read as follows: “... There are well-founded reasons to fear that an attempt might be made illegally to transfer [the applicant] to Tajikistan, where his life is threatened. Today, 1 November 2011, [the applicant’s representative] asked you to take urgent measures in order to prevent [the applicant’s] forcible transfer from the territory of the Russian Federation, and above all, through the airports of Moscow. I ask you to consider the [above] request as soon as possible and to take all possible measures with a view to finding [the applicant] and preventing his forcible transfer from the territory of the Russian Federation. I ask you to inform me of the results following your consideration of the request.” 50. There is no information about any protective measure taken by the authorities concerned in response to any of those requests. 51. On 7 November 2011 the Office of the Representative of the Russian Federation at the Court replied to the applicant’s representative that pursuant to the interim measures taken by the Court, the Russian authorities were abstaining from his extradition and that the relevant instruction had been sent to the Federal Service for the Execution of Sentences (ФСИН), the Prosecutor General and the Ministry of the Interior. 52. Following the applicant’s complaint about his abduction in the present case and similar events in certain other cases, on 25 January 2012 the Registrar of the Court sent a letter to the Representative of the Russian Federation at the Court. The letter read as follows: “The President of the Court, Sir Nicolas Bratza, has instructed me to express on his behalf his profound concern at the applicant’s disappearance in Russia and his subsequent transfer to Tajikistan notwithstanding the interim measures indicated under Rule 39 of the Rules of Court. The President has noted that since the Court’s judgment in the Iskandarov case (no. 17185/05, 23 September 2010) where it held the Russian Federation responsible for a violation of Article 3 on account of the applicant’s unexplained abduction and transfer to Tajikistan by unidentified persons, the Court has been confronted with repeated incidents of that kind in four other cases, including the above-mentioned case (the other three cases are: Abdulkhakov v. Russia, no. 14743/11; S.K. v. Russia, no. 58221/10; and Zokhidov v. Russia, no. 67286/10). The explanations so far provided by the Government do not clarify how applicants could against their will be moved across the Russian State border notwithstanding the Government’s official assurances that no extradition would be effected pending examination of their cases by the Court. The President is deeply disturbed at those developments. He is particularly concerned about their implications for the authority of the Court and possible continuation of such unacceptable incidents in cases of other applicants to whom the interim measures still apply on account of the imminent risk of violation of their rights under Articles 2 and 3 of the Convention in the countries of destination. As an indication of the seriousness with which he views this turn of events, the President has asked that the Chairman of the Committee of Ministers, the President of the Parliamentary Assembly and the Secretary General of the Council of Europe be informed immediately. The President also notes that the Court’s Chamber has requested additional observations from the Government to address this worrying and unprecedented situation and expects the Russian competent authorities to provide the Court with exhaustive information about the follow-up given to the incidents in the Russian Federation. In the meantime, your authorities’ attention is drawn to the fact that interim measures continue to apply under Rule 39 in twenty-five other Russian cases concerning extradition or expulsion. Those cases are listed in appendix to the present letter.” 53. On 5 March 2012 the Representative of the Russian Federation at the Court informed the Registrar in response that appropriate information would be submitted “upon receiving the necessary data from the relevant authorities”. 54. On 30 November and 2 December 2011 the Ministry of the Interior informed the applicant’s representative that her complaint about the applicant’s abduction had been sent to the Moscow South-West Police Department (УВД по Юго-Западному АО ГУ МВД России по г. Москве) and then to the Gagarinskiy Inter-District Investigation Division of the South-West Administrative Circuit of Moscow (Гагаринский МСО СУ по ЮЗАО ГСУ СК РФ). On 30 December 2011 the latter decided to transmit the file to the Nikulinskiy Inter-District Investigation Division of the South-West Administrative Circuit of Moscow (Никулинский МСО СУ по ЮЗАО ГСУ СК РФ по г. Москве – hereinafter referred to as “the Nikulinskiy Investigation Division”). 55. Under Article 144 of the Code of Criminal Procedure, the senior investigator of the Nikulinskiy Investigation Division, P.K., conducted a pre-investigation inquiry (проверка сообщения о преступлении – “the inquiry”). 56. On 21 March 2012 P. K. refused to open a criminal investigation in respect of the applicant’s alleged abduction on the grounds of absence of corpus delicti. After a brief recapitulation of the facts, as presented by the applicant’s representative, the senior investigator concluded as follows: “... having analysed the materials of the inquiry, the investigating authority finds at present no evidence of crime under Articles 126 and 127 of the Criminal Code of the Russian Federation, because it has not been objectively established whether the applicant remains on the territory of the Russian Federation or has crossed the border of the Russian Federation. Information has also been received in the course of the inquiry that no shootings or abductions of persons have been reported on the territory where [the applicant] was allegedly abducted. The investigating authority does not exclude the possibility that following [the applicant’s] release from detention he might have staged his abduction with a view to escaping criminal liability for crimes he had committed on the territory of the Republic of Tajikistan.” 57. On the same day the head of the Nikulinskiy Investigation Division, S.K., quashed the above decision and sent the case back to the same senior investigator for a further inquiry. His decision was reasoned as follows: “The investigator’s refusal to institute criminal proceedings is unfounded and must be quashed. In the course of a further inquiry it is necessary to obtain replies to all requests for information that were sent on the matter and to proceed to an additional interview of [the applicant’s representative].” 58. On 27 March 2012 the head of the First Division for Procedural Supervision of the Moscow Directorate General of Investigation (ГСУ СК России по г. Москве) also requested a further inquiry into the matter. Furthermore, on 30 March 2012, the deputy to the Nikulinskiy Inter-District Prosecutor (заместитель Никулинского межрайонного прокурора) asked the investigator to ascertain whether the Russian authorities had been involved in the applicant’s alleged abduction. 59. On 20 April 2012 the senior investigator, P.K., again refused to open a criminal investigation by a new decision, which repeated word for word his earlier decision of 21 March 2012 (see paragraph 56 above). 60. On 23 April 2012 the deputy head of the Nikulinskiy Investigation Division, A.N., quashed that decision, also repeating word for word the previous decision by the head of the Nikulinskiy Investigation Division of 21 March 2012, which had quashed P. K.’s first decision of the same date (see paragraph 57 above). 61. On 23 May 2012 the senior investigator, P.K., yet again refused to open a criminal investigation in respect of the applicant’s abduction. The text of that decision was not submitted to the Court. 62. On 9 June 2012 the deputy head of the Nikulinskiy Investigation Division, A.N., again quashed that decision and demanded that the following procedural steps be taken: “In the course of a further inquiry a second request must be sent to the law-enforcement bodies of the Republic of Tajikistan in order to elucidate the following questions: has [the applicant] crossed the border of Tajikistan; is [the applicant] being detained in a pre-trial detention facility; and have criminal proceedings been brought against [the applicant]? A separate set of proceedings needs to be instituted on the basis of the materials concerning the possible unlawful crossing of the Russian border by the applicant ... and the materials sent to the FSB with a view to carrying out an inquiry under Article 151 of the Code of Criminal Procedure. ... [the applicant’s representative] needs to be questioned on the following points: is she still a representative of [the applicant] and can she clarify anything about [his] crossing of the border? A number of other verification measures need to be taken with a view to adopting a lawful and well-founded decision.” 63. On 9 July 2012 an investigator of the Nikulinskiy Investigation Division, A.Z., refused to bring criminal proceedings in respect of the applicant’s abduction. After a brief statement of facts, the decision read as follows: “According to information received from the Border Control Department of the Federal Security Service of Russia (“the FSB”), the law of the Russian Federation does not provide for the names of persons crossing the State border of the Russian Federation to be recorded. In accordance with section 30(15) of the State Border of the Russian Federation Act, only the number of persons crossing the border is monitored. It is therefore impossible to confirm or refute the information about the crossing of the State border by [the applicant]. Following a request for information about [the applicant], a national of the Republic of Tajikistan, the Prosecutor General’s Office of the Republic of Tajikistan answered that the aforementioned request could not be satisfied as it had been made in breach of the Convention of 22 January 1993 for legal assistance and legal relations in civil family and criminal cases. The police authorities in charge of the relevant territory have not received any information during the relevant period about unlawful acts involving either the use of a weapon or the abduction of persons in the circumstances indicated in the application. The Moscow City and Regional branch of the FSB has in its possession material relating to verifications of the possible unlawful crossing of the border of the Russian Federation by [the applicant]. Given that [the applicant] is subject to an international search warrant for the commission of crimes under Articles 186 § 2 and 187 § 2 of the Criminal Code [of Tajikistan], he might have staged his abduction with a view to escaping criminal liability for crimes he had committed on the territory of the Republic of Tajikistan. Thus, the preliminary inquiry has established no objective data indicative of [the applicant’s] abduction.” The investigator sent the above decision to the applicant’s representatives on 16 August 2012. 64. On 25 February 2013 the Government informed the Court that similar inquiries had continued and were still pending. No further decisions by the investigation authorities or documents were provided to the Court. According to the Government’s information, the inquiry found that the applicant had illegally crossed the Russian State border, surrendered to the Tajik authorities and had been placed in detention. The investigator’s decision of 9 July 2012 refusing to open a criminal investigation was again quashed by his superior on an unspecified date. According to the Government, the latest decision refusing to open a criminal investigation had been issued on 29 November 2012 by the head of the Nikulinskiy Investigation Division but had yet again been quashed. As a result, the file had been sent back to the investigators for an additional inquiry. 65. The Government also specified that the FSB had been asked to check the information about the applicant’s illegal crossing of the State border. Another request had been sent to Tajik authorities to identify the applicant’s whereabouts in Tajikistan. However, as of 23 January no responses had been received to either request. 66. The applicant’s representatives informed the Court that on 30 November 2011 the Sogdiyskiy Regional Court of Tajikistan had started its examination of a criminal case against thirty-four individuals, including the applicant. The applicant had been charged with various crimes under Articles 185 § 1, 186 § 1, 187 §§ 1 and 2, 189 § 3 (a), 244 § 4 (c), 306 and 307 § 3 of the Criminal Code of Tajikistan. 67. Public hearings were held by the court as from 29 January 2012. Lawyer R.T., who took part in the trial, provided the applicant’s representatives with a written testimony showing that the applicant had not pleaded guilty at the trial. According to R. T., the applicant submitted that he had been abducted in Moscow, forcibly transferred to Tajikistan and tortured in order to make him confess to the crimes. 68. In March and April 2012 eleven relatives of the co-accused repeatedly asked the Sogdiyskiy Regional Prosecutor, Sh.K., and the President of the Sogdiyskiy Regional Court, N.M., to order a forensic medical examination of the thirty-four co-accused in order to verify their allegations that they had been tortured by the authorities during the criminal proceedings. Their written request referred to the relevant provisions of the Constitution and the Code of Criminal Procedure of Tajikistan, which prohibit the use of torture and exclude any evidence obtained under duress. The applicant’s mother made a similar request in respect of the applicant. There is no information regarding the authorities’ response to those requests. 69. On 19 April 2012 the Sogdiyskiy Regional Court found the applicant guilty and sentenced him to twenty-six years’ imprisonment. His thirtythree co-accused were also found guilty and sentenced to various terms of imprisonment, ranging from eight to twenty-eight years. 70. Chapter 54 of the Code of Criminal Procedure (“the CCrP”) of 2002 governs the procedure to be followed in the event of extradition. 71. An extradition decision made by the Prosecutor General may be challenged before a court (Article 463 § 1). In that event, the extradition order should not be enforced until a final judgment has been delivered (Article 462 § 6). 72. A court must review the lawfulness and validity of a decision to extradite within a month of receipt of a request for review. The decision should be taken in open court by a panel of three judges in the presence of a prosecutor, the person whose extradition is sought and the latter’s legal counsel (Article 463 § 4). 73. Issues of guilt or innocence are not within the scope of judicial review, which is limited to an assessment of whether the extradition order was made in accordance with the procedure set out in applicable international and domestic law (Article 463 § 6). 74. Article 464 § 1 lists the conditions under which extradition cannot be authorised. Thus, the extradition of the following should be refused: a Russian citizen (Article 464 § 1 (1)) or a person who has been granted asylum in Russia (Article 464 § 1 (2)); a person in respect of whom a conviction has become effective or criminal proceedings have been terminated in Russia in connection with the same act for which he or she has been prosecuted in the requesting State (Article 464 § 1 (3)); a person in respect of whom criminal proceedings cannot be launched or a conviction cannot become effective in view of the expiry of the statutory time-limit or for other valid grounds in Russian law (Article 464 § 1 (4)); or a person in respect of whom extradition has been blocked by a Russian court in accordance with the legislation and international treaties of the Russian Federation (Article 464 § 1 (5)). Lastly, extradition must be refused if the act that serves as the basis for the extradition request does not constitute a criminal offence under the Russian Criminal Code (Article 464 § 1 (6)). 75. In the event that a foreign national whose extradition is being sought is being prosecuted or is serving a sentence for another criminal offence in Russia, his extradition may be postponed until the prosecution has been terminated, the penalty has been lifted on any valid ground or the sentence has been served (Article 465 § 1). 76. In its ruling no. 11 of 14 June 2012, the Plenum of the Russian Supreme Court indicated, with reference to Article 3 of the Convention, that extradition should be refused if there were serious reasons to believe that the person might be subjected to torture or inhuman or degrading treatment in the requesting country. Extradition could also be refused if exceptional circumstances disclosed that it might entail a danger to the person’s life and health on account of, among other things, his or her age or physical condition. Russian authorities dealing with an extradition case should examine whether there were reasons to believe that the person concerned might be sentenced to the death penalty, subjected to ill-treatment or persecuted because of his or her race, religious beliefs, nationality, ethnic or social origin or political opinions. The courts should assess both the general situation in the requesting country and the personal circumstances of the person whose extradition was being sought. They should take into account the testimony of the person concerned and that of any witnesses, any assurances given by the requesting country, and information about the country provided by the Ministry of Foreign Affairs, by competent United Nations institutions and by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. 77. The Constitution guarantees the right to liberty (Article 22): “1. Everyone has the right to liberty and personal integrity. 2. Arrest, placement in custody and detention are only permitted on the basis of a judicial decision. Prior to a judicial decision, an individual may not be detained for longer than forty-eight hours.” 78. Article 46 of the Constitution provides, among other things, that everyone should be guaranteed judicial protection of his or her rights and freedoms and stipulates that decisions, actions or inaction of State bodies, local authorities, public associations and officials may be challenged before a court. 79. When performing actions requested under the Minsk Convention, to which Russia and Tajikistan are parties, an official body applies its country’s domestic laws (Article 8 § 1). 80. A request for extradition must be accompanied by a detention order (Article 58 § 2). Upon receipt of a request for extradition, measures should be taken immediately to find and arrest the person whose extradition is sought, except in cases where that person cannot be extradited (Article 60). 81. A person whose extradition is sought may be arrested before receipt of a request for his or her extradition. In such cases a special request for arrest containing a reference to the detention order and indicating that a request for extradition will follow must be sent (Article 61 § 1). A person may also be arrested in the absence of such a request if there are reasons to suspect that he or she has committed, in the territory of the other Contracting Party, an offence for which extradition may be requested. The other Contracting Party must be informed immediately of the arrest (Article 61 § 2). 82. 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 the requisite supporting documents within forty days of the date of placement in custody (Article 62 § 1). 83. Article 1 § 3 of the CCrP provides that general principles and norms of international law and international treaties of the Russian Federation are a constituent part of its legislation concerning criminal proceedings. Should an international treaty provide for rules other than those established in the CCrP, the former are to be applied. 84. Chapter 13 of the CCrP (“Measures of restraint”) governs the use of measures of restraint, or preventive measures (меры пресечения), while criminal proceedings are pending. Such measures include placement in custody. Custody may be ordered by a court following an application by an investigator or a prosecutor if a person is charged with an offence carrying a sentence of at least two years’ imprisonment, provided that a less restrictive measure of restraint cannot be used (Article 108 §§ 1 and 3). The judicial decision to place a person in custody may be appealed against to a higher court within three days. The higher court must decide the appeal within three days of the date on which the appeal is lodged (Article 108 § 11). 85. A period of detention pending investigation may not exceed two months (Article 109 § 1). A judge may extend that period up to six months (Article 109 § 2). Further extensions of up to twelve months, or in exceptional circumstances, up to eighteen months, may only be granted if the person is charged with serious or particularly serious criminal offences (Article 109 § 3). No extension beyond eighteen months is permissible and the detainee must be released immediately (Article 109 § 4). 86. Chapter 54 (“Extradition of a person for criminal prosecution or execution of a sentence”) regulates extradition procedures. Upon receipt of a request for extradition that is not accompanied by an arrest warrant issued by a foreign court, a prosecutor must decide on the measure of restraint in respect of the person whose extradition is sought. The measure must be applied in accordance with established procedure (Article 466 § 1). If a request for extradition is accompanied by a detention order issued by a foreign court, a prosecutor may impose house arrest on the individual concerned or place him or her in detention “without seeking confirmation of the validity of that order from a Russian court” (Article 466 § 2). 87. By decision no. 101-O of 4 April 2006 the Constitutional Court held that the absence of any specific regulation of detention matters in Article 466 § 1 did not create a gap in the law that was incompatible with the constitutional guarantee against arbitrary detention. Article 8 § 1 of the Minsk Convention provided that, in executing a request for legal assistance, the requested party would apply its domestic law, which in the case of Russia was the procedure laid down in the CCrP. Such procedure comprised, in particular, Article 466 § 1 of the Code and the norms in its Chapter 13 (“Measures of restraint”) which, by virtue of their general character and position in Part I of the Code (“General provisions”), applied to all stages and forms of criminal proceedings, including proceedings for the examination of extradition requests. Accordingly, Article 466 § 1 of the CCrP did not allow the authorities to apply a custodial measure without complying with the procedure established in the CCrP or the timelimits fixed in the Code. 88. By decision no. 333-O-P of 1 March 2007, the Constitutional Court held that while Articles 61 and 62 of the Minsk Convention did not govern the procedure for detention pending the receipt of an extradition request, the applicable procedures and time-limits were to be established by domestic legal provisions in accordance with Article 8 of the Minsk Convention. It further reiterated its settled case-law to the effect that the scope of the constitutional right to liberty and personal inviolability was the same for foreign nationals and stateless persons as for Russian nationals. A foreign national or stateless person may not be detained in Russia for more than fortyeight hours without a judicial decision. That constitutional requirement served as a guarantee against excessively long detention beyond forty-eight hours, and also against arbitrary detention, in that it required a court to examine whether the arrest was lawful and justified. The Constitutional Court held that Article 466 § 1 of the CCrP, read in conjunction with the Minsk Convention, could not be construed as permitting the detention of an individual for more than forty-eight hours on the basis of a request for his or her extradition without a decision by a Russian court. A custodial measure could be applied only in accordance with the procedure and within the time-limits established in Chapter 13 of the CCrP. 89. By decision no. 383-O-O of 19 March 2009 the Constitutional Court upheld the constitutionality of Article 466 § 2 of the CCrP, stating that this provision “does not establish time-limits for custodial detention and does not establish the grounds and procedure for choosing a preventive measure, it merely confirms a prosecutor’s power to execute a decision already delivered by a competent judicial body of a foreign state to detain an accused. Therefore the disputed norm cannot be considered to violate the constitutional rights of [the claimant] ...” 92. Article 33 of the UN Convention on the Status of Refugees of 1951, which was ratified by Russia on 2 February 1993, provides as follows: “1. No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.” 93. The Refugees Act (Law no. 4258-I of 19 February 1993), as in force at the material time, incorporated the definition of the term “refugee” contained in Article 1 of the 1951 Geneva Convention, as amended by the 1967 Protocol relating to the Status of Refugees. The Act defines a refugee as a person who is not a Russian national and who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, ethnic origin, or membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, unwilling to return to it (section 1(1)(1)). 94. The Act does not apply to anyone believed on reasonable grounds to have committed a crime against peace, a war crime, a crime against humanity, or a serious non-political crime outside the country of refuge prior to his admission to that country as a person seeking refugee status (section 2(1)(1) and (2)). 95. A person who has applied for refugee status or who has been granted refugee status cannot be returned to a State where his life or freedom would be imperilled on account of his race, religion, nationality, membership of a particular social group or political opinion (section 10(1)). 96. If a person satisfies the criteria established in section 1(1)(1), or if he does not satisfy those criteria but cannot be expelled or deported from Russia for humanitarian reasons, he may be granted temporary asylum (section 12(2)). A person who has been granted temporary asylum cannot be returned against his will to the country of his nationality or to the country of his former habitual residence (section 12(4)). The person loses temporary asylum if the underlying circumstances cease to exist or if he is granted a permanent residence permit in Russia or establishes his place of residence outside Russian territory (section 12(5)). The person is deprived of temporary asylum, inter alia, if he is found guilty of a crime committed on Russian territory or is found to have submitted false information or documents that had justified the authorities’ decision to grant him temporary asylum (section 12(6)). 97. According to the Procedure for Granting Temporary Asylum adopted by Decree no. 274 of 9 April 2001, as in force at the material time, a competent FMS body delivers a certificate for temporary asylum to any person to whom it has been granted (§ 8). The certificate constitutes an identity document in the Russian Federation (§ 9). When a certificate for temporary asylum is delivered to a person, his other identity documents are withheld by the FMS on a temporary basis. Temporary asylum is granted for a period of up to one year, which may be renewed for each consecutive year upon request by the person concerned, provided that the underlying circumstances continue to exist (§ 12). The person to whom temporary asylum is granted enjoys all rights and obligations provided for by the Refugees Act except the right to receive a lump-sum allowance (§ 13). 98. Recommendation No. R (98) 13 by the Committee of Ministers of the Council of Europe 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: “The Committee of Ministers ... 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, 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: ... 2.2. 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.” 99. On a more general level, Recommendation Rec (2004) 6 of the Committee of Ministers to member States on the improvement of domestic remedies states as follows: The Committee of Ministers ... Emphasising that it is for member states to ensure that domestic remedies are effective in law and in practice, and that they can result in a decision on the merits of a complaint and adequate redress for any violation found; Noting that the nature and the number of applications lodged with the Court and the judgments it delivers show that it is more than ever necessary for the member states to ascertain efficiently and regularly that such remedies do exist in all circumstances ... Considering that the availability of effective domestic remedies for all arguable claims of violation of the Convention should permit a reduction in the Court’s workload as a result, on the one hand, of the decreasing number of cases reaching it and, on the other hand, of the fact that the detailed treatment of the cases at national level would make their later examination by the Court easier; Emphasising that the improvement of remedies at national level, particularly in respect of repetitive cases, should also contribute to reducing the workload of the Court; Recommends that member states, taking into account the examples of good practice appearing in the appendix: I. ascertain, through constant review, in the light of case-law of the Court, that domestic remedies exist for anyone with an arguable complaint of a violation of the Convention, and that these remedies are effective, in that they can result in a decision on the merits of the complaint and adequate redress for any violation found; II. review, following Court judgments which point to structural or general deficiencies in national law or practice, the effectiveness of the existing domestic remedies and, where necessary, set up effective remedies, in order to avoid repetitive cases being brought before the Court; ...” 100. The Code of Criminal Procedure establishes that every report of a crime must be accepted, verified and decided upon within three days by an inquiry officer, inquiry agency, investigator or prosecutor. They may proceed, with experts’ assistance or on their own, to documentary verifications, checks, and the examination of documents, objects or dead bodies, and may issue compulsory orders for operational search activities (Article 144 § 1). The aforementioned period of three days may be extended to ten and thirty days in certain circumstances (Article 144 § 3). A criminal investigation may be initiated by an investigator or a prosecutor following a complaint by an individual or on the investigating authorities’ own initiative, where there are reasons to believe that a crime has been committed (Articles 146 and 147). 101. Orders by an investigator or a prosecutor refusing to institute criminal proceedings or terminating a case, and other orders and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede a citizen’s access to justice, may be appealed against to a district court, which is empowered to check the lawfulness and grounds of the impugned decisions (Article 125). 102. A report released by Amnesty International in 2007 contained the following information on the death of Sadullo Marufov in police custody (see paragraph 12 above): “Sadullo Marufov, a member of the Islamic Renaissance Party (IRP), died in police custody in May after he was detained for questioning by law enforcement officers in Isfara. Initially the officers claimed that he had committed suicide by jumping from a third floor window. The IRP claimed that an autopsy report indicated that he had been beaten and ill-treated, and alleged that he had been pushed from the window. The general prosecutor’s office subsequently announced that following an investigation three officers had been detained.” 103. The reports by the United Nations and nongovernmental organisations on the situation in Tajikistan at the material time appear in several judgments of the Court cited above (see, among others, Khodzhayev, §§ 72-74, and Gaforov, §§ 93-100). More recently, the situation was further reported upon as follows. 104. Concluding his visit to Tajikistan in May 2012, the UN Special Rapporteur on Torture, Mr Juan E. Méndez, stated that “pressure on detainees, mostly as a means to extract confessions, is practiced in Tajikistan in various forms, including threats, beatings and sometimes by applying electric shock”. He stressed that “confessions extracted by violence remain the main investigatory tool of law enforcement and prosecutorial bodies”. He also expressed his concerns at the lack of safeguards against illegal extradition or rendition from and to other countries, as “there seems to be no meaningful opportunity for judicial review of these measures that are generally conducted by the law enforcement bodies under the direction of the Prosecutor General. The Minsk Convention on Legal Assistance in civil and criminal matters of 1993, other agreements between CIS countries ... offer general language about protection against abuse, but they operate more meaningfully as international cooperation in law enforcement. The result is that international law prohibitions on refoulement to places where a person may be subjected to torture or cruel, inhuman or degrading treatment are not guaranteed in fact” (End-of-mission Statement by the UN Special Rapporteur on Torture, Juan E. Méndez. Preliminary findings on his country visit to the Republic of Tajikistan, 10-18 May 2012). 105. On 27 June 2011 a group of non-governmental organisations including international NGOs (Amnesty International, the International Federation for Human Rights (FIDH), Penal Reform International (PRI) and the World Organisation Against Torture (OMCT)), as well as Tajikistani NGOs (the Bureau of Human Rights and Rule of Law, the Centre for Children’s Rights, the Collegium of Advocates of the Soghd Region, the Sipar Collegium of Advocates of the Republic, and several others) released a joint statement. It was headed “Tajikistan: A coalition of nongovernmental organisations is calling on the government to end torture and fulfil its international obligations” and, in so far as relevant, reads as follows: “In Tajikistan police have in many cases been accused of torturing or beating detainees to extract money, confessions or other information incriminating the victim or others. This abuse has mostly taken place in the early stages of detention; in many cases victims are initially detained without contact with the outside world ... Torture practices reported in Tajikistan include the use of electric shocks; attaching plastic bottles filled with water or sand to the detainee’s genitals; rape; burning with cigarettes. Beating with batons, truncheons and sticks, kicking and punching are also believed to be common. ... [S]afeguards against torture enshrined in domestic law are not always adhered to. For example, while the new Criminal Procedure Code stipulates that detainees are entitled to a lawyer from the moment of their arrest, in practice lawyers are at the mercy of investigators, who can deny them access for many days. During this period of incommunicado detention, the risk of torture or other ill-treatment is particularly high. The new Criminal Procedure Code also introduced remand hearings within 72 hours of a suspect’s arrest. However, they often take place with a delay, and judges in many cases ignore torture allegations and the injuries presented to them in the courtroom. Usually they rely on the version of events given by [those] accused of the torture. There are no routine medical examinations when detainees are admitted to police stations and temporary detention facilities. Upon transfer to pre-trial detention facilities under the jurisdiction of the Ministry of Justice they undergo a medical examination. However, when medical personnel suspect that a detainee [has undergone] torture or other ill-treatment they ... usually return them to the temporary detention facility until the signs of injury have faded. Victims rarely lodge complaints ... for fear of repercussions, and impunity for abusive officers is the norm. Often relatives and lawyers are reluctant to file complaints, so as not to worsen the situation for the detainee. Prosecutor’s offices are tasked with investigating allegations of torture. Sometimes close personal and structural links between prosecutor’s offices and police undermine the impartiality of prosecutors. The authorities have not published comprehensive statistics on prosecutions of law-enforcement officers relating specifically to torture or other ill-treatment, rather than broader charges such as “abuse of power“ or “exceeding official authority”. Judges [regularly] base verdicts on evidence allegedly extracted under duress ... Tajikistan has not given the International Committee of the Red Cross access to detention facilities to carry out monitoring since 2004. It has not ratified the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, which provides for a system of regular visits to places of detention carried out by independent international and national bodies.” 106. In January 2012 Human Rights Watch released its World Report 2012, in which the relevant chapter on Tajikistan states: “Torture remains an enduring problem within Tajikistan’s penitentiary system and is used to extract confessions from defendants, who are often denied access to family and legal counsel during initial detention. Despite discussions with the International Committee of the Red Cross (ICRC) in August, authorities have not granted ICRC access to places of detention. With rare exceptions, human rights groups are also denied access. While torture is practiced with near impunity, authorities took a few small steps to hold perpetrators accountable ... Under the pretext of combating extremist threats, Tajikistan continues to ban several peaceful minority Muslim groups... Local media continued to report on prosecutions of alleged members of Hizb ut-Tahrir and the Jamaat Tabligh movement.” 107. The report by Amnesty International entitled “Shattered Lives: Torture and other ill-treatment in Tajikistan”, released on 12 July 2012, reads, in so far as relevant, as follows: “... Amnesty International’s research shows that practices of torture and other ill‑treatment remain widespread in all types of detention facilities in Tajikistan. Detainees at the early stages of detention were found to be at particular risk, subjected to torture or other ill-treatment by law enforcement officers in order to “solve” crimes by obtaining confessions of guilt and also to obtain money from torture victims or their relatives. The general climate of impunity keeps police abuse virtually unchecked ... 2. The scale of torture and other ill-treatment in Tajikistan In Tajikistan torture and ill-treatment occur in a climate of secrecy. [T]he perpetrators are rarely brought to justice ... [T]orture and other ill-treatment occur particularly in pre-trial detention ... Domestic law has significant shortcomings when it comes to safeguards against torture. In addition, those crucial safeguards that do exist in law, such as access to a lawyer immediately after apprehension, are rarely applied in practice ... 2.1. Torture and other ill-treatment by police [T]he routine use of torture results from the lack of technical capacity to investigate crimes... A local independent human rights observer told Amnesty International that: “people may get away without beatings in less serious cases, but in cases involving grave crimes – if they don’t confess, they get beaten”, adding that police “won’t hesitate to resort to violence ... 2.2. Torture and other ill-treatment used in the context of national security and counter-terrorism The fight against terrorism and threats to national security are often invoked by the Tajikistani authorities as key to securing national and regional stability. However, ... frequently human rights are violated in the pursuit of groups perceived as a threat to national security ... [The] research indicates that particular targets are Islamic movements and Islamist groups or parties, and that people accused of being Islamist extremists are at particular risk of torture and other ill-treatment in Tajikistan ... In September 2010 an explosion occurred at the office of the [police] in Khujand, resulting in several deaths and injuries to over two dozen people. Following this the Tajikistani authorities redoubled their efforts to find members of Islamic movements and Islamist groups or parties who they alleged were responsible. Law enforcement officers came under increased pressure to solve cases with national security implications ... 8. Torture and other ill-treatment upon return to Tajikistan ... Amnesty International is concerned at a series of recent cases where the Tajikistani authorities have made extradition requests based on unreliable information for people alleged to be members of banned Islamic groups, who have subsequently alleged being tortured on their return. Many of these extradition requests have been issued for people in the Russian Federation.” 108. In Resolution 1571 (2007) on member States’ duty to cooperate with the Court, adopted on 2 October 2007, the Parliamentary Assembly stated, inter alia: “13. The Court has also used the instrument of interim measures (Article 39 of the Rules of the Court) in order to prevent irreparable damage. The Assembly commends the Court for finding that such interim measures are binding on states parties. It considers that this instrument may have still wider potential uses for protecting applicants and their lawyers who are exposed to undue pressure. The Court may find it useful in this respect to examine the practice of the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights, which have used interim measures to enjoin the authorities to place applicants under special police protection in order to shield them from criminal acts by certain non-state actors.” 109. The explanatory memorandum adopted by the Assembly’s Committee of Legal Affairs and Human Rights (Doc. 11183 of 9 February 2007, § 48) referred in this connection to the practice developed under Article 63 § 2 of the American Convention on Human Rights, which empowers the Inter-American Court of Human Rights to order positive action by states. For example, in the Aleman-Lacayo case, the InterAmerican Commission of Human Rights asked the Court to adopt a measure requesting that the Government of Nicaragua adopt effective security measures to protect the life and personal integrity of Dr AlemanLacayo, including providing him and his relatives with the “name and telephone number of a person in a position of authority” who would be responsible for providing them with protection. The Court granted the Commission’s request and called upon the Nicaraguan Government to adopt “such measures as are necessary to protect the life and personal integrity of Dr Aleman-Lacayo” (see Aleman-Lacayo case, Inter-American Court of Human Rights, Order of 2 February 1996). 110. The Assembly’s Resolution 1571 (2007) further called upon the competent authorities of all member States to: “17.1. refrain from putting pressure on applicants, potential applicants, their lawyers or family members, aimed at obliging them to refrain from submitting applications to the Court or withdrawing those applications which have already been submitted; 17.2. take positive measures to protect applicants, their lawyers or family members from reprisals by individuals or groups including, where appropriate, allowing applicants to participate in witness protection programmes, providing them with special police protection or granting threatened individuals and their families temporary protection or political asylum in an unbureaucratic manner; 17.3. thoroughly investigate all cases of alleged crimes against applicants, their lawyers or family members and to take robust action to prosecute and punish the perpetrators and instigators of such acts so as to send out a clear message that such action will not be tolerated by the authorities; ...” 111. The Assembly further stated: “18. The Assembly is of the view that member states’ co-operation with the European Court of Human Rights would benefit if the Court were to continue to develop its case law to ensure full implementation of the member states’ duty to cooperate with the Court, in particular by: 18.1. taking appropriate interim measures, including new types thereof, such as ordering police protection or relocation of threatened individuals and their families; 18.2. urgently notifying applications to respondent states in cases where the Court is informed of credible allegations of undue pressure on applicants, lawyers or family members; 18.3. granting priority to such cases; 18.4. taking up cases of alleged unlawful pressure on applicants and lawyers with the representatives of the state concerned and, as appropriate, alerting the Committee of Ministers to any persistent problems.” 112. Lastly, the Assembly invited “national parliaments to include all aspects of states’ duty to co-operate with the Court in their work aimed at supervising the compliance of governments with obligations under the Convention, and to hold the executive or other authorities accountable for any violations.” 113. In Recommendation 1809 (2007) the Assembly proposed that the Committee of Ministers address a recommendation to all member States inviting them to take the necessary measures in order to prevent applicants who had initiated proceedings before the Court, their lawyers, members of their families, or the NGOs assisting them from being subjected to unlawful pressure or reprisals, and to ensure that perpetrators and instigators of such acts were brought to account. 114. The Assembly’s more recent Recommendation 1956 (2011) of 26 January 2011 specifically dealing with the question of interim measures under Rule 39 reads as follows: “3. A major concern of the Assembly is the growing number of member states that have recently ignored interim measures ordered by the Court under Rule 39. This emphasises the need for the Committee of Ministers to reinforce its role in the execution of the Court’s judgments. 4. The Assembly therefore invites the Committee of Ministers to: 4.1. consider extending its mandate under Article 46 of the European Convention on Human Rights (“the Convention”, ETS No. 5) by introducing a competence to monitor compliance with the letter and spirit of Rule 39 measures of which notice has been given under Rule 39.2 of the Rules of Court; 4.2. fully use its competence pursuant to Article 46 of the Convention in resolving the cases of non-compliance in a way which fully and effectively upholds the Convention; ensure, in collaboration with the Court, that a mechanism or working method is established for follow-up in cases of non-compliance, and investigate cases and/or publish statements in this connection; 4.3. give priority to judgments finding violations of Article 34 of the Convention in cases concerning expulsion and extradition of aliens, while supervising their execution by respondent states according to Article 46 of the Convention; 4.4. seek to adopt an interim resolution calling for member states to take individual and/or general measures, in those cases where an individual has been expelled to a state which has no wish to return him or her; 4.5. co-operate with the Court and other relevant actors in order to publish uptodate Rule 39 statistics as well as information on the extent of compliance by contracting parties; ...” 115. In its Resolution 1788 (2011) adopted on the same date, the Assembly also stated: “10. While still relatively rare, the growing number of breaches is of grave concern given the harm to the individuals concerned and the impact on the integrity of the Convention system as a whole. The Assembly condemns any disrespect of legally binding measures ordered by the Court, and in particular disrespect for the right of individual application as guaranteed by Article 34 of the Convention, as a blatant disregard for this unique system of protection of human rights. ... 15. The Assembly therefore urges the member states of the Council of Europe to: 15.1. guarantee the right of individual petition to the Court under Article 34, neither hinder nor interfere with the exercise of that right in any manner whatsoever and fully comply with the letter and spirit of interim measures indicated by the Court under Rule 39, in particular by: 15.1.1. co-operating with the Court and Convention organs, by providing full, frank and fair disclosure in response to requests for further information under Rule 39(3), and facilitating to the highest degree any fact-finding requests made by the Court; ... 16. The Assembly recognises the primary role of the Court in finding solutions for dealing with interim measures under Rule 39 and in this context expresses the hope that the Court will: ... 16.8. require, in more cases, the adoption of specific measures by states to remedy harm caused, in order that the Committee of Ministers may more effectively monitor the execution of judgments ...” 116. In Resolutions ResDH(2001)66 and ResDH(2006)45 the Committee of Ministers emphasised that the principle of cooperation with the Court embodied in the Convention was of fundamental importance for the proper and effective functioning of the Convention system and called on the governments of the Contracting States to ensure that all relevant authorities strictly complied with that obligation. 117. The Committee of Ministers’ Interim Resolution CM/ResDH(2010)83 concerning the Court’s judgment in the case of Ben Khemais v. Italy (no. 246/07, 24 February 2009) reads as follows: “The Committee of Ministers ... Recalling that the applicant in the present case was expelled to Tunisia on 2 June 2008 despite the Court’s interim measure under Rule 39 of the Rules of the Court requiring the Italian authorities not to do so until further notice; Noting that the Court consequently found that the applicant’s expulsion amounted to violations of Article 3 and of Article 34 of the Convention; Recalling that, in the context of the examination of the present case, the Committee noted, at its 1078th meeting (March 2010), that the Italian authorities were fully committed to complying with the interim measures indicated by the Court under Rule 39; Deploring that, despite this commitment, the Italian authorities expelled another applicant, Mr. Mannai, to Tunisia on 1 May 2010 in breach of an interim measure indicated on 19 February 2010 by the Court requiring the Italian authorities not to do so until further notice; Noting with concern that in at least two other cases the Italian authorities have expelled applicants to Tunisia although the Court had previously indicated not to do so under Rule 39 ; Recalling firmly that, according to the Court’s well-established case-law, Article 34 of the Convention entails an obligation to comply with interim measures indicated pursuant to Rule 39 of the Rules of the Court since the Grand Chamber’s judgment of 4 February 2004 in the case of Mamatkulov and Askarov against Turkey, Stressing once again the fundamental importance of complying with interim measures indicated by the Court under Rule 39 of the Rules of Court; Expressing confidence however that the Italian authorities will finally take the necessary measures to ensure that interim measures indicated by the Court are strictly complied with, to prevent similar violations in the future; FIRMLY RECALLS the obligation of the Italian authorities to respect interim measures indicated by the Court; URGES the Italian authorities to take all necessary steps to adopt sufficient and effective measures to prevent similar violations in the future; DECIDES to examine the implementation of this judgment at each human rights meeting until the necessary urgent measures are adopted.” 118. Responding to Recommendation 1809 (2007) of the Parliamentary Assembly (see paragraph 113 above), the Committee of Ministers adopted Resolution CM/Res(2010)25 on member States’ duty to respect and protect the right of individual application to the Court, the relevant parts of which read as follows: “... Emphasising that the right of individuals to apply to the European Court of Human Rights (hereinafter referred to as ‘the Court’) is a central element of the convention system and must be respected and protected at all levels; Stressing that respect for this right and its protection from any interference are essential for the effectiveness of the Convention system of human rights protection; Recalling that all States Parties to the Convention have undertaken not to hinder in any way the effective exercise of this right, as stipulated by Article 34 of the Convention; Recalling that positive obligations, including to investigate, form an essential characteristic of the Convention system as a whole; Recalling also that the Court’s case law has clearly established that Article 34 of the Convention entails an obligation for States Parties to comply with an indication of interim measures made under Rule 39 of the Rules of Court and that non-compliance may imply a violation of Article 34 of the Convention; Noting therefore with concern that there have been isolated, but nevertheless alarming, failures to respect and protect the right of individual application (such as obstructing the applicant’s communication with the Court, refusing to allow the applicant to contact his lawyer, bringing pressure to bear on witnesses or bringing inappropriate proceedings against the applicant’s representatives), as found in recent years by the Court; Deploring any interference with applicants or persons intending to apply to the Court, members of their families, their lawyers and other representatives and witnesses, and being determined to take action to prevent such interference; Recalling the 1996 European Agreement relating to persons participating in proceedings of the European Court of Human Rights (ETS No. 161); Recalling its Resolutions ResDH(2001)66 and ResDH(2006)45 on the states’ obligation to co-operate with the European Court of Human Rights, Calls upon the States Parties to: 1. refrain from putting pressure on applicants or persons who have indicated an intention to apply to the Court, members of their families, their lawyers and other representatives and witnesses aimed at deterring applications to the Court, having applications which have already been submitted withdrawn or having proceedings before the Court not pursued; 2. fulfil their positive obligations to protect applicants or persons who have indicated an intention to apply to the Court, members of their families, their lawyers and other representatives and witnesses from reprisals by individuals or groups including, where appropriate, by allowing applicants and witnesses to participate in witness protection programmes and providing appropriate forms of effective protection, including at international level; 3. in this context, take prompt and effective action with regard to any interim measures indicated by the Court so as to ensure compliance with their obligations under the relevant provisions of the Convention; 4. identify and appropriately investigate all cases of alleged interference with the right of individual application, having regard to the positive obligations already arising under the Convention in light of the Court’s case law; 5. take any appropriate further action, in accordance with domestic law, against persons suspected of being the perpetrators and instigators of such interference, including, where justified, by seeking their prosecution and the punishment of those found guilty; 6. if they have not already done so, ratify the 1996 European Agreement relating to persons participating in proceedings of the European Court of Human Rights, Decides also to examine urgently, particularly in the context of its supervision of the execution of judgments finding a violation of Article 34, to any incident of interference with the right of individual application and encourages the Secretary General to consider exercising his powers under Article 52 of the Convention where justified by the circumstances.” 119. In its Final Declaration, the High Level Conference on the Future of the Court held in Izmir on 26-27 April 2011 reiterated the requirement for the States Parties to comply with the interim measures in the following terms: “[The Conference] stresses the importance of States Parties providing national remedies, where necessary with suspensive effect, which operate effectively and fairly and provide a proper and timely examination of the issue of risk in accordance with the Convention and in light of the Court’s case law; and, while noting that they may challenge interim measures before the Court, reiterates the requirement for States Parties to comply with them.” 120. Replying to the Assembly’s Recommendation 1956 (2011) (see paragraph 114 above), the Committee of Ministers assured the Assembly that “it fully uses its competence under Article 46 in all cases establishing violations of Article 34, whether in order to ensure that urgent individual measures are rapidly adopted, or repetitions of violations prevented through the introduction of necessary domestic safeguards.” The Committee reminded the Assembly that the new working methods applied since January 2011 had fixed as indicators for classification under enhanced supervision all cases calling for urgent individual measures or revealing major structural problems (see Doc. 12836). 121. Following the information received from the Court about repeated complaints of Russia’s disregard for interim measures in the present case and several other cases (see paragraph 52 above), the Committee of Ministers examined that issue in connection with the execution of the Court’s judgment in the Iskandarov case (cited above). 122. The Committee of Ministers’ decision (CM/Del/Dec(2012)1136/19), adopted on 8 March 2012 at the 1136th meeting of the Ministers’ Deputies, reads, in so far as relevant, as follows: “The Deputies ... 4. as regards the Iskandarov case, recalled that the violations of the Convention in this case were due to the applicant’s kidnapping by unknown persons, whom the Court found to be Russian State agents, and his forcible transfer to Tajikistan after his extradition had been refused by the Russian authorities; 5. noted with profound concern the indication by the Court that repeated incidents of this kind have recently taken place in respect of four other applicants whose cases are pending before the Court where it applied interim measures to prevent their extradition on account of the imminent risk of grave violations of the Convention faced by them; 6. took note of the Russian authorities’ position that this situation constitutes a source of great concern for them; 7. noted further that the Russian authorities are currently addressing these incidents and are committed to present the results of the follow-up given to them in Russia to the Court in the framework of its examination of the cases concerned and to the Committee with regard to the Iskandarov case; 8. urged the Russian authorities to continue to take all necessary steps to shade light on the circumstances of Mr. Iskandarov’s kidnapping and to ensure that similar incidents are not likely to occur in the future and to inform the Committee of Ministers thereof.” 123. During its subsequent examination of the issue, the Committee of Ministers, confronted with yet another case of alleged disappearance of an applicant notwithstanding the interim measures indicated by the Court, reiterated its previous concerns at the repetition of such incidents and continued as follows (see decision adopted on 6 June 2012 at the 1144th meeting - CM/Del/Dec(2012)1144/18): “The Deputies ... 3. deplored the fact that, notwithstanding the serious concerns expressed in respect of such incidents by the President of the Court, the Committee of Ministers and by the Russian authorities themselves, they were informed that yet another applicant disappeared on 29 March 2012 in Moscow and shortly after found himself in custody in Tajikistan; 4. took note of the Russian authorities’ position according to which the investigation in the Iskandarov case is still ongoing and had not at present established the involvement of the Russian State in the applicant’s kidnapping; 5. regretted however that up to now, neither in the Iskandarov case nor in any other case of that type have the authorities been able to make tangible progress with the domestic investigations concerning the applicants’ kidnappings and their transfer, nor to establish the responsibility of any state agent; 6. noted that, according to the information given by the Russian authorities, following the dissemination in April 2012 of the Committee of Ministers’ decision adopted at the 1136th meeting to the Prosecutor General’s Office, to the Investigative Committee, the Ministry of the Interior, the Federal Migration Service and to the Federal Baliffs’ Service, no other incidents of this kind had taken place, and invited the Russian authorities to clarify whether they consider that this measure is sufficient to effectively put an end to such an unacceptable practice.” 124. By a decision adopted at the 1150th meeting of the Ministers’ Deputies on 26 September 2012 (CM/Del/Dec(2012)1150), the Committee of Ministers made the following findings and assessment: “The Deputies ... 4. noted with regret that to date no-one responsible for the applicant’s illegal transfer to Tajikistan has been identified in the Iskandarov case; ... 6. noted that no incidents similar to those described in the Iskandarov case took place since the last examination of this case by the Committee and invited the Russian authorities to continue to take all necessary measures in order to ensure that such incidents no longer occur in the future; 7. welcomed the adoption on 14 June 2012 by the Supreme Court of the Russian Federation of a Ruling providing important guidelines on how to apply domestic legislation in the light of the Convention requirements, in particular with regard to Articles 3 and 5 of the Convention; 8. noted further with satisfaction that the measures adopted by the Russian authorities in response to the judgments of this group (the Constitutional Court’s decision, instructions issued by the Prosecutor General and the Decisions of the Plenum of the Supreme Court) have already resulted in a number of judgments of the Court finding no violations of the Convention; 9. encouraged the Russian authorities to ensure rapid progress with regard to the preparation and adoption of the legislative reform required by these judgments.” 125. The Committee of Ministers resumed examination of the issue at the 1157th meeting of the Ministers’ Deputies held on 6 December 2012 and adopted the following decision (CM/Del/Dec(2012)1157): “The Deputies 1. recalled that in abiding by a Court’s judgment, the State party has an obligation to take all measures to prevent violations similar to those found by the Court; 2. consequently deeply regretted that, notwithstanding the serious concerns expressed by the Court and by the Committee of Ministers in respect of incidents allegedly similar to that in the Iskandarov judgment, they were informed that yet another applicant, who was subject to an interim measure indicated by the Court under Rule 39 in connection with his planned extradition to Tajikistan, would have disappeared from Volgograd on 20 October 2012 (Latipov v. Russian Federation, No. 77658/11); 3. noted that such incidents, if confirmed, and lack of appropriate response thereto by the authorities would raise a more general issue as to the compatibility of this situation with the obligations of the Russian Federation under the Convention; 4. reiterated their regret expressed in their earlier decision that up to now, neither in the Iskandarov case nor in any other case of that type have the authorities been able to make tangible progress with the domestic investigations concerning the applicants’ kidnappings and their transfer, nor to establish the responsibility of any state agent; 5. consequently called upon the Russian authorities to address without further delay this worrying and unprecedented situation, notably by adopting protective measures in respect of other persons who may be subject to an interim measure indicated by the Court under Rule 39 in connection with their removal from the Russian territory and ensuring that all such incidents are effectively investigated in strict compliance with their Convention obligations; 6. invited the Russian authorities to provide information on the applicant’s current situation in the Iskandarov case, in particular as far as guarantees against illtreatment are concerned.” 126. The Committee of Ministers’ latest decision on the matter (CM/Del/Dec(2013)1164), which was adopted on 7 March 2013 at the 1164th meeting of the Ministers’ Deputies, reads as follows: “The Deputies 1. took note of the Russian authorities’ position according to which the measures taken so far can prevent further abductions and forced transfers of persons in whose respect the Court indicated an interim measure under Rule 39 of its Rules of Procedure; 2. noted however with serious concern that at present several complaints of foreign nationals are pending before the Court concerning alleged violations of their rights and the non-observance of interim measures indicated by the Court with regard to their forced transfer from the territory of the Russian Federation; 3. invited the Russian authorities to clarify the relevance of the measures already taken in circumstances similar to those described in the Iskandarov and Abdulkhakov judgments; 4. reiterated their call upon the Russian authorities to adopt without further delay the necessary measures to put an end to such incidents by taking further special protective measures in respect of the applicants and a set of measures to ensure rapid and effective investigations into disappearances and forced transfers, and to inform the Committee of Ministers accordingly; 5. in view of the persistence of this alarming situation and having regard to the obligations of the Russian Federation under the Convention, invited the President of the Committee of Ministers to address a letter to his Russian counterpart in order to draw his attention to the serious concern of the Committee of Ministers as well as its repeated calls to adopt the above-mentioned measures; 6. decided to resume consideration of these questions at the latest at their 1179th meeting (September 2013) (DH) however agreeing, in the event that a new, similar incident is brought to the Committee’s attention, to return to this issue at their first meeting following notification of such an incident.” | 1 |
dev | 001-5508 | ENG | FIN | ADMISSIBILITY | 2,000 | KAJANEN AND TUOMAALA v. FINLAND | 3 | Inadmissible | Georg Ress | The applicants are Finnish nationals, born in 1945 and 1946 respectively and living in Turku and Kaarina. A. The facts of the case, as submitted by the applicants, may be summarised as follows. The applicants are Justices at the Court of Appeal of Turku. Between the applicants and the representative of their employer a disagreement arose about the amount of their salary. According to the applicants, they were entitled to receive salary corresponding to a higher salary grade than that actually applied. The Chief Secretary of the Court of Appeal (hovioikeuden kansliapäällikkö, hovrättens kanslichef) made a decision that the applicants were not entitled to the higher salary grade. The applicants asked for a notice of appeal, but did not receive one. The applicants nonetheless appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), which on 14 November 1996 stated that as the question concerned the interpretation of a collective bargaining contract on civil servants’ salaries, the court was not competent to try the case. The applicants then took legal action against the State in the Labour Court (työtuomioistuin, arbetsdomstolen). On 3 March 1997, the court found that, according to the Act on the Labour Court (laki työtuomioistuimesta, lag om arbetsdomstolen), a civil servant bound by a collective bargaining contract on civil servants’ salaries was allowed to take legal action before the Labour Court. However, since the applicants were not members of a trade union and therefore not bound by the contract, they could not take legal action before the Labour Court. B. Relevant domestic law and practice According to Section 10a, Subsection 2, of the Constitution Act (Suomen Hallitusmuoto, Regeringsform för Finland), as in force at the relevant time, everyone has the freedom of association. Freedom of association entails the right to form an association without a permit, to be a member or not to be a member of an association and to participate in the activities of an association. The freedom to form trade unions and to organise in order to look after other interests is likewise guaranteed. According to Section 5, Subsections 1 and 2, 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. Section 16 guarantees to everyone the right to have his or her case dealt with appropriately and without undue delay by a legally competent court of law or other authority, as well as to have a decision pertaining to his or her rights or obligations reviewed by a court of law or other independent organ for the administration of justice. In its decision no. 4398 rendered on 31 December 1999 the Supreme Administrative Court held that the above mentioned Section 16, inter alia, guarantees also to a judge not belonging to a trade union the right to have a dispute concerning his salary decided by a court. As the appellants in the case in question could not have their case decided by the Labour Court, the Supreme Administrative Court examined their claim but rejected it on the merits. As from 1 March 2000 the Constitution Act is replaced by the Constitution of Finland (Suomen perustuslaki, Finlands grundlag), which contains provisions identical to those mentioned above. | 0 |
dev | 001-71779 | ENG | RUS | ADMISSIBILITY | 2,005 | NOSOV v. RUSSIA | 3 | Inadmissible | Christos Rozakis | The applicant, Mr Aleksey Valentinovich Nosov, is a Russian national, who was born in 1964 and lives in Omsk. He is represented before the Court by Mr A. Shepelin, a lawyer practising in Omsk. 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 21 December 1996 the limited liability company Azimut-Elita, in which the applicant owned fifty per cent, sold petrol to the public company Technopribor. On 25 April 1997 Technopribor paid a part of the stipulated purchase price. Following unsuccessful attempts to recover the amount outstanding, Azimut-Elita assigned debt to the limited liability company Kompanyony, of which the applicant was, in his submission, director but not the owner. The Government referred to the Kompanyony company as “belonging” to the applicant. In early 1998 Kompanyony sued Technopribor for the amount outstanding and interest thereon. On 5 January 1999 the Commercial Court of the Kabardino-Balkaria Republic granted the action and awarded Kompanyony 2,292,000 Russian roubles (“RUR”). The Kompanyony company was represented by a Mr G., acting on the basis of a form of authority of 14 March 1999. On 15 April 1999 the Appellate Collegium of the Commercial Court of the Kabardino-Balkaria Republic upheld the judgment of 5 January 1999. The judgment became enforceable and on 27 April 1999 a writ of execution was issued. On 30 April 1999 Kompanyony assigned the debt to Mr Sh., a sole trader. On 5 May 1999 the writ was submitted to the court bailiffs’ service for enforcement. As no cassation appeal was lodged within the established time-limit, on 15 May 1999 the judgment became final. On an unspecified date in 1999 the Kompanyony company went into liquidation pursuant to a judicial decision in unrelated proceedings. On 25 December 2000 Mr Sh. assigned the debt to the limited liability company Pamir-99, in which the applicant was, in his submission, director but not the owner. The Government indicated that the company “belonged” to the applicant but its director in 1997 and 1998 had been a certain Mr M. On 28 December 2000 Pamir-99 sued Technopribor for damages incurred through its failure to comply with the judgment. On 31 January 2001 Judge R. of the Federal Commercial Court of the North-Caucasian Circuit issued two procedural orders (определение). The first order granted Technopribor an extension of the time-limit for the submission of a cassation appeal and ordered that the so submitted cassation appeal should be examined. The second order granted Technopribor a deferral of court fees in connection with its cassation appeal. Both orders were issued on standard printed forms: in the first order the words “[the defendant] refers to the fact that it missed the time-limit because of” were struck through; no grounds for granting the extension were given. Similarly, in the second order the words “[on the basis of] the [defendant’s] certificate no. ___ of ____ 2000 showing its insufficient funds” were struck through and replaced with the words “at the [defendant’s] request” without any further details. On 21 February 2001 the applicant filed his objections to the procedural orders which he signed as the director of Pamir-99. He informed the court that he had been the director of Kompanyony from January 1998 to November 1999 when the company had gone into liquidation without succession. The debt was assigned, by the mediation of Mr Sh., to Pamir-99. The applicant argued that, in conformity with Article 85 (4) of the Code of Commercial Procedure, the proceedings could not be re-opened or resumed because the original plaintiff had been liquidated. If the court would nevertheless consider it possible to examine the appeal, he asked that Pamir-99 be joined to the proceedings and copies of the request for the extension of the time-limit and statement of appeal be served on it. On 28 February 2001 the Federal Commercial Court of the North-Caucasian Circuit, sitting in a three-judge formation presided over by Judge R., quashed the judgments of 5 January and 15 April 1999 on the ground that the courts had given an incorrect assessment of the relevant facts, and remitted the claim for a new examination. As regards the reasons for the re-opening, the court held as follows: “The public company Technopribor has lodged a cassation appeal... Pursuant to Article 99 of the Code of Commercial Procedure, the time-limit for lodging a cassation appeal has been extended... [The court] has not received observations on the points of appeal. The court received a telegram from the Kompanyony company that contained a request to adjourn the proceedings until the evidence showing liquidation of the Kompanyony company had been produced. The request for adjournment was dismissed.” The Federal Commercial Court instructed the first-instance court to examine whether the Kompanyony company had gone into liquidation and, if so, discontinue the proceedings in accordance with Article 85 of the Code of Commercial Procedure. On 5 March 2001 the Commercial Court of the Kabardino-Balkaria Republic discontinued proceedings in the action for damages lodged by Pamir-99 on 28 December 2000 because the underlying judgment had been quashed. On 28 May 2001 the Commercial Court of the Kabardino-Balkaria Republic issued a new decision. It noted that, according to the information from the tax authorities, the Kompanyony company had been liquidated. The summons addressed to the company was returned as undelivered. The court held to discontinue the proceedings because the plaintiff failed to appear and ordered the Kompanyony company to bear RUR 24,148.95 in court fees. On 20 June 2001 Pamir-99 sold the applicant the right to claim the debt and damages arising out of the judgment of 5 January 1999. According to a receipt of 10 January 2002, the applicant paid the stipulated amount of RUR 35,000 (approximately EUR 1,100) in cash. On an unspecified date the applicant complained to the Supreme Commercial Court of the Russian Federation about the procedural orders of 31 January 2001. He referred to the fact that the time-limit had been extended two years after it had expired, whilst the defendant was a big factory with large administrative staff. Furthermore, he noted that the Federal Commercial Court failed to give any reasons for the extension. On 5 December 2001 Judge A. of the Supreme Commercial Court responded that there were no grounds for lodging an application for supervisory review. The applicant’s arguments about the absence of a justification for granting the extension were not addressed in the response. The Pamir-99 company sued Technopribor for the damage incurred through its failure to comply with the judgment of 5 January 1999. On 5 March 2001 the Commercial Court of the Kabardino-Balkaria Republic dismissed the Pamir-99’s claim. It noted that the judgment of 5 January 1999 had been quashed on 28 February 2001 and that the plaintiff failed to prove the existence of damage and the causal link with the defendant’s actions. On 31 May 2001 the Appellate Collegium of the Commercial Court of the Kabardino-Balkaria Republic upheld the judgment of 5 March 2001. Articles 47 and 49 provided that organisations could be represented before commercial courts by their bodies, acting within the scope of powers conferred on them by law, regulations or articles of association, or by special representatives acting on the basis of a form of authority. Article 85 (4) established that the commercial court should discontinue the proceedings if the organisation which was a party to the case was liquidated. Article 99 provided that the commercial court could extend a time-limit at the request of a party if it established that the party had missed the time-limit for a good reason. Article 164 set the time-limit for lodging a cassation appeal at one month after the judgment or decision of the commercial court became enforceable. Articles 166 and 168 required the service of copies of the cassation appeal on all parties to the proceedings, failing which the appeal would be disallowed. | 0 |
dev | 001-24052 | ENG | NLD | ADMISSIBILITY | 2,004 | TAHERI KANDOMABADI v. the NETHERLANDS | 4 | Inadmissible | null | The applicant, Mr Akbar Taheri Kandomabadi, is an Iranian national, who was born in 1979 and is currently staying in the Netherlands. He is represented before the Court by Mr M.A. Collet, a lawyer practising in Waalwijk. The facts of the case, as submitted by the parties, may be summarised as follows. On 7 August 2000 the applicant arrived in the Netherlands. On the same day, he applied for asylum. In support of his claim for asylum he submitted the following: Whilst living in Teheran, the applicant and his family (consisting of his mother and his two brothers) were frequently harassed by the authorities. By threatening to arrest the family members, the authorities wanted to exert pressure on the applicant’s father to give himself up. The applicant’s father was a professional soldier who did not agree with the regime. When he was ordered to fight against the Kurds in Iran, he deserted, fled the country and applied for asylum in the Netherlands in 1993. Although his father was not recognised as a refugee within the meaning of Article 1 of the Convention relating to the Status of Refugees of 28 July 1951 (“the Geneva Convention”), he had been granted a residence permit. In order to avoid arrest, the applicant and his mother and siblings stayed with different relatives, making sure never to stay at any one address for very long. However, the authorities always managed to trace them. The applicant was unable to go to school because his name featured on a list of people who were not allowed to attend school. According to the applicant, this was because his father was wanted by the authorities. In March 1994 the Vezarat-e Sepah Pasdaran-e Enqelab-e Islamic (Islamic Revolutionary Guards, “Sepah Pasdaran”) came to arrest the applicant’s older brother, Hamid, but his uncle Bahran had managed to organise Hamid’s departure to Turkey before he could be arrested. In 1996, the applicant, his mother and younger brother also managed to reach Turkey. However, when Hamid was arrested in Istanbul and sent back to Iran, the other relatives also decided to return to Iran out of concern for him. Hamid was detained for two to three months and tortured during that time. His uncle Bahran managed to obtain Hamid’s release, presumably through the payment of bribes. The applicant resumed his life of staying at different addresses. On 8 July 1999, students demonstrated in Teheran following the closure of a newspaper. That night, security services raided dormitories on the university campus. Several students were wounded and others arrested in the raid. As a result, more student protests followed. The protests spread to other cities. Non-students, including the applicant, also participated. During one of the demonstrations, the applicant handed out wood and stones to the students, helped set fire to a bus and a fire engine and built barricades. Troops responsible for public order charged at the demonstrators; the applicant was beaten and his hand broken. After the demonstrations, many people were arrested and nothing more was heard of them. The applicant learnt that photographs had been taken of the people who had set fire to the bus and the fire engine. His uncle Bahran thought that it would be better for the applicant to leave the country and he put up the money for the applicant to go to Turkey in October 1999. Until his departure, he remained in Teheran, staying in hiding at the houses of friends. Whilst in Turkey, the applicant was told by his mother on the telephone that a summons in his name, ordering him to report to the Sepah Pasdaran, had been delivered to his uncle’s address. The applicant stayed in Turkey for some ten months. He did not apply for asylum in Turkey. A “travel agent” arranged for him to go to the Netherlands, together with a number of other people. They travelled by foot, boat, bus and train. The applicant used a Swedish passport in the name of a man of Iranian origin. The passport had been given to him by the “travel agent”. The applicant did not know through which countries his journey took him. In the proceedings on his first request for asylum, the applicant submitted copies of two summonses. The first (“document (A)”) was dated 17 July 1999 and bore the number 1, the second (“document (B)”) was dated 15 August 1999 and bore the number 3 – the applicant stated that the summons bearing number 2 had never been received. The summonses had been issued by Sepah Pasdaran’s Justice Bureau and stated, without giving any reasons, that the applicant was to report to a specific place at a specific time. According to the applicant, these summonses had been given to his mother. Having considered that the applicant’s asylum request could be dealt with in the so-called accelerated procedure (see below), the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the request on 24 August 2000. The applicant’s objection (bezwaar) against this decision was dismissed as manifestly ill-founded on 12 September 2000 by the Acting President of the Regional Court of The Hague, together with his request for a stay of expulsion. The Acting President agreed with the Deputy Minister that the applicant’s failure to submit documents capable of establishing his identity, his nationality or his travel route affected the sincerity of his account and detracted from its credibility. The Acting President further expressed doubts as to the credibility of the applicant’s account concerning the problems encountered by his family in Iran allegedly as a result of the situation of his father. It was noted in this respect that the applicant’s father had told the Netherlands authorities that he had never encountered problems for political reasons, but that he had been unable to obtain promotion in the army on account of several episodes of desertion. The Acting President also did not find it sufficiently established that the Iranian authorities were aware of the applicant’s participation in the student demonstrations, or that he was “wanted” by those authorities as a result of his participation. The applicant was found to have been inconsistent in this regard, first telling the immigration authorities that, whilst in Turkey, his mother had told him that a summons had been sent to his uncle’s address, yet the copies of the summonses submitted dated from the time when the applicant had still been in Iran, and they had allegedly been given to his mother. Finally, the summonses submitted were not originals and did not state the reason why the applicant was supposed to report to the authorities. On 9 July 2001 the applicant requested both the Deputy Minister and the Regional Court to review their respective decisions in view of the fact that he had in the meantime managed to obtain original documents. The Regional Court refused this request in a decision on 15 February 2002, stating in an obiter dictum that the documents might lead the applicant to decide to lodge a new request for asylum. On 25 June 2002 the Deputy Minister informed the applicant that a request for revision could only be made in the form of a new request for asylum. The applicant was subsequently informed when and where he should formally lodge such a new request. The applicant lodged his second request for asylum on 2 August 2002. This was also dealt with in the accelerated procedure. In support of this request he submitted the originals of the above-mentioned summonses (A) and (B), as well as a further summons (“document (C)”), dated 28 August 1999. He also stated that his uncle in Iran had recently managed to get a third person to obtain the following, original, documents from a file on the applicant: – a letter/memo dated 11 September 1999 from the Justice Bureau in the Western Teheran district to the Opposition Operations Department, stating that the applicant was being prosecuted on charges of participation in the revolt at the university campus, and requesting the addressee to arrest the applicant (“document (D)”); – an undated letter/memo (the space after “date: ” is left blank) from the assistant criminal investigations officer in the police operations division to the commanding officer of border controls, in which reference is made to a letter dated 29 November 1999 of the public prosecution department, and in which the addressee is requested to ensure that the applicant does not leave the country and is arrested should he try to leave (“document (E)”); – an undated letter/memo (the space after “date: ” is left blank) from an assistant information officer to his counterpart in the police identification division, in which reference is made to the order issued by the commanding officer of Sepah Pasdaran relating to the identification of the suspects at the university campus, and in which the addressee is requested to make available all information concerning the background of the applicant (“document (F)”); – an undated letter/memo (the space after “date: ” is left blank) from an assistant information officer to the commanding officer of the Greater Teheran District, in which reference is made to the order issued by the Sepah Pasdaran commanding officer relating to the arrest of those persons who had “caused the university campus [disturbance]”, and in which the addressee is requested to observe all of the applicant’s movements so that he could be arrested once his whereabouts were known (“document (G)”). The applicant’s second request for asylum was rejected by the Minister for Aliens Affairs and Integration (Minister voor Vreemdelingenzaken en Integratie, the successor of the Deputy Minister of Justice) on 5 August 2002. The Minister held that the documents submitted by the applicant did not constitute newly emerged facts or altered circumstances. In this respect, the Minister found that no decisive importance could be attributed to the undated documents. The new documents did not lead to a conclusion different from the one reached on the first request for asylum, given that in those earlier proceedings the applicant’s account had not been found wholly credible; the applicant had not established his identity so that it could not be ascertained whether the new documents related to him, and he had failed to give a plausible explanation as to why he could not have submitted the new documents at an earlier stage. For these reasons, the Minister did not consider that the merits of the new request for asylum should be examined. He therefore rejected it by referring to the decision on the first request, in accordance with Article 4:6 of the General Administrative Law Act (Algemene Wet Bestuursrecht). On 6 September 2002 the provisional-measures judge (voorzieningenrechter) of the Regional Court of The Hague, sitting in Arnhem, rejected both the applicant’s request for a stay of expulsion and his appeal (beroep) against the decision of the Minister. The judge agreed with the Minister that no newly emerged facts or altered circumstances had been adduced by the applicant. Such facts or circumstances only existed if they had not played a role in the proceedings on the first request for asylum and if they could not have been submitted at that time. Facts and circumstances which had been known to the applicant prior to 12 September 2000 (the date of the final decision on the first request for asylum) could thus in principle not be considered. The documents (E), (F) and (G) could only be seen as further arguments (nadere bewijsvoering) relating to the first request which had already been rejected. The applicant lodged a further appeal (hoger beroep) with the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State), in which he argued that there were “altered circumstances”: his first request for asylum had been rejected because his account was found not to be credible, whereas the new documents showed that it was credible. The further appeal was rejected on 8 November 2002, the Administrative Jurisdiction Division finding that since documents (E), (F) and (G) were undated, it could not be established that it had been impossible for the applicant to submit them in the proceedings on his first request for asylum. It was further held that the applicant had not adduced any exceptional facts and circumstances relating to him personally, on the basis of which his new request for asylum fell to be assessed outside the framework of Article 4:6 of the General Administrative Law Act. Following the rejection of the applicant’s first request for asylum by the Deputy Minister of Justice on 24 August 2000, the applicant’s entitlement to State-sponsored reception facilities ceased, and it was not revived with the lodging of the second request for asylum. The applicant subsequently received some financial support from refugee and charitable organisations and private donors, but from February 2004 he was no longer in receipt of any kind of income. On 19 April 2004 he lodged an official request to the Central Agency for the Reception of Asylum Seekers (Central Orgaan opvang Asielzoekers; hereafter the “COA”) to be provided with facilities to meet his basic needs. Having received no reaction, the applicant lodged an objection against the implied refusal (fictieve weigering) of his request on 8 May 2004. He also applied to the Regional Court for a provisional measure. Both procedures are currently still pending. Under Article 15 § 1 of the Aliens Act 1965 (vreemdelingenwet, hereinafter “the Act”), which was in force until 1 April 2001, aliens coming from a country where they have a well-founded reason to fear persecution on account of their religious or political convictions, or of belonging to a particular race or a particular social group, could be admitted as refugees. The expression “refugee” in this provision was construed to have the same meaning as in Article 1 of the Geneva Convention (decision of the Judicial Division of Council of State of 16 October 1980, Rechtspraak Vreemdelingenrecht [Immigration Law Reports] 1981, no. 1). On 1 April 2001, the Aliens Act 2000 entered into force. On the basis of Article 29 of the new Aliens Act, an alien may be eligible for a residence permit for the purposes of asylum if, inter alia, – he or she is a refugee within the meaning of the Geneva Convention, or – he or she has established well-founded reasons to assume that he/she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin. Requests which, after a first intake interview with the applicant, are judged to be inadmissible and/or manifestly ill-founded, may be dealt with in an accelerated procedure if they do not require a time-consuming investigation, meaning that they can be processed with all due care within 48 working hours. This fast-track procedure was introduced following a huge rise in the number of asylum applications that began in 1993. Article 4:6 of the General Administrative Law Act (Algemene Wet Bestuursrecht) provides that an applicant must adduce newly emerged facts or altered circumstances (nieuw gebleken feiten of veranderde omstandigheden) if a new request is filed following a decision in which the original request is, either totally or partially, rejected. When no such facts or altered circumstances have been adduced, the administrative authority may reject the new request with reference to the decision on the original request. Article 4:6 thus embodies the ne bis in idem principle for the administrative law. Nevertheless, an exception has been made in this particular area of the law, in that an alien may adduce exceptional facts and circumstances relating to him or her personally, on the basis of which the new request may be assessed outside the framework of Article 4:6. In the case of a repeat asylum application which also invokes the risk of treatment contrary to Article 3 of the Convention, an assessment by the court outside the framework of Article 4:6 is therefore possible. The Administrative Jurisdiction Division of the Council of State has on one occasion quashed the dismissal of a repeat application for a residence permit for the purposes of asylum despite the absence of new facts or altered circumstances (judgment of 24 April 2003, no. 220300506/1, Nieuwsbrief Asiel- en Vluchtelingenrecht [Newsletter on Asylum and Refugeelaw] 2003/160). It did so on the basis of the exceptional circumstance that there was no dispute between the parties, that on his return to his country of origin, the alien would run a real risk of being subjected to treatment or punishment proscribed by Article 3 of the Convention. During the initial asylum procedure, an alien is entitled to reception and other facilities provided by the State. However, entitlements do not exist if the application has been refused in the accelerated procedure. Pursuant to Article 10 of the Aliens Act 2000, an alien whose stay in the Netherlands is not lawful is not entitled to reception facilities. This provision applies to asylum seekers whose applications have been unsuccessful. Also, a second or further application for asylum does not confer a new entitlement to reception facilities. An exception to that basic principle can nevertheless be made if, inter alia, the asylum seeker finds him or herself in extremely compelling humanitarian circumstances (zeer schrijnende humanitaire omstandigheden, Chapter C5/20.4 of the Aliens Circular 2000). The question whether such circumstances exist is always considered after it has been ascertained that the second or further application for asylum will not be processed in the accelerated procedure. It may also be considered if a person, who has submitted a second or further application, requests reception facilities due to extremely compelling humanitarian circumstances. The COA decides whether or not reception facilities will be provided. Appeal lies against a decision to refuse reception, but also against a failure to decide (or to decide within a reasonable time) on a request for reception facilities. The lodging of an appeal does not suspend the denial of reception facilities, but a provisional measure may be requested to the effect that such facilities are made available pending the appeal proceedings. In a decision of 28 April 2004 (nr. AWB 04/4053 COA), the provisional-measures judge of the Regional Court of The Hague, sitting in Alkmaar, noted that the legislator had omitted to regulate whether or not an entitlement to reception facilities existed during the period for which an interim measure pursuant to Rule 39 of the Rules of Court was in place. The judge considered that, as a result of the application of Rule 39, the petitioner could not be said to be under an obligation to leave the country and his stay in the Netherlands was, therefore, lawful. In addition, the denial of reception facilities – which was aimed at encouraging a departure from the Netherlands – might detract from the effectiveness of the interim measure. In these circumstances, the judge perceived cause to grant a provisional measure to the effect that the COA should provide the petitioner with reception facilities pending the proceedings on his appeal against the COA’s refusal of such facilities. In different proceedings, the Administrative Jurisdiction Division of the Council of State held on 25 May 2004 that, as long as an interim measure pursuant to Rule 39 of the Rules of Court is in place, the stay in the Netherlands of the person concerned is lawful (nr. 200400863/1). Policy is based on official country reports (ambtsberichten), periodically drawn up by the Netherlands’ Ministry of Foreign Affairs. The country report on Iran of 21 December 1999 described how student demonstrations followed parliamentary discussions on a bill relating to the press and the closure of a newspaper on 7 July 1999, which got out of hand when riot police, security forces and units of the fundamentalist Ansare Hezbollah raided the campus of the University of Teheran and used force against the students, resulting in a number of deaths and hundreds of injuries. The violent attack on the students led to mass street protests in several Iranian cities, where demonstrations for greater openness and freedom were held over a number of days. These led to violent confrontations with the police, security services and groups supporting conservative forces. President Khatami finally banned all demonstrations. It appeared that 1,500 students were arrested. At the time of the country report, 200 were still thought to be in detention. The four “instigators” of the protests had allegedly been condemned to death, although the Iranian Government neither confirmed nor denied such reports. Prison terms varying from a few months to thirteen years (for one of the “instigators”) were imposed. The country report concluded that the human rights situation in Iran remained a source of concern, despite a few positive developments. Notably those groups or individuals perceived in Iran as a threat or potential threat to a society based on Islamic values and standards were at risk of becoming victims of human rights violations. The policy formulated on the basis of this country report meant that inter alia the following persons were eligible for consideration as possible refugees: – persons viewed, whether individually or as a member of a particular group, as a threat, or a potential threat, to a society based on Islamic values and standards; and – intellectuals, and in particular writers, journalists or publishers, who were viewed as a threat, or a potential threat, to society on the basis of their publications or other utterances in Iran. According to the country report of 30 August 2000, students in Iran were relatively quiet in the period leading up to the commemoration on 8 July 2000 of the riots of July 1999. However, a demonstration on 8 July 2000 that was intended to be peaceful got completely out of hand. The police intervened when the marchers began to shout slogans, students were arrested and fights broke out. Many participants in the demonstration at the University of Teheran were in fact ordinary people, rather than students. On 11 February 2000, Ayatollah Khamenei announced an amnesty for 10,000 people who had been involved in the riots of July 1999. The death penalty was imposed on one of the participants in the student disturbances but not carried out, the sentence being commuted to 15 years’ imprisonment. The three “instigators” of the student unrest of July 1999, who had been arrested on 26 July 1999, and on 1 March 2000 sentenced to long terms of imprisonment, were acquitted on appeal in mid-July 2000. The country report of 24 August 2001 showed that the human rights situation in Iran had deteriorated in the second half of 2000 and the first few months of 2001. The persecution of reformist intellectuals continued unabated. Nevertheless, in July 2001 it was reported in the press that the speaker of the Iranian parliament had requested Ayatollah Khamenei to grant an amnesty to the last 17 students still in prison because of their activities during the student revolt. Only ten students from this group – the ones who had received the heaviest sentences – were still in prison at the time of the country report. They were primarily members and sympathisers of a student union that was viewed with suspicion by the regime. The most recent country report, that of 10 February 2003, states that, as far as could be ascertained, six of the students imprisoned for taking part in the riots of July 1999 were still in prison, four students having been released in 2002. In the light of the most recent developments in Iran, as described in the country reports, Netherlands policy on admitting Iranian nationals has remained largely unchanged. Every asylum seeker from Iran must still demonstrate that the personal facts and circumstances of his or her case – viewed objectively – justify a fear of persecution as defined in refugee law or might lead to the conclusion that he or she would be subjected to treatment contrary to Article 3 of the Convention if returned. Furthermore, the mere fact of a person being a student is no reason to fear persecution by the Iranian authorities. In order to be eligible for a residence permit, students who have taken part in demonstrations or riots, or who occupy important positions within the student movement, have to establish that, because of that fact, they personally are viewed with suspicion by the authorities. Moreover, not every form of suspicion immediately leads to the conclusion that there can be said to be persecution within the meaning of refugee law. On 25 February 2004 the United States Department of State released the 2003 Country Report on Human Rights Practices in Iran. It stated inter alia: “The Government’s poor human rights record worsened, and it continued to commit numerous, serious abuses. ... Continuing serious abuses included: summary executions; disappearances; torture and other degrading treatment, reportedly including severe punishments such as beheading and flogging; poor prison conditions; arbitrary arrest and detention; lack of habeas corpus or access to counsel and prolonged and incommunicado detention. Citizens often did not receive due process or fair trials. The Government infringed on citizens’ privacy rights, and restricted freedom of speech, press, assembly, association and religion. ... During a wave of student protests in June, vigilantes beat many protestors, and police arrested approximately 4,000 persons (both protestors and vigilantes), according to Government figures shortly after the protests. The Government banned demonstrations planned for July 9 to commemorate the killing of several students by security forces in demonstrations held in 1999 and arrested more student activists at that time.” In its Annual Report 2004, covering events from January to December 2003, Amnesty International noted with respect to Iran inter alia: “Scores of political prisoners, including prisoners of conscience, continued to serve sentences imposed in previous years following unfair trials. Scores more were arrested in 2003, often arbitrarily and many following student demonstrations. ... The development and fulfilment of human rights in Iran were adversely affected by the political stalemate between supporters and opponents of reform. ... Students convicted and imprisoned after student demonstrations in 1999 were reported to have been ill-treated in custody. In several cases, they faced new charges, including some relating to defamation and insult, reportedly based on statements made in prison or given to the media while on temporary leave from prison.” | 0 |
dev | 001-58990 | ENG | ITA | CHAMBER | 2,000 | CASE OF VACCARO v. ITALY | 4 | Violation of Art. 5-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award | Christos Rozakis | 8. The applicant was detained on 30 September 1993 further to an order issued on 24 September 1993 by the preliminary investigations judge ("giudice per le indagini preliminari") attached to the Florence District Court. The applicant was accused of belonging to a Mafia type association, drug-trafficking, unlawful possession of arms and forgery. The accusation was based on the statements of a certain Mr M., a pentito (a mafioso who had decided to co-operate with the authorities). 9. In the reasons for the order of 24 September 1993, the preliminary investigations judge found that M.'s statements should be considered credible and to have been made voluntarily. They could therefore constitute strong evidence of guilt ("gravi indizi di colpevolezza"), which is a prerequisite under Italian law for remanding an accused in custody. The judge also considered that these statements were corroborated by the results of criminal investigations concerning similar crimes, as well as by statements made by other pentiti. Furthermore, pursuant to section 275 of the Code of Criminal Procedure (“Codice di Procedura Penale”, hereinafter called the "CPP"), the nature and the seriousness of the offences raised the rebuttable presumption that the conditions for remand in custody laid down in section 274 (risk of tampering with evidence, of absconding and of re-offending) applied. 10. On 24 March 1995, the preliminary investigations judge committed the applicant and twenty-six other persons for trial before the Florence District Court. 11. In a judgment of 8 February 1996, the Florence District Court, acting in accordance with section 23 of the CPP (which provided that the judge who found himself incompetent ratione loci should forward the case-file to the competent judge), declared that the case was outside its territorial jurisdiction and ordered that the case-file be transmitted to the Grosseto District Court. 12. In an order of 25 March 1996, the Grosseto District Court confirmed the applicant’s detention on remand. 13. In an order of 28 March 1996, the President of the Grosseto District Court committed the accused for trial and scheduled the date of the first hearing for 7 May 1996. 14. In an order of 25 July 1996, the Grosseto District Court granted the prosecution's request to suspend the maximum periods of detention on remand for the duration of the trial and deliberations at first instance, pursuant to section 304(2) CPP. It considered that, given the fact that more than three hundred witnesses had to be examined and a considerable volume of documents, including a number of experts' opinions, had to be produced, the proceedings could be regarded as being particularly complex. In the reasons for that order, the District Court specified that, according to the Court of Cassation's well-established case-law, the suspension should cover the whole duration of the trial and not only the days of the actual hearings. 15. On 21 November 1996, the applicant lodged an application for immediate release with the District Court. He observed that the interpretation followed in the order of 25 July 1996 - according to which the suspension of the maximum periods of detention on remand should cover periods of inactivity between hearings - was inconsistent with the relevant provisions of the CPP, with the overall purpose of Article 5 § 3 of the Convention and with Articles 3, 13 § 5 and 24 of the Italian Constitution. 16. In an order of 3 December 1996, the Grosseto District Court, observing that the maximum periods of detention on remand had not been overstepped, dismissed the applicant's claim. 17. On 18 December 1996, the applicant appealed against that order. The Florence District Court, sitting as the authority with jurisdiction to decide on measures affecting the liberty of persons ("tribunale della libertà e del riesame"), dismissed the applicant's appeal in an order of 15 January 1997. 18. On 7 February 1997, the applicant appealed on points of law. 19. In a decision of 17 June 1997, the Court of Cassation, considering that the lower court had not duly indicated the specific and concrete grounds for the decision to suspend the maximum periods of detention on remand, annulled the impugned order and referred the case back to the Florence District Court. 20. In a decision of 27 October 1997, filed with the registry on 7 November 1997, the Florence District Court confirmed the Grosseto District Court's order of 3 December 1996 and declared that the doubts raised by the applicant as to the constitutionality of the relevant provisions of the CPP were manifestly ill-founded. The District Court observed that the length of the proceedings was mainly due to the complexity of the case, to the number of parties and witnesses as well as to the circumstances preventing the attendance of the accused's lawyers and of the District Court's judges. Furthermore, no significant periods of inactivity seemed to have occurred during the trial, given the fact that at least fifty hearings had taken place from 25 June until December 1996. However, the court noted that some hearings had been adjourned for reasons which were not imputable to the applicant or to the requirements of the fair administration of justice in criminal cases, such as lawyers' strikes, the Public Prosecutor’s illness and a lack of a proper hearing-room. It consequently considered that a global delay of thirty-one days should be deducted from the maximum period of detention on remand, which had not been overstepped, even taking into account such deduction. 21. On 24 November 1997, the applicant appealed on points of law against that decision. In a decision of 18 February 1998, filed with the registry on 19 March 1998, the Court of Cassation declared the applicant's appeal inadmissible as manifestly ill-founded. 22. In the meanwhile, one hundred and thirty-eight trial hearings had taken place before the Grosseto District Court. About three hundreds witnesses had been heard and a number of expert opinions were examined. 23. During the trial, the lawyers of the accused had contested the lawfulness of the order for committal for trial. They had noted that in a judgment of 15 March 1996, the Constitutional Court had declared that section 23 of the CPP was unconstitutional and that the incompetent judge should forward the case-file to the Public Prosecutor’s Office (and not to the competent judge, as previously provided). Given the fact that in its judgment of 8 February 1996 the Florence District Court had ordered that the case-file be transmitted to the Grosseto District Court, the lawyers had requested that the whole proceedings be declared null and void. 24. On 22 July 1997, the applicant’s lawyer had declared that due to family reasons, he was unable to take part in the hearings scheduled in August and had requested to adjourn the case until 1 September 1997. 25. In a judgment of 16 December 1997, the Grosseto District Court had sentenced the applicant to eleven years and six months' imprisonment for drug-trafficking and had acquitted him in respect of the remainder of the charges. The court had also ordered that the applicant's case-file be transmitted to the Public Prosecutor's Office in order to evaluate the desirability of instituting fresh proceedings against him for belonging to a Mafia type association and drug-trafficking, crimes which appeared to have been committed in Florence. 26. As concerned the question of the lawfulness of the order for committal for trial, the District Court had observed that the decision of the Florence District Court had been adopted on 8 February 1996, while the invoked judgment of the Constitutional Court had been published only on 20 March 1996. Therefore, in accordance with the principle tempus regit actum, the finding of the unconstitutionality of section 23 of the CPP could not retroactively affect the lawfulness of the Florence District Court’s judgment. 27. The applicant lodged an appeal with the Florence Court of Appeal. 28. In a judgment of 17 November 1998, filed with the registry on 27 November 1998, the Court of Appeal declared that the committal for trial and the first-instance judgment were null and void and ordered that the case-file be transmitted to the Florence Public Prosecutor's Office. It observed, in particular, that the finding that a provision was unconstitutional should in principle apply to all pending proceedings. Therefore, after the Constitutional Court’s judgment of 15 March 1996, the District Court had no power to commit the accused for trial and its President’s order of 28 March 1996 as well as all the acts done before it were invalid. 29. On 3 May 1999, the applicant was released. | 1 |
dev | 001-112831 | ENG | ESP | ADMISSIBILITY | 2,008 | MONEDERO ANGORA v. SPAIN | 1 | Inadmissible | null | The applicant, Mr José Monedero Angora, is a Spanish national who was born in 1960 and lives in Alcazar de San Juan. He was represented before the Court by Mr M. Cobo del Rosal, a lawyer practising in Madrid. The facts of the case, as submitted by the applicant, may be summarised as follows. On 18 June 2004 the applicant was arrested in Spain and remanded in custody in execution of a European arrest warrant issued by the French judicial authorities following a judgment by the Pau tribunal de grande instance delivered in his absence on 12 January 1993. In that judgment, the court had sentenced the applicant to five years’ imprisonment for a drug-related offence. On 25 June 2004 central examining magistrate no. 4 referred the case to the Audiencia Nacional for a decision on the merits. However, he considered that the statutory time-limit for surrendering the applicant to the French authorities had not been complied with and that the application to have the applicant surrendered to the French authorities could therefore be rejected, the applicant being opposed to it. On 15 July 2004 the applicant submitted an application for bail, arguing that there was nothing to indicate that he had committed the offence in respect of which the French courts had delivered their judgment in 1993. The Audiencia Nacional dismissed his application by a decision of 20 July 2004. However, on 27 July 2004 the same court ordered the applicant’s release. At the same time, it requested the French authorities to provide the fingerprints of the person who had been detained in France, and asked Interpol for the fingerprints of the person who was the subject of the extradition request. In a decision of 22 December 2004, the Audiencia Nacional agreed to surrender the applicant to the French authorities. It noted that the procedure complied with the conditions laid down in Law 3/2003 of 14 March 2003, which had been enacted in Spain pursuant to the obligations on the State under the framework decision on the European arrest warrant and the surrender procedures between member States adopted by the Council of the European Union on 13 June 2002 (OJEC L 190/1 of 18 July 2002). The decision made the surrender of the applicant to the French authorities conditional on any sentence that might be imposed upon him being executed in Spain, as the judgment convicting him had been delivered in his absence and was therefore subject to appeal. On 30 December 2004 the applicant submitted an application for interpretation (aclaración) of that decision. The application concerned, firstly, whether he had been identified and by what means and, secondly, the application to his case of Law 4/1985 of 21 March 1985 on passive extradition and not of the framework decision of the Council of the European Union of 13 June 2002, given that the facts at the origin of the criminal proceedings in France had taken place between February 1991 and January 1992. On 31 January 2005 the Audiencia Nacional dismissed the application, considering that the contested decision did not fall into the category of cases subject to an application for interpretation under section 267 of the Judicature Act. Owing to an error, the applicant was not informed that his application had been dismissed. On the same day, the Audiencia Nacional ordered that the applicant be detained for surrender to the French authorities. An appeal (recurso de súplica) lodged against that decision was dismissed on 18 February 2005, as the measure had been adopted for the purposes of surrendering the applicant to the French authorities but the applicant could still serve the final sentence in Spain. Relying on Article 24 (right to a fair trial) in conjunction with Articles 17 (right to freedom) and 25 (principle of legality) of the Constitution, the applicant lodged an amparo appeal (action for infringement of fundamental rights) with the Constitutional Court against the decisions of 22 December 2004 and 31 January and 18 February 2005. The Constitutional Court dismissed the appeal in a judgment delivered on 18 July 2005 and served on 27 July 2005. It dismissed the complaints relating to the decision of 22 December 2004 as they were out of time, and considered that the applicant had not been adversely affected by the failure to notify him of the rejection of his application for interpretation of the decision delivered on 31 January 2005 because that application had clearly been futile. With regard to the decisions of 31 January and 18 February 2005 relating to the detention of the applicant for the purposes of surrendering him to the French authorities, the Constitutional Court noted that the amparo appeal did not contain any complaint about those decisions; the applicant had confined himself to arguing, firstly, that the Audiencia Nacional should have applied the extradition law, which he considered to be of greater relevance to his case, and not Law 3/2003 on the European arrest warrant and, secondly, that the French criminal proceedings resulting in a European arrest warrant being issued against him had related to a statute-barred offence. In that connection, the Constitutional Court observed that it was not its task to reconstruct the reasons given by applicants for lodging an appeal. The applicant then requested that the decision of 31 January 2005 be served on him, which was done on 7 September 2005. On 14 September 2005 he lodged a further amparo appeal with the Constitutional Court. In a decision of 29 September 2005, the court dismissed the appeal, holding that an application for interpretation which artificially extended the proceedings was inadmissible. “1. The courts cannot amend decisions once they have been signed; however they can interpret obscure concepts and correct clerical errors ...” “... The purpose of this Law is to fulfil the obligations which the framework decision creates for the member States, and which consist of replacing extradition procedures with a new procedure for surrender [to the authorities of the applicant State] of persons who are suspected of having committed an offence or who try to escape justice after being convicted by a final decision. ... The application of the principle of mutual recognition requires that, once the competent authority has received the European warrant with a view to its execution, this takes place practically automatically, without the judicial authority that executes the warrant having to examine the application again to verify its conformity with domestic law. Therefore, the reasons enabling the judicial authority to refuse execution are laid down by law, and the nature [of the warrant] allows that authority to make an objective assessment. Thus the usual reasons for refusal in extradition proceedings are eliminated, such as those relating to the non-surrender of nationals or to the fact that certain offences are considered to be political offences. The extremely innovative nature of this procedure is even clearer if we consider that it applies to the long list of categories of offences set out in the framework decision, for which the existence of double criminality can no longer be verified. Accordingly, when the judicial authority receives a European arrest warrant for one of the types of offence listed, and provided that the corresponding sentence exceeds a given threshold, it must proceed with execution, whether or not its criminal legislation provides for such an offence. ...” | 0 |
dev | 001-112280 | ENG | DEU | CHAMBER | 2,012 | CASE OF HUMMER v. GERMANY | 3 | Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | André Potocki;Angelika Nußberger;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger | 6. The applicant was born in 1978 and lives in Bayreuth. At the time of the events in issue in September 2003 he was living in Bingen, Rhineland-Palatinate, where he was studying mechanical engineering. 7. On 26 November 2003 the applicant’s mother, his brother and his sister (“the witnesses”) informed the police about an incident that had occurred during the night of 2-3 September 2003 at the applicant’s parents’ house in Wilhemsthal, Bavaria. The witnesses testified that the applicant, who cannot remember the incident, had strangled his sister and had attacked his brother with an axe before being overpowered by his parents. The applicant’s father did not press criminal charges and did not testify against the applicant. 8. The Coburg Public Prosecutor opened a criminal investigation against the applicant for attempted murder. On 8 December 2003 the witnesses repeated their statements before the investigating judge (Ermittlungsrichter) of the Kronach District Court in the presence of a police officer. The applicant was not informed of the hearing before the investigating judge. No counsel was appointed for him. 9. On 16 December 2003 the Kronach District Court issued a warrant for the applicant’s arrest. The applicant was arrested on 19 December 2003 and remanded in custody. By a decision of the Coburg Regional Court of 6 October 2004 the applicant was transferred to a psychiatric hospital pending trial. 10. On 28 February 2005 the Coburg Regional Court ordered that the applicant be placed in a psychiatric hospital pursuant to section 63 of the Criminal Code (see “Relevant domestic law and practice” below). The Regional Court found it established that on the evening of 2 September 2003 the applicant travelled from Bingen to his parents’ house in Wilhelmsthal. He entered the house with his own key without notifying his parents or his brother and sister of his arrival. During the night he went to his sister’s bedroom, strangled her and then attacked his brother with an axe causing him injuries on his head, hands, arms and legs. Once the applicant had been overpowered by his parents, the entire family gathered in the kitchen. The sister then drove the applicant’s heavily bleeding brother to hospital where two of his wounds were sutured. The applicant stayed with his family in his parent’s house until end of September 2003. During his stay he was provided with medical care by a local doctor who diagnosed him with having suffered an epileptic seizure. The applicant then returned to Bingen but made another unannounced visit to his parent’s house on 21 November 2003. Following this visit the applicant’s mother, brother and sister who feared a further attack by the applicant decided to inform the police about the incident in the night of 2-3 September 2003 and pressed criminal charges against the applicant on 26 November 2003 (see above § 7). 11. The Regional Court qualified the acts as two counts of assault occasioning grievous bodily harm (gefährliche Körperverletzung). It further held on the basis of expert opinions that the applicant had acted either in a state of diminished awareness of his actions due to epilepsy (epileptischer Dämmerzustand) or during a bout of paranoid schizophrenia and could therefore not be held responsible for the acts, pursuant to section 20 of the Criminal Code (see “Relevant domestic law and practice” below). 12. As regards the finding of facts, the Regional Court noted that the applicant did not have any recollection of the events in the night of 23 September 2003 and that the only available direct witnesses, namely the applicant’s mother, brother and sister, had availed themselves of their right not to testify against the applicant in court pursuant to section 52 of the Code of Criminal Procedure (see “Relevant domestic law and practice” below). The applicant’s father had refrained from pressing criminal charges and had not participated in the proceedings (see above § 7). The facts could nevertheless be established on the basis of the testimony of the investigating judge, who had heard the witnesses on 8 December 2003 and had given an account of their pre-trial statements in court. The Regional Court held that it was not prevented from hearing the investigating judge as a witness and taking his testimony about the witnesses’ pre-trial statements into account. 13. The Regional Court noted that the Public Prosecutor had failed to request the appointment of counsel for the applicant prior to the hearing of the witnesses by the investigating judge in accordance with section 140 (1) no. 2 read in conjunction with section 141 (3) of the Code of Criminal Procedure as construed by the Federal Court of Justice in the light of the requirements of Article 6 § 3 (d) of the Convention. Furthermore, the unrepresented applicant had not been informed about the hearing before the investigating judge pursuant to section 168(c) (3) and (5) of the Code of Criminal Procedure and there would have been no grounds to exclude a potential counsel from the hearing (see “Relevant domestic law and practice” below). 14. The Regional Court reiterated that under the Federal Court of Justice’s case-law the failure to appoint counsel did not compel the exclusion of the investigating judge’s testimony. However, the Regional Court was bound to proceed to a particularly critical assessment of the investigating judge’s testimony in view of the fact that neither the accused nor counsel had been able to directly examine the witnesses. The finding of facts could only be based on the investigating judge’s testimony if the latter was corroborated by other significant considerations. 15. The Regional Court took several items of evidence as corroborating the investigating judge’s testimony into account. Firstly, it emphasised that for its establishment of facts it not only disposed of the testimony by the investigating judge but also of three consistent witness statements that gave a coherent account of the events in issue. According to the testimony given by the investigating judge, there was nothing to establish that the witnesses had not told the truth or wanted to incriminate the applicant; the witnesses had testified because they had been concerned about the applicant’s health and had feared another attack by him. Furthermore, the police superintendent who had registered the witnesses’ criminal charge on 26 November 2011 had testified that on this occasion he had been spontaneously told by the witnesses - prior to their subsequent questioning - that the applicant had attacked members of his family with an axe. The Regional Court pointed out that as opposed to the witnesses’ subsequent testimonies to the police, these spontaneous statements did not have to be excluded from the trial pursuant to section 252 of the Code of Criminal Procedure but constituted admissible evidence. In addition, another policeman had testified that the applicant’s mother had called him spontaneously on 3 December 2003 and had asked what further action would be taken as a result of the criminal complaint with a view to preventing a renewed unannounced visit and attack by the applicant. In the Regional Court’s view these spontaneous statements supported the witnesses’ description of the events in the night of 2-3 September 2003. Moreover, the doctor who had treated the applicant’s brother’s cuts in hospital on 3 September 2003 had testified that he had been suspicious of the latter’s explanation for his injuries at that time, namely that he had fallen through a glass pane. The Regional Court further noted that the applicant’s brother had later handed over an axe to the police on his own initiative, and that the police officer who had received the implement had testified that the brother had confirmed that the axe was the corpus delicti. Finally, the applicant himself had testified that he could remember seeing his brother covered in blood on the morning of 3 September 2003 when the family had gathered in the kitchen and that his family members had told him that he had attacked his brother and sister during the night. According to the applicant, he himself had proposed that same morning to contact the police but his family had refused to do so. He further remembered that his sister had taken his brother to hospital. 16. The applicant lodged an appeal on points of law in which he complained that the investigating judge’s testimony ought to have been excluded from the trial. 17. The Coburg Public Prosecutor lodged an appeal on points of law in which he argued that the attack on the witnesses should have been classified as two counts of attempted manslaughter as well as assault occasioning grievous bodily harm. 18. On 25 May 2005 the Federal Public Prosecutor moved that the applicant’s appeal on points of law be dismissed on the grounds that the Regional Court had, in line with the reasoning in the related Federal Court of Justice’s leading judgment, established that the investigating judge’s testimony had been corroborated by other important considerations and that the Regional Court’s holding was free of error. 19. On 24 August 2005 the Federal Court of Justice dismissed the applicant’s appeal on points of law as ill-founded. On 31 August 2005 the Federal Court of Justice ordered the State to pay the costs of the Public Prosecutor’s Appeal on points of law which had been withdrawn. These decisions were served on the applicant on 9 and 16 September 2005 respectively. 20. On 1 April 2006 the applicant lodged his first application with this Court (no. 14678/06) which was declared inadmissible for non-exhaustion of domestic remedies by a Committee of three judges on 5 September 2006. 21. On 16 October 2006 the applicant applied for the reinstatement of the proceedings in regard to his compliance with the one-month period to lodge a constitutional complaint and submitted his constitutional complaint to the Federal Constitutional Court. 22. On 20 March 2007 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint for examination and noted that there was no need to decide the applicant’s application for the reinstatement of the proceedings (no. 2 BvR 225/07). 23. The Regional Court may order an accused to be placed in a psychiatric hospital if he has committed an unlawful act in a state that excludes a finding of guilt, and if his act reveals that as a result of his condition, future serious unlawful acts can be expected of him and that he therefore presents a danger to the general public (section 63 of the Criminal Code). An accused acts without guilt if he is incapable of appreciating the wrongfulness of his act or of acting in accordance with such appreciation due to a pathological emotional disorder, profound consciousness disorder, mental defect or any other serious emotional abnormality (section 20 of the Criminal Code). 24. Pursuant to section 168(c) (2) of the Code of Criminal Procedure, the prosecutor, the accused and defence counsel shall be permitted to be present during the judicial examination of a witness or expert prior to the opening of the main proceedings. The judge may exclude an accused from being present at the hearing if his presence would endanger the purpose of the investigation, in particular if it is to be feared that a witness will not tell the truth in the presence of the accused (section 168(c) (3) of the Code of Criminal Procedure). The persons entitled to be present shall be given prior notice of the dates set down for the hearings. The notification shall be dispensed with if it would endanger the success of the investigation (section 168(c) (5) of the Code of Criminal Procedure). 25. Defence counsel may be appointed during preliminary proceedings; the public prosecution office shall request such an appointment if in its opinion the assistance of defence counsel in the main proceedings will be mandatory (section 141 (3) of the Code of Criminal Procedure). The assistance of defence counsel is mandatory if, inter alia, the main hearing is held at first instance before the Regional Court, the accused is charged with a serious criminal offence, or the proceedings are conducted with a view to placement in a psychiatric hospital (section 140 (1) nos. 1, 2 and 7 of the Code of Criminal Procedure). Counsel is to be appointed when an indicted accused without defence counsel has been requested to reply to the bill of indictment (section 141 (1) of the Code of Criminal Procedure). 26. In a leading judgment of 25 July 2000 (published in the official reports, BGHSt, volume 46, p. 96 et seq.) the Federal Court of Justice held that section 141 (3) of the Code of Criminal Procedure required, in view of Article 6 § 3 (d) of the Convention, the appointment of counsel for an unrepresented accused if the key witness for the prosecution was to testify before an investigating judge and the accused was excluded from this hearing. The failure to appoint counsel prior to the hearing before the investigating judge did not exclude the latter’s testimony about the witnesses’ statements as long as the proceedings, seen as a whole, remained fair. To this end the investigating judge’s testimony had to be carefully assessed. A conviction could only be based on the investigating judge’s testimony if this testimony was corroborated by other important considerations. 27. Parents, brothers and sisters need not testify against their accused son or daughter, brother or sister (section 52 (1) no. 3 of the Code of Criminal Procedure); if such a witness makes use of his or her right not to testify at the main hearing, prior witness statements shall not be read out (section 252 of the Code of Criminal Procedure). According to the Federal Court of Justice’s case-law, section 252 of the Code of Criminal Procedure is an exclusionary rule that applies to all statements made prior to a main hearing by witnesses who avail themselves of their right not to testify at the main hearing, with the exceptions of spontaneous statements made by the witness before or outside his or her formal testimony as well as testimonies before a judge after the witness has been advised of his or her right not to testify. | 1 |
dev | 001-115323 | ENG | AUT | ADMISSIBILITY | 2,012 | JENIK v. AUSTRIA AND OTHER APPLICATIONS | 4 | Inadmissible | Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen | 1. The applicant Mr Wilhelm Jenik, is an Austrian national who was born in 1955 and lives in Vienna. He is represented by Mr H. Pochieser, a lawyer practising in Vienna. The Austrian Government (“the Government”) are represented by their Agent, Ambassador Helmut Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicant is unemployed and has been receiving welfare benefits for himself and his three children for approximately ten years. Under the Vienna Welfare Act (Wiener Sozialhilfegesetz), he is entitled to monthly payments and, in addition, to certain extra allowances and non-cash benefits as specified by law and upon specific request. 4. On 4 May 2004 the applicant filed a request with the Vienna Municipal Authority, seeking temporary pecuniary assistance (Geldaushilfe) in addition to the benefits already received, without specifying an amount. By an oral decision of the same day the Vienna Municipal Authority granted him 915.85 euros (EUR). 5. On 8 June 2004 the Vienna Municipal Authority, at the applicant’s request, provided him with a written copy of the above oral decision. The applicant, who was not satisfied with the amount granted, appealed on 29 June 2004. 6. On 15 November 2004 the Vienna Regional Government dismissed the applicant’s appeal and lowered the amount to EUR 901.20. 7. On 3 October 2005 the applicant filed a complaint against this decision with the Administrative Court and asked for an oral hearing. He argued that the Vienna Regional Government’s decision had been unlawful, in that the Regional Government had not been competent to take the impugned decision, its decision was not sufficiently reasoned and it had not applied the provisions of the Vienna Social Welfare Act correctly. The authorities should have granted him a rent allowance equivalent to the full amount of rent paid by him, because rents were high in Vienna and they had not objected to the applicant moving to a bigger apartment with his children. 8. On 15 December 2006 the Administrative Court dismissed the applicant’s complaint. It found that the Vienna Regional Government had been competent to take the impugned decision and had decided properly on the applicant’ 9. In so far as the applicant had complained that he should have been entitled to full reimbursement of the rent paid by him, the Administrative Court found that, in accordance with the law, a rent allowance was linked to the specific size of an apartment, with a fixed maximum amount for certain sizes. Only in very special circumstances could a higher amount be granted. The applicant had, however, failed throughout the proceedings to give any specific reasons, corroborated by evidence, as to why he should receive a higher rent allowance. The mere indication that rents in Vienna were high was not a sufficient argument within the meaning of the Social Welfare Act. With regard to the applicant’s request for an oral hearing, the Administrative Court found that the present case concerned only questions of law which, in line with the Court’s case-law, did not necessitate a hearing, and accordingly dismissed the request. 10. On 15 June 2004 the applicant filed a request with the Vienna Municipal Authority, seeking an additional allowance from June 2004 onwards, without specifying an amount. 11. On 23 July 2004 the Vienna Municipal Authority granted his request, awarding him EUR 1,422.80. On 29 July 2004 the applicant, who was not satisfied with the amount granted, appealed. 12. On 23 November 2004 the Vienna Regional Government granted the applicant’s appeal and raised the amount to EUR 2,115.30. 13. On 3 October 2005 the applicant filed a complaint with the Administrative Court against this decision and requested an oral hearing. He submitted the same arguments as in his complaint to the Administrative Court concerning his request of 4 May 2004. 14. On 15 December 2006 the Administrative Court dismissed the applicant’s complaint and his request for an oral hearing for the same reasons as in its decision of the same day relating to the applicant’s request of 4 May 2004. 15. On 30 June 1998 the applicant filed a request with the Vienna Municipal Authority seeking an additional allowance from May 1998 onwards, reimbursement of the costs incurred for the repair of his washing machine and the payment of several electricity, gas and rent bills; this was granted by several decisions of the Vienna Municipal Authority, including those of 6 July 1998, 27 August 1998 and 15 December 1998. 16. On 4 July 2001 the Vienna Regional Government rejected the applicant’s request to transfer jurisdiction to the superior authority, on the ground that the Vienna Municipal Authority and the Regional Government itself had already decided on the matter and had granted the requested benefits. 17. On 6 September 2001 the applicant filed a complaint against this decision with the Administrative Court, together with an application alleging a breach of the administrative authorities’ duty to decide; he also requested legal aid and asked the court to hold a public hearing. 18. On 2 May 2002 the Administrative Court ordered the applicant to provide further information about his complaint. The applicant complied on 18 June 2002. 19. On 25 July 2007 the Administrative Court dismissed the applicant’s complaint; this decision was served on his counsel on 21 August 2007. The Administrative Court listed in detail the decisions taken by the Municipal Authority and the Regional Government between 24 April 1998 and 27 August 1998 in response to the numerous requests lodged by the applicant during this period, from which the Regional Government had concluded that the applicant’s request of 30 June 1998 had been decided upon. They had, therefore, taken proper decisions, satisfying all the statutory requirements. In such a situation the applicant could not merely claim that one of his requests had not been decided upon, but had to substantiate his allegations by referring to details. Since he had not done so, the Regional Government had acted correctly in dismissing his request for transfer of jurisdiction. With regard to the applicant’s request for an oral hearing, the Administrative Court found that the present case only concerned questions of law which, in line with the Court’s case-law, did not necessitate the holding of a hearing and therefore dismissed the request. 20. On 8 February 2001 the applicant filed a request for additional allowances for cultural and education matters. 21. On 1 March 2001 the Vienna Municipal Authority dismissed the applicant’s request of 8 February 2001. 22. On 4 May 2001 the Vienna Regional Government dismissed his appeal against this decision. 23. On 20 June 2001 the applicant filed a complaint with the Administrative Court against the Regional Government’s decision and requested legal aid. 24. On 3 August 2007 the Administrative Court remitted the complaint to the applicant in order for procedural defects to be remedied. At the same time it dismissed the request for legal aid, finding that, in view of its caselaw, the complaint had no prospect of success. In view of the refusal of legal aid the applicant did not pursue the proceedings. 25. On 12 December 2000 the applicant filed a request with the Vienna Municipal Authority, seeking an additional allowance, amounting to EUR 2000 for heating and electricity. 26. On 24 January 2001 the Vienna Municipal Authority dismissed his request, and on 20 June 2001 the Vienna Regional Government dismissed his appeal. 27. Having been granted legal aid, the applicant filed a complaint with the Administrative Court against that decision on 17 June 2002. 28. On 27 September 2007 the Administrative Court dismissed the applicant’s complaint. 29. On 1 March 2001 the applicant filed a request for an additional allowance for heating and electricity, amounting to EUR 63.80. 30. On 8 March 2001 the Vienna Municipal Authority dismissed his request, and, on 12 September 2001, the Vienna Regional Government dismissed his appeal. 31. Having been granted legal aid, the applicant filed a complaint against this decision with the Administrative Court on 17 July 2002. 32. On 27 September 2007 the Administrative Court dismissed the applicant’s complaint. 33. On 2 February 2001 the applicant filed a request for an additional allowance for heating and electricity, amounting to EUR 65.40 per month. 34. On 1 March 2001 the Vienna Municipal Authority dismissed his request, and, on 19 September 2001, the Vienna Regional Government dismissed his appeal. 35. On 14 December 2001 the Constitutional Court dismissed the applicant’s request for legal aid, considering that, in view of its case-law, the complaint had no prospect of success. 36. On 7 June 2002, having been granted legal aid, the applicant filed a complaint with the Administrative Court against the Regional Government’s decision. 37. On 27 September 2007 the Administrative Court dismissed the complaint. That decision was served on the applicant’s counsel on 17 October 2007. 38. On 12 June 1997 the applicant filed a request with the Vienna Municipal Authority, seeking an additional allowance for the period from June until July 1997. 39. On 23 May 2001 the Vienna Regional Government granted the applicant’s request of 20 February 2001 to transfer jurisdiction to the superior authority on the ground of the Vienna Municipal Authority’s failure to decide; being competent to decide the matter itself, it dismissed the applicant’s request by a decision of the same day. 40. On 19 June 2002, having been granted legal aid, the applicant filed a complaint with the Administrative Court against this decision and asked the court to hold a public hearing. He argued that the authority had incorrectly applied the law and had not properly reasoned its decision, and that the facts of the case needed to be supplemented, since the calculation of his resources had taken into account alimony payments for his son W. from his former wife which he had not actually received. This point therefore needed to be further developed. 41. On 27 September 2007 the Administrative Court dismissed the applicant’s complaint without having held a hearing. The Administrative Court found that the authority had properly reasoned its decision and had applied correctly the relevant provisions of the Vienna Social Welfare Act. With regard to the applicant’s argument that the authority should not have taken account of alimony payments from his former wife for his son W., the Administrative Court found that, even if it accepted the applicant’s position, namely that he had not received payments to which he had been entitled and that they should not therefore be taken into account when assessing his income, that income was still above the statutory limit (Richtsatz), so that he was not entitled to an additional allowance. Lastly, referring to the Court’s case-law, the Administrative Court found that in the present case it had only to deal with questions of law which could adequately be resolved on the basis of the case file and the parties’ written observations, and therefore dismissed the request for a hearing. 42. On 20 February 2000 the applicant filed a request with the Vienna Municipal Authority, seeking an additional allowance for heating costs from October 1999 onwards. 43. On 8 February 2001 the Vienna Regional Government granted the applicant’s request of 7 September 2000 to transfer jurisdiction to the superior authority on account of the Vienna Municipal Authority’s failure to decide, and at the same time granted an additional allowance amounting to 3,438 Austrian shillings (ATS - EUR 250). 44. On 9 May 2001, having been granted legal aid, the applicant filed a complaint with the Administrative Court against that decision. On 27 September 2007 the Administrative Court dismissed the applicant’s complaint. That decision was served on the applicant’s counsel on 17 October 2007. 45. On 11 and 23 November 2004 the applicant filed requests for reimbursement of the expenses incurred in the purchase of a Christmas tree (EUR 35) and an Advent wreath (Adventskranz – EUR 7.90). 46. On 15 December 2004 the Vienna Municipal Authority dismissed these requests, finding that as this kind of expense was already covered by the monthly payment received by the applicant, additional grants could not be made. 47. On 17 February 2005 the Vienna Independent Administrative Panel dismissed the applicant’s appeal against this decision, but corrected the first instance’s decision to the effect that the applicant’s requests were rejected. It did not hold a hearing. 48. On 27 September 2005 the Constitutional Court dismissed the applicant’s request for legal aid of 5 October 2005, finding that, in view of its case-law on the matter, the complaint had no prospect of success. 49. On 5 August 2005 the Administrative Court granted the applicant legal aid. 50. On 21 October 2005 the applicant filed a complaint with the Administrative Court; on 15 November 2005 he filed a complaint with the Constitutional Court. 51. On 8 March 2006 the Constitutional Court declined to deal with the complaint, as did the Administrative Court on 2 July 2008. | 0 |
dev | 001-110529 | ENG | UKR | COMMITTEE | 2,012 | CASE OF BLINOVA v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | Angelika Nußberger;Ann Power-Forde | 4. The applicant was born in 1949 and lives in Izyum. 5. In May 1994 the applicant initiated a land dispute with her neighbours. 6. On 29 August 2005 the proceedings, which had taken place before the courts of three levels of jurisdiction, were completed by a final ruling of the Supreme Court allowing the applicant’s claim in part. 7. In the course of the proceedings, there was one remittal of the case from the appellate court to the first-instance court for fresh consideration. The courts also ordered seven forensic technical expert examinations. 8. There were several adjournments in the proceedings due to the parties’ failure to appear for hearings. | 1 |
dev | 001-98662 | ENG | RUS | CHAMBER | 2,010 | CASE OF DZHABRAILOVY v. RUSSIA | 4 | Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life) | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens | 6. The applicants are Mr Aslan (also known as Lukman) Dzhabrailov, who was born in 1979, Ms Umkusu Dzhabrailova, who was born in 1949 and Ms Larisa Dzhabrailova, who was born in 1977. They live in Grozny, Chechnya. The first applicant is the brother of Valid (also spelled as Volid and also known as Lecha) Dzhabrailov, who was born in 1973; the second applicant is his mother and the third applicant is his sister. 7. The facts of the case, as submitted by the parties, may be summarised as follows. 8. At the material time the applicants and Valid Dzhabrailov lived at 104 Sovetskaya Street in the settlement of Pervomayskiy, in the Grozny district, Chechnya. At about 7 a.m. on 16 February 2003 (in the submitted documents the date was also referred to as 15 February 2003) the applicants and Valid Dzhabrailov were at home, when a group of armed masked men in camouflage uniforms arrived at their gate. The men arrived in a white GAZ car (“Газель”), a blue VAZ-2121 car (“Нива”), a khaki-coloured military UAZ car (“таблетка”) and a UAZ car. The men broke into the house and dispersed into different rooms. The intruders, who spoke unaccented Russian, neither identified themselves nor produced any documents. The applicants thought that they were Russian servicemen. 9. The intruders woke up the second and third applicants, lined them up against a wall and threatened to shoot them if they moved. After that the servicemen went into the room where the first applicant and Valid Dzhabrailov were sleeping. They woke them up, forced the brothers to the floor, handcuffed them and blindfolded Valid Dzhabrailov with the hood of his sweater. Then they took Valid and Aslan Dzhabrailov's passports, beat them, dragged them outside and forced them to the ground. When the second applicant asked the intruders where they were taking her sons, the servicemen told her that they were taking them to a local department of the interior (“в отдел”) for an identity check. After that they forced Valid and Aslan Dzhabrailov, who were already bleeding, into the military UAZ car and drove away to an unknown destination. While travelling in the car, the servicemen beat and kicked the brothers. 10. Upon arrival at the point of destination, the servicemen took Valid Dzhabrailov and the first applicant out of the car, put plastic bags over their heads and bound the bags with adhesive tape. The brothers did not know where they had been taken, but they could hear the sound of military vehicles and helicopters. The first applicant thought that they had arrived at the main base of the Russian military forces in Khankala, Chechnya. 11. After that Valid and Aslan Dzhabrailov were forced to crawl on their hands and knees into a basement where they were thrown on to a cement floor. The brothers were cold and bleeding. Some time later the abductors came into the cell. Valid Dzhabrailov asked them why they had been abducted. In response one of the servicemen gave him several blows to the head and in the stomach with his rifle butt. Valid Dzhabrailov fell unconscious and was dragged outside. After that the brothers were separated and placed into different cells. 12. The first applicant was taken into a small cell in a basement, measuring approximately 2 x 3 metres. The cell had an electric light, a bunk bed and no windows. From the cell he could hear his brother Valid Dzhabrailov being interrogated and screaming as a result of being beaten. 13. After a while two masked men in camouflage uniforms came into the applicant's cell. They asked him a number of questions, such as: whether he had ever laid any landmines and whether he had known any members of illegal armed groups in his village. They beat him with their fists, pistols and a heavy flashlight and kicked him with their heavy boots. The applicant was subjected to such interrogations and beatings several times. The men pressurised the applicant to confess to involvement in illegal armed groups. For two days of his detention in the basement the first applicant was not given any food or drink. 14. It appears that Valid Dzhabrailov was detained in the same building as the first applicant. Between 16 and 18 February 2003 he was subjected to interrogations and beatings. 15. On 18 February 2003 two officers took the first applicant out of the basement, put a plastic bag over his head, bound it and his hands with adhesive tape and pushed him into a military UAZ car. In the vehicle the first applicant felt someone's heavy, cold body on the floor. He realised that this was the body of his brother, Valid Dzhabrailov. 16. The two servicemen took the first applicant and the body of Valid Dzhabrailov to an abandoned building of a former chemical plant in the Zavodskoy district of Grozny. One of them shot the first applicant in the head; the applicant was not killed, but wounded, and he was able to pretend to be dead. 17. The servicemen carried the first applicant and Valid Dzhabrailov's body into a pit and placed them under a piece of a construction block. Then they laid explosives on the first applicant and placed Valid Dzhabrailov's body on top of them. After that they lit the fuse. Having done that, they got back in the car and drove away. 18. The first applicant managed to set himself free and extinguish the burning fuse. He threw the explosives away before they exploded. He ran out into the street and stopped the driver of a passing car who drove him home. 19. Upon returning home the first applicant did not immediately seek medical help; that came at a later stage. The first applicant obtained the following medical statements and submitted them to the Court: 1) Medical statement issued by a neuropathologist at the 3rd Grozny town hospital, dated 8 December 2003. The document stated that, as a result of a splinter wound to the head, Aslan Dzhabrailov was suffering from cephalgia (pain in the skull), asthenia and neurosis. 2) Medical statement issued by a neuropathologist at the 3rd Grozny town hospital, dated 31 August 2004. The document stated that, as a result of a tangential wound to the head received in 2003, Aslan Dzhabrailov was suffering from asthenia and neurosis. 3) Medical statement issued by a surgeon at the 3rd Grozny town hospital, dated 31 August 2004. The document stated that the applicant had undergone a medical examination of the tangential wound inflicted to his head in 2003. 20. On 18 February 2003 (in the submitted documents the date was also referred to as 17 February 2003) the applicants, their relatives and neighbours went to the Zavodskoy district of Grozny. They found Valid Dzhabrailov's body where it had been left by the first applicant and took it home. According to the witnesses, Ms L.M. and Ms A.M., the body showed traces of torture: it was black from the beatings; the wrists and ankles had been cut to the bone from the wearing of handcuffs and shackles; the palms and feet had been crushed and the head was hardly recognisable. They found a piece of metal wire on the neck but there was no trace of firearm wounds on the body. 21. Valid Dzhabrailov was buried soon afterwards before anyone had contacted medical institutions or law enforcement authorities. Two certificates were issued in connection with his death: the medical statement confirming Valid Dzhabrailov's death, dated 17 April 2003 and Valid Dzhabrailov's death certificate, stating that his death had occurred on 17 February 2003. 22. In support of their statements, the applicants submitted: an account by Ms L.M., dated 29 September 2003; an account by Ms A.M., dated 29 September 2003; an account by the first applicant, dated 29 October 2003; an account by the second applicant, dated 29 October 2003; an account by the third applicant, undated, and the three medical certificates, one dated 8 December 2003 and two dated 31 August 2004. 23. The Government did not challenge the facts as presented by the applicants. However, they pointed out that the investigation file contained neither a mention of the first applicant's beating in the car following the abduction nor his assertion that he had heard Valid Dzhabrailov screaming from being beaten while in detention. 24. Since 16 February 2003 the applicants have repeatedly applied in person and in writing to various public bodies, including the district department of the Ministry of the Interior (the ROVD) and prosecutors at various levels. They have been supported in their efforts by the NGO, SRJI. In their letters to the authorities the applicants referred to the events of 1618 February 2003 and asked for assistance and details of the investigation. Mostly, these enquiries have remained unanswered, or purely formal replies have been given in which the applicants' requests have been forwarded to various prosecutors' offices. The applicants submitted to the Court some of the letters sent to the authorities and their replies. These documents, as well as the documents submitted by the Government, are summarised below. 25. On 16 February 2003 the Grozny district prosecutor's office inspected the crime scene at the applicants' house. Nothing was collected from the scene. 26. On 17 February 2003 an officer of the Zavodskoy ROVD informed his superiors that at about 6 p.m. on that date the ROVD had received information about the discovery of Valid Dzhabrailov' body in an abandoned building on the premises of a chemical plant and of the first applicant with a gunshot wound in his head. The latter stated that he and his brother, Valid, had been abducted from their house at about 6 a.m. on 15 February 2003 by unidentified armed men in camouflage uniforms; that they had been detained in an unidentified place and then taken by the abductors to the chemical factory in a UAZ vehicle. 27. On 18 February 2003, under Article 126 § 2 of the Criminal Code (aggravated kidnapping), the Grozny district prosecutor's office instituted an investigation into the abduction of Valid and Aslan Dzhabrailov. The case file was given the number 42024 (in the submitted documents the number was also referred to as 42042 and 41026). 28. On 18 February 2003 the investigators examined the crime scene at the place where Valid Dzhabrailov's body had been discovered. The investigators inspected the body on the spot and drafted a report to this effect. As a result, it was established that Valid Dzhabrailov's skull, face, ribs and upper and lower limbs seemed intact; no metal wire was found on his neck. Nothing was collected from the scene. 29. On 18 February 2003 the Grozny town prosecutor's office instituted an investigation into the murder of Valid Dzhabrailov and the case file was given the number 30034. 30. On 19 February 2003 the first and third applicants were granted victim status in the criminal case concerning the abduction and were questioned. 31. During questioning on 19 February 2003 the third applicant stated that at about 7 a.m. on 16 February 2003 a group of military servicemen had arrived at their house in several vehicles and had broken in. They had been armed with automatic guns; their faces had been covered with masks. The intruders had woken up the first applicant and Valid Dzhabrailov, taken their passports and told the third applicant in Russian that they would check her brothers' identities and release them. After that the servicemen had pushed the brothers into a grey UAZ car and taken them away. On 18 February 2003 a woman had arrived at the applicants' house and told them that the first applicant and Valid Dzhabrailov had been in the Zavodskoy ROVD. The applicants had immediately informed the district police officer about it who had gone to Grozny and returned with the body of Valid Dzhabrailov and the first applicant. The body had had numerous injuries and the first applicant had received a gunshot wound to the head. The witness further stated that she had learnt from the first applicant that the brothers had been handcuffed and taken to a basement made of concrete box units. At some point later they had been separated and the first applicant had not seen Valid Dzhabrailov for about twenty-four hours. In the morning of 18 February 2003 a Russian-speaking man in a camouflage uniform had removed the handcuffs from the first applicant, bound his hands, put a sack over his head and bound it with adhesive tape. He had pushed the applicant into a UAZ vehicle beside a cold corpse; the first applicant had thought that it must have been the body of his brother, Valid. The car had been driven for about fifty minutes; then it had stopped and the first applicant had been taken out. He had been dragged about 10-15 metres away from the road; then he had been forced to the ground and shot in the head; he had pretended to be dead. After that they had put Valid Dzhabrailov's body on top of the applicant; then they had placed three pieces of trotyl between the brothers' bodies and lit them. One of the abductors had suggested to the other in Russian: “Lets wait until it explodes” but the other one had said that they'd better leave quickly. After that they had got back into the car and driven away. The first applicant had managed to extinguish the explosive device and made it to the road, where he had stopped a car which had taken him to the Zavodskoy ROVD. On 20 February 2004 the investigators again questioned the third applicant who provided a statement similar to the one given on 19 February 2003. She added that the abductors had told her that they had been taking Aslan and Valid Dzhabrailov to the Staropromyslovskiy ROVD for an identity check; that the abductors had been a group of about thirty men, five of whom had broken into their house. 32. During questioning on 19 February 2003 the first applicant stated that at about 7 a.m. on 16 February 2003 he and his brother, Valid, had been abducted from their home by a group of five armed military servicemen who had arrived in three grey UAZ vehicles, a white four-door “Niva” car and a white “Gazel” minivan. The abductors had blindfolded the brothers and pushed them into a UAZ vehicle. After that the abductors had driven for about fifty minutes and taken the brothers to a windowless basement, which measured approximately 5 x 7 metres and was divided into smaller cells. The first applicant had been taken to a cell with a wooden door where he had been kept for about thirty-six hours. In the evening of 17 February 2003 he had been taken outside by two armed servicemen in uniform, who had put a sack over his head and bound it with adhesive tape. Then they had pushed the applicant into a UAZ car, inside which was a cold corpse. The abductors had driven for about forty to fifty minutes. Then they had stopped, dragged the applicant out of the car and forced him to his knees against a wall. The corpse had been placed next to the applicant. After that the abductors had shot the applicant in the head; he had felt the pain but managed to pretend to be dead. Then the servicemen had placed an object between the applicant and the corpse and set it on fire, discussing whether it would be better to wait for the explosion or not. Next, the abductors had got back into the car and driven away. The applicant had pulled the sack off his head and seen that a pack of trotyl had been placed between him and the corpse of his brother, Valid. He had managed to extinguish the explosive device and throw it away. He had looked around and noticed that he had been taken to an abandoned building on the premises of a former chemical plant in Grozny. He had walked to the road, stopped a car and been driven to the Zavodskoy ROVD where he had informed the authorities about the events. 33. At a later date, on 3 March 2004 the investigators again questioned the first applicant whose second statement about the events of 1618 February 2003 was similar to the one given on 19 February 2003. In addition, he provided a more detailed description of the place of his detention and stated that the abductors had interrogated him and demanded that he confess to laying landmines; that they had beaten him with flashlights and rifle butts; that they had all been wearing uniforms and masks and had been armed with firearms and that one of them had been armed with a military “Makarov” pistol; that one of the abductors had addressed one of the men present during the interrogations in the basement as “Colonel” and that the latter had been wearing a specific reddish camouflage uniform with a peculiar blotted pattern and had been armed with a special sub-machine gun with a silencer; that the two men who had conducted the last interrogation of the applicant had not been wearing masks; that one of them was a large-built, fair-haired man with glasses, of about forty to forty-five years of age, whereas the other one had an Asian appearance, was about the same age and had a similar build to the first one; that these two men had taken the applicant to the premises of the former chemical plant where they had shot him in the head with a sub-machine gun, but the bullet had just grazed his head and he had managed to pretend to be dead; that the men had tried to blow up him and his brother's body; that after the abductors had left he had managed to stop an MAZ vehicle in which there had been two men who had driven him to a security lodge located in a yard with many garages; that three armed men in camouflage uniforms who had been present there had called the Zavodskoy ROVD via a portable radio and that about half an hour later a UAZ car had arrived and taken the applicant to the Zavodskoy ROVD. 34. On 19 February 2003 the investigators questioned the applicants' relative, Mr N.R., whose statement concerning the events of 16-18 February 2003 was similar to the ones given by the first and third applicants. 35. On 14 March 2003 the Grozny district prosecutor's office wrote to the Grozny district department of the Federal Security Service (the FSB) requesting information about the involvement of the first applicant in illegal armed groups. On 15 March 2003 the FSB replied that they had no such information. 36. On 14 March 2003 the Grozny town prosecutor's office joined the investigation in the criminal cases concerning the abduction and the killing. The joint criminal case was given the number 30034. 37. On 18 April 2003 the investigators informed the applicants that the investigation in the criminal case had been suspended for failure to identify the perpetrators. 38. On 3 February 2004 the Chechnya prosecutor's office informed the second applicant that her complaint about the killing of Valid Dzhabrailov had been examined and that on 3 February 2004 the investigation had been resumed. 39. On 2-3 March 2004 the Chechnya Bureau of Forensic Expert Evaluations conducted an expert evaluation of Valid Dzhabrailov's body based on the crime scene examination report of 17 February 2003. According to the expert's conclusions: “... The following injuries were found on Valid Dzhabrailov's body: - numerous extensive bruises of the body and the extremities; - circular abrasions on the wrist and ankle joints; 2. The injuries could have been caused by a number of impacts by a dull firm object (objects) two or three days prior to the death; 3. The corpse of V. Dzhabrailov was not examined; therefore, it is not possible to make further conclusions...” 40. On 6 March 2004 the Zavodskoy district prosecutor's office suspended the investigation in the criminal case for failure to identify the perpetrators and informed the applicants about it on 15 or 29 March 2004. 41. On 10 October 2004 the first applicant complained to the Zavodskoy district prosecutor's office that the investigation into Valid Dzhabrailov's murder had been ineffective, that there had been a lack of information about the progress of the investigation and that its suspension had been unjustified. 42. On 11 May 2005 the applicants' representatives wrote to the Grozny district prosecutor's office and the Grozny town prosecutor's office. They described in detail the circumstances of Valid and Aslan Dzhabrailov's abduction and their subsequent detention. In particular, they described the beatings and the ill-treatment to which the brothers had been subjected by the abductors and the abductors' attempt to kill the first applicant. They further complained that the investigations into the abduction and the murder had been ineffective and that there had been a lack of information about the progress of the proceedings, and asked to be provided with copies of a number of procedural decisions. 43. On 14 June 2005 the Zavodskoy district prosecutor's office informed the applicants that on an unspecified date the investigation into the abduction had been joined with the investigation into the murder and the joint criminal case had been given the number 30034. 44. On 21 July 2005 the applicants' representatives wrote to the Zavodskoy district prosecutor's office complaining that the investigation in the joint criminal case had been ineffective and that there had been a lack of information about the steps taken by the investigators. In particular, they pointed out that they had received no information as to whether an expert evaluation of the evidence discovered at the crime scene or a forensic examination of Valid Dzhabrailov's body had been carried out. They further asked that the first applicant be provided with access to the investigation file. 45. On 27 October 2005 and 25 June 2008 the decisions to suspend the investigation were overruled by the supervisory prosecutors for failure to take necessary investigative steps and the proceedings were resumed. 46. The applicants submitted that the authorities had failed to provide them with information concerning the investigation into the abduction and the subsequent killing of their close relative. 47. The Government submitted that the investigation in criminal case no. 30034 was still in progress. The perpetrators of the abduction and the killing had not been identified, but the domestic authorities were taking steps to have the crime resolved. The applicants had been duly informed of all decisions taken during the investigation. 48. Despite specific requests by the Court, the Government did not disclose most of the contents of criminal case no. 30034. They submitted copies of several documents and stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure because the file contained personal data concerning the witnesses or other participants in the criminal proceedings. 49. On 23 September 2005 (in the submitted documents the date was also referred to as 23 September 2003 and 11 October 2005) the first applicant complained to the Zavodskoy district court of Grozny. He described in detail the events of 16-18 February 2003, including the beatings to which he had been subjected by the abductors, and complained that the investigation in criminal case no. 30034 had been ineffective and that its suspension had been unjustified. The applicant sought a ruling obliging the authorities to resume the investigation and provide him with access to the investigation file. 50. On 28 October 2005 the Zavodskoy district court rejected the complaint stating that the investigation in the criminal case had been resumed on 27 October 2005. 51. For a summary of relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007). | 1 |
dev | 001-103021 | ENG | POL | CHAMBER | 2,011 | CASE OF PŁAZA v. POLAND | 4 | No violation of Art. 8 | Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano | 5. The applicant was born in 1951 and lives in Gozd. 6. He married E.K. in October 1989. On 9 May 1990 K., the couple's daughter, was born. Two weeks later the couple split up. On 2 November 1992 the Warsaw Regional Court pronounced their divorce. The court awarded custody of the couple's child to both parents and ordered that her place of residence should be with her mother. 7. Between 1992 and 1997 several sets of proceedings were conducted concerning the enforcement of the access arrangements provided in the divorce judgment. Ultimately, on 22 July 1997 the parties reached an agreement validated by the court as to the manner of implementing the custody arrangements. The applicant was allowed to see K. once a month on Sundays for two hours, from 3 to 5 p.m. 8. Subsequently, the Warsaw-Mokotów District Court and, upon appeal, the Warsaw Regional Court, conducted successive sets of enforcement proceedings in respect of the 1997 agreement. In particular, it examined the applicant's successive applications for a fine to be imposed on the mother and/or to have time-limits fixed within which she should comply with the access arrangements and allow the applicant to see K. 9. On 16 October 1997 the applicant lodged an application with the Warsaw District Court for a fine to be imposed on K.'s mother. He submitted that she had consistently failed to comply with the conditions of the agreement concluded in July. On 2 December 1998 the mother was summoned by the court and ordered to allow the applicant access to their child within fourteen days. Upon her appeal, on 23 February 1999 the Warsaw Regional Court quashed that decision on formal grounds and remitted the case. On 21 October 1999 the Warsaw-Mokotów District Court set a one-month time-limit within which the mother was to comply with the conditions of the access agreement. 10. In letters to the Warszawa Mokotów District Court of 31 March and 26 April 1998, 19 April 1999 and 10 April 2001, E.K. requested the court to order the applicant to attend the meetings with the child without male friends, to dress appropriately for the occasion, to arrive on time and not to tease the child. In a letter of 9 March 1998 she informed the court that the applicant had failed to attend meetings planned for November, December, January and February, without having informed her that he would not come. She further stated that despite this the child would be ready to meet her father under the conditions specified in the agreement. In a letter of 29 January 1999 she informed the court that out of eighteen monthly meetings planned since the agreement had been concluded the applicant had failed to attend nine. 11. In 2000 the District Court appointed a custody officer to supervise the execution of the access agreement. She periodically submitted reports to the court, dated, inter alia, 15 September 2000, 6 April and 8 May 2001, 12 September 2003, 26 April and 2 May 2004 and 25 May 2005. 12. In January 2000 the first-instance court, following the applicant's complaint, again set a one-month timelimit for the mother to comply with the access arrangements and imposed a fine on her in the amount of 1,000 Polish zlotys (PLN). 13. On 4 June and 29 November 2000 the applicant renewed his applications. The court dismissed them on 6 September 2001. It observed that there were no grounds for imposing a fine, as the mother had not taken any steps to make it impossible for the father to see the child. It was the child herself who was hostile to her father. The applicant appealed, complaining that the court lacked impartiality and that it had wrongly assessed the evidence before it. The Warsaw Regional Court dismissed his appeal on 10 December 2001. It found that the parties had been in a bitter conflict; that the child had a negative attitude towards her father; that the mother had not done anything to prevent the girl from having contact with her father; that it was not in the child's best interest to force her to have frequent contact with him; and that the lower court had made correct findings of fact. 14. In May 2002 the applicant submitted a new application for a fine to be imposed on the mother. On 1 August 2002 the court dismissed it, essentially reiterating the reasoning adopted in its decision of 6 September 2001 and referring to similar findings of fact. It observed that the mother and father were in a conflict so bitter that they had become unable to see how much their conflict affected the child. They both blamed the other party for all the problems arising in connection with the exercise of custody and access rights, failing to see their own shortcomings and being unable to reach any compromise. The child had become an instrument in the fight between the parties. The child's hostility to her father and, in particular, the fact that the mother had not sought to influence her attitude, was alarming. The parents had told the court that they needed therapy, but had failed to do anything about it. The father had repeatedly asked for the mother to be punished by a fine but he had not challenged the assertion that it was the child herself who did not want to see him. 15. The applicant appealed, complaining that the first-instance court had been very superficial in the examination of the evidence. On 14 November 2002 the Warsaw Court of Appeal dismissed the applicant's appeal against that decision. It observed that forcing the child to see his father would not by itself restore the emotional ties between the girl and her father, and that these ties had become seriously weakened. 16. On 4 June 2003 the applicant submitted a new application to make the mother comply with the access arrangements. In the proceedings instituted by this application the court ordered that another opinion should be prepared by psychologists to assess both the feasibility of the applicant's contact with K. and the psychological state of the persons concerned. In that opinion, dated 1 October 2003, the experts stated that the child had declared that she had agreed to talk to the experts only at her mother's request. She had stressed that she had not changed and would not change her attitude towards her father. She could not understand why the applicant wanted to pursue contact, given that he had filed an application for denial of paternity (see paragraphs 37-38 below). She was convinced that he was motivated by his wish to annoy and cause stress to herself and her mother. She had complained about his visits to her school and the fact that he had told her teachers and her friends that she was a “bad daughter”. K. had called the applicant a “sadist”. She had objected to his criticising her mother, to whom she was very strongly attached. K. had strongly denied that her mother had ever forbidden her to see the applicant. In their conclusion the experts reiterated the conclusion of their 2001 report and noted that the therapy, which both the parents and the daughter had undergone separately, had not produced positive results. 17. On 25 February 2004 the first-instance court again set a one-month time-limit for the mother, on pain of a fine of PLN 1,500. The court summarised the enforcement proceedings and the decisions given in them. It noted that the applicant had not behaved badly towards the child and that he had reported regularly for the meetings. His behaviour towards the child might have been awkward but this was due essentially to the fact that he did not actually know the girl as he had had very little opportunity to get to know her. The court referred to an expert opinion prepared for the purposes of the proceedings and concerning the child's psychological situation. K. was very hostile towards her father, despite the fact that she had had no personal experience with him capable of justifying her hostility. The mother had failed to take any steps to persuade the child to have contact with her father or to alter the negative image which the child had formed of him. The court found K.'s attitude alarming. It further noted that had the mother been dissatisfied with the scope or character of the applicant's access rights, it had been open to her to challenge them in separate proceedings. The present case was concerned only with the enforcement of the existing access rights as defined by the 1997 agreement and it was obvious that the mother was not complying with them. 18. Both parties appealed. In her appeal E.K. stressed that she had never taken any steps to prevent her daughter from meeting the applicant. It was the child who had steadfastly refused to see her father, which left the mother helpless. In his appeal, the applicant insisted that the mother should be obliged to pay the fine after the expiry of the timelimit, as provided for by Article 1050 of the Code of Civil Procedure. The appeals were dismissed on 7 June 2004. The Warsaw Regional Court dismissed the applicant's appeal, in which he sought that a fine be imposed on the mother, noting that a fine could only be imposed if she had failed to honour her obligation within the time-limit set by the court. It further observed that it was actually the child, not the mother, who had refused contact, while it was the mother who was the debtor within the meaning of Article 1050 of the Code of Civil Procedure. It also dismissed the mother's appeal, observing that the child had, beyond any doubt, been drawn into the conflict between the parties. The image she had of her father had been shaped by her mother, particularly as the child had not had any contact with her father for several years, despite the fact that he had always been ready to see her and continued to come to the meetings fixed for that purpose. It was the mother who was responsible for the child's attitude, which was full of hatred and hostility towards her father. The court found the mother's attitude inappropriate. It further noted that the applicant and the mother and child had undergone therapy, but separately. However, as the child had refused to talk about her father, the issue of contact with him had not been addressed in her therapy. There were no grounds for believing that contact with her father would harm the child. 19. On 16 November 2004 the Warszawa-Mokotów District Court examined a complaint by the applicant, submitted on 15 September 2004, that the access rights had not been properly implemented, despite the expiry of the time-limit set for that purpose in the decision of 25 February 2004. The court noted that the time-limit for ensuring compliance had expired and that since that date the applicant had not seen the child as she steadfastly refused to meet him. The court imposed a fine of PLN 1,000 on the mother. It further set a timelimit of thirty days for her to comply with the access arrangements. 20. E.K. appealed. On 7 June 2005 the Warsaw Regional Court allowed her appeal and remitted the case. It observed that while it was true that the contact arrangements had not been respected, this was not because of the mother's failure to comply with them, but because of the girl's attitude. It further noted that she was fifteen years old and her views and feelings had to be taken into account by the courts. 21. On 7 November 2005 the Warszawa-Mokotów District Court dismissed the applicant's application for a fine to be imposed on E. K. The court heard K. in the absence of the parties and referred to her statements in its decision. She stated that it was she who had not complied with the access agreement. She told the court that the applicant had never been around when she needed him, he had never listened to her and had only wanted to hurt and annoy her mother. She stated that she would not see her father. The court emphasised that the father had a right to contact his daughter and the parties themselves had had regard to this right when concluding the 1997 agreement. However, while the situation obtaining at that time had probably offered prospects of contact, the court was obliged to take into consideration the current situation. K. was now fifteen years old and her opinion had to be taken into account. Lack of regular and peaceful contact for over eight years had resulted on her part in a lack of any emotional ties with her father. It could not be overlooked that the applicant did not want to listen to her views or to respect them. Even before the proceedings before the court he was dismissive of her views and expressed the opinion that they had been dictated by her mother. The court concluded that it could not be said that the mother was to blame for making contact impossible. There were no grounds for imposing a fine on her. The applicant appealed, requesting that the decision be quashed. 22. On 25 April 2006 the Warsaw Regional Court dismissed his appeal, finding that there were no grounds on which to impose a fine on the mother, given that the child was old enough to express her own views and feelings on the question of contact, which she obviously did not want to maintain. The mother could not be said to bear responsibility for the non-enforcement of the access arrangements. 23. On 26 June 2006 the applicant again requested that a fine be imposed on E.K. for failure to respect the access arrangements. 24. After that date, he had no further contact with the girl, even sporadically. 25. In reports submitted to the court on 4 December 2007 and 13 February 2008 the custody officer summarised her conversations with E.K. and K. She stated that K. was very mature for her age and very articulate. She did not understand how her father could say that he loved her and behave towards her in the way he did. He did not take her views into account, criticised her mother and her family, and had told many persons in K.'s environment that her mother was incapable of taking proper care of her. During the contact visits, he had complained about her mother. She did not want to be exposed to this. She requested recognition and understanding of her feelings and views. She stated that she was almost an adult and able to make a sensible judgment for herself. The contact with her father had been a source of stress, anxiety and shame for her. 26. On a subsequent unspecified date the Warszawa-Mokotów District Court ordered the applicant to submit the original of the access agreement of 1997. The applicant complied on 14 March 2008. His application of 26 June 2006 (see paragraph 23 above) was dismissed by the Warsaw District Court on 9 May 2008. The court had regard to all the material gathered in the file on the enforcement proceedings. It took into account K.'s persistent refusal to see the applicant and the fact that she had repeatedly said that she disliked or even hated him. It noted that there was no evidence that E.K. had prevented her daughter from seeing her father. It observed that the applicant's conduct towards K. could not have contributed to building good relations between them as he had tried on various occasions to see her unexpectedly at school or in other places or circumstances, which had only heightened the child's dislike and fear of him. It also noted that K. was eighteen years old and her views had to be taken into consideration. 27. On 20 May 2008 the court discontinued the proceedings concerning the enforcement of the 1997 agreement on the ground that K. was now 18 years old and thus the proceedings had become devoid of purpose. 28. On 21 April 1999 the court extended the applicant's access rights specified in the 1997 agreement and ordered that his meetings with K. be supervised by child contact supervisors. This decision was later amended by the Warsaw Regional Court on 22 February 2000. That court held that the temporal scope of the applicant's contact visits with K. should remain as determined in the original agreement but upheld the proviso that they should be supervised by child contact supervisors. 29. In 2001 the applicant again requested the Warsaw District Court to change the access arrangements specified in the 1997 agreement and to extend his visiting rights in respect of the child. Simultaneously, the mother requested the court to limit the applicant's access rights to a minimum. These two applications were subsequently joined and examined in the same set of proceedings. 30. The applicant's daughter was examined by experts in the course of these proceedings. The objective of the expert opinion, submitted to the Mokotów District Court, was to examine the nature of the relationship between the applicant and his daughter and to assess the value of contact visits for the child's development and well-being. The experts observed that K. had a highly negative opinion of her father. She refused to use his surname as her own name. She was of the view that he had failed to show a proper interest in her and that in fact he despised her and all his actions were aimed at annoying her and her mother. The experts concluded that because of that negative attitude relations between the applicant and his daughter were strained to such an extent that any meaningful contact was impossible. 31. On 23 October 2001 the court deprived the applicant of his access rights. The judgment was amended on 28 February 2002 by the Warsaw Regional Court and the mother's application to restrict the applicant's access rights was dismissed. 32. In May 2002 the applicant submitted to the same court an application to have the mother's custody rights restricted. In July 2002 E.K. submitted an application to have the applicant divested of his rights. 33. By a decision of 8 August 2002 the Warszawa-Mokotów District Court dismissed the applicant's request, ordered him to undergo therapy and imposed an identical obligation on E. K. and K. The court observed that, as the conflict between the parties had made it impossible for them to show a modicum of co-operation in the child's interest, therapy offered a chance for their relationship to improve. The court found that the conflict between the parents had caused the child to suffer from very serious psychological disturbances. 34. In a new set of proceedings instituted by the applicant by which he requested that E.K. be divested of her parental rights, the court questioned experts at a hearing held on 7 January 2004. On 18 February 2004 the Warszawa-Mokotów District Court dismissed the request submitted by the applicant, expressing the view that the applicant was essentially motivated by his wish to harass his former wife. 35. On 30 March 2006 E.K. requested the Warszawa-Mokotów District Court to divest the applicant of his parental rights. The applicant lodged an identical application with the same court. The cases were subsequently joined at a hearing held on 17 July 2006. A hearing scheduled for 16 October 2006 was adjourned as a refusal to allow the request to disqualify the judge, submitted by the mother, issued on 4 September 2006, had not become final. Subsequent hearings scheduled for 25 January and 5 March 2007 were adjourned as the parties failed to attend them. On 23 May 2007 a witness failed to comply with the summons and the hearing was adjourned. The next hearing was scheduled for 12 September 2007. On 4 June 2007 the applicant submitted a motion for a lay judge to be disqualified. On 12 September 2007 the court decided that the mother and child should be examined by the experts. The mother and K. were accordingly summoned to report to the Family Diagnostics Centre on 1 April 2008 but failed to comply with the summonses on that date. The court scheduled the hearing for 27 May 2008. The interview in the Centre was rescheduled for 11 June 2008. 36. On 27 May 2008 the court discontinued the proceedings as K. had turned eighteen on 9 May 2008. 37. In 2001 the applicant requested the Piaseczno District Prosecutor to bring, on his behalf, proceedings for denial of his paternity in respect of K. The child's mother was heard by the prosecutor on 17 October 2001. She gave her consent to DNA tests being carried out. The prosecutor informed the applicant thereof and stated that he would bring proceedings before the court only if the results of the tests showed that the applicant was not the father. By a letter of 2 November 2001 the applicant refused to undergo a DNA test and requested the prosecutor to lodge the case with the court. He submitted that the court should order the mother and child to undergo a test. 38. The prosecuting authorities brought no proceedings, finding, in the light of the parties' submissions, that there were no justified grounds on which to challenge the applicant's paternity. 39. On an unspecified date in 2006 the applicant filed a complaint under 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”) about a breach of his right to have his case heard within a reasonable time in the enforcement proceedings instituted by his application of 4 June 2003 and terminated by the decision of 25 April 2006 (see paragraphs 16 and 22 above). 40. On 21 September 2006 the Warsaw Regional Court dismissed his complaint. It observed that the applicant complained essentially about the second-instance court's quashing, on substantive law grounds, the decisions given by the first-instance court, which, in his view, had unduly prolonged the proceedings. The court noted that the length complaint could not go to the merits of the decisions and that there had been no periods of inactivity in the proceedings. Having examined the conduct of the District Court since the entry into force of the 2004 Act on 17 September 2004, the Regional Court found that the proceedings had been conducted with due diligence and within a reasonable time. 41. On 6 June 2008 the Warsaw Regional Court discontinued the proceedings instituted by the applicant's complaint about the unreasonable length of the proceedings, summarised in paragraphs 35 and 36 above. The court found that, given that the impugned proceedings had been discontinued on 27 May 2008, a ruling on their length had become redundant. 42. The relevant domestic law and judicial practice concerning the enforcement of a parent's visiting rights are set out in the Court's judgment in the case of Zawadka v. Poland, no. 48542/99, § 48, 23 June 2005. 43. In particular, according to the Supreme Court's resolution, if a parent who has been obliged by a court decision to respect the other parent's access rights refuses to comply therewith, access decisions are liable to enforcement proceedings. The provisions of the Code of Civil Procedure on enforcement of nonpecuniary obligations are applicable to enforcement of court decisions on parental rights or access rights (resolution of the Supreme Court of 30 January 1976, III CZP 94/75, OSNCP 1976 7-8). “1. If the debtor is obliged to take measures which cannot be taken by any other person, the court in whose district the enforcement proceedings were instituted, on a motion of a creditor and after hearing the parties, shall fix the time-limit within which the debtor shall comply with his obligation, on pain of fine (...). 2. If the debtor fails to comply with this obligation, further time-limits may be fixed and further fines may be imposed by a court.” If the court obliges a parent exercising custody rights to ensure access to a child to the other parent, Article 1050 of the Code of Civil Procedure is applicable to the enforcement of this obligation. 44. Article 12 of the UN Convention on the Rights of the Child provides that the States Parties shall ensure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 45. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the provisions of the 2004 Act as applicable at the material time, are set out in the Court's decisions in cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 1223, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and its judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V. | 0 |
dev | 001-94840 | ENG | RUS | CHAMBER | 2,009 | CASE OF PORUBOVA v. RUSSIA | 3 | No violation of Art. 6-1;Violation of Art. 10 | Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 6. The applicant was born in 1970 and lives in Yekaterinburg. At the material time she was a journalist and the editor-in-chief of the newspaper D.S.P. (“D.S.P.” is a Russian abbreviation meaning “For Official Use Only”). 7. In late September 2001 the applicant's newspaper published in the same issue several items concerning the large-scale misappropriation of budgetary funds allegedly committed by Mr V., the head of the Sverdlovsk Regional Government, for the benefit of Mr K., an employee of the Moscow representative office of the Sverdlovsk Region. 8. The first article, entitled “Gay scandal in the White House” (“Гей-скандал в «Белом доме»”), appeared under the name of “Sergey Petrov”. It opened with the following passage: “Once upon a time there lived the head of the Sverdlovsk Regional Government Mr V. He had everything: his position, high esteem and respect. And also the governor's love. But V. fell in love ... not with the governor or with his work, but with a twenty-five year-old employee of the region's representative office in Moscow, Mr K. How does one become a homosexual? Where does this “love” come from? We are simple unsophisticated people ... And we cannot imagine the scene that took place between them in the sumptuous building of the region's representative office in Moscow ... Rumour has it that the governor, on having learnt certain details, was furious ... and even fired K. from his position. But love, as we know, can overcome any obstacle. It finds not only a time, but also a place.” 9. The article further asserted that, under the terms of an order signed by Mr V. in 1997, the regional railway company had extinguished its outstanding regional tax liability by purchasing a three-room flat in Moscow: “The flat was bought in Moscow at the following address: 9 Orshanskaya St., building 1, flat no. ... Initially the flat was even entered in the Government's balance sheet. However, after a while V. made a gift of the flat ... No, please do not think that he gave it to Mr K... [He gave it] to Mr K.'s father. Apparently, as a 'thank-you' for the upbringing of his son...” 10. The author concluded in the following manner: “It might have been a private matter if it were not for two 'buts'. [Firstly,] two public figures, rather than private individuals, were linked together by Shakespearean passions in this story. In the instant case: the head of the Sverdlovsk regional government, V., and a member of the regional parliament, K... Secondly, the flat was purchased at our expense, at the expense of our budget. Two billion roubles disappeared in 1997 into thin air. To date there has been no reimbursement or sanctions on the part of the tax authorities. The [character from a well-known Soviet picaresque novel] blushed a lot as he was stealing official property, but his like-minded accomplice V. never blushes. And yet, to this day the entire budget of the region is channelled through his hands. How can we ensure that he handles that money honestly?” 11. On the left-hand column of the page the newspaper reproduced the text of a letter which the deputy director of the Sverdlovsk regional police had sent to the chairman of the Sverdlovsk regional audit commission. The police officer informed the auditor that the police were investigating the mechanism which involved extinguishing tax liabilities by acquiring a flat in Moscow, and asked the experts of the audit commission to assist by verifying the accounts of the railway company, the Sverdlovsk Regional Government and the private company that had acted as middleman in the transactions. 12. The third item, at the bottom of the page, was an article entitled “History of the flat on Orshanskaya [Street]. Embezzlement of public funds: a step-by-step guide for beginners” (“История квартирки на Оршанской. Пошаговая стратегия для начинающих казнокрадов”). It described, in chronological order, the financial and real-estate transactions between the railway company and the intermediary company, as well as the orders signed by Mr V. and the sale of the flat to Mr K.'s father. 13. On 12 October 2001 the prosecutor's office of the Sverdlovsk Region, acting on requests from V. and K., initiated criminal proceedings against the applicant for criminal libel and insult disseminated via the media, offences under Articles 129 § 2 and 130 § 2 of the Criminal Code. 14. The investigator commissioned a linguistic and cultural expert examination of the articles in question. On 6 November 2001 the expert came to the conclusion that they contained allegations that V. and K. were homosexuals who had engaged in sexual intercourse in the representative office of the Sverdlovsk Region. The expert considered that the articles had sought to present a negative image of V.: “Tolerance towards the customs and mores of others is, in general, uncharacteristic of the Russian mentality, which is also evident in the attitude towards 'sexual minorities'. The Russian popular mindset and the Russian language retain a rigidly negative, rude and discourteous attitude to people of non-traditional sexual orientation (homosexuals and lesbians).” The expert noted that the author of the first publication had “a preference for emotional value-judgments”. The report concluded: “In this context the information on the sale and purchase of a flat in Moscow at the expense of the budget becomes sensational and seeks to persuade the reader to view V. as a dishonest manager, embezzler of public funds, and, in addition, an immoral person who craves sensual pleasure and physical attraction and is wanton and lustful. The pragmatic aim of the articles ... is to undermine [readers'] trust in V. and K. as politicians...” 15. In late November 2001 counsel for the applicant privately commissioned a linguistic expert examination of the articles. The expert found that the word “homosexual” had no negative connotations and, therefore, could not be held to damage or undermine the honour and dignity of others. He noted that Russian society in recent years had become more tolerant towards homosexuality and a disclosure of someone's homosexuality in the mass media was not necessarily damaging to his reputation. Counsel asked the investigator to admit the report in evidence, but her request was refused on the ground that the expert had been a linguist rather than a specialist in cultural studies and thus had not been competent to perform the examination. 16. On 29 and 30 November 2001 the applicant was charged with criminal libel and insult disseminated via the mass media. 17. Following the applicant's indictment, she and her counsel filed a number of requests. They pointed out that the indictment did not identify which information the prosecution considered untrue. As the actual scope of the investigation had been limited to the allegations about V.'s homosexuality, the applicant insisted that its scope be extended to include the misappropriation of budgetary funds. Alternatively, if the charges were to be based exclusively on the allegations about V.'s and K.'s homosexuality, the applicant requested that a medical examination of V. and K. be carried out in order to establish their sexual orientation. On 3 and 28 December 2001 the investigator refused all the requests. He replied in general terms that the investigation was complete and that no further interviews or expert reports were necessary. 18. On 28 December 2001 the final bill of indictment was served on the applicant and the case was referred for trial. The applicant was charged with criminal libel and insult on account of her having disseminated the information that “V. and K. [were] homosexuals and lovers who [had] engaged in a homosexual act in the building of the region's representative office in Moscow”. The charges did not refer to the allegations of misappropriation of budgetary funds. 19. The case was referred for trial to the Verkh-Issetskiy District Court of Yekaterinburg, which decided to conduct the trial in private. The applicant and her counsel asked for a public hearing, while the victims and the prosecution stated their objections to giving further publicity to the case. The District Court maintained its decision to hear the case in private, noting that it related to the victims' private life. 20. The applicant pleaded not guilty. She claimed that she had been convinced of the accuracy of the information on K.'s homosexuality because she knew him in person. She also requested leave to adduce in evidence certain material comprising witness statements about a same-sex relationship between V. and K.; the court refused this request. 21. The court examined the witnesses, who testified that the applicant had been in charge of drafting the articles and publishing and distributing the newspaper. 22. On 22 April 2002 the District Court gave judgment. It did not make any findings as to whether the information on V.'s and K.'s homosexuality was true or false. Instead, it noted their statements to the effect that the articles in question had been damaging to their reputation as politicians and public servants. Relying on the conclusions of the linguistic expert examination of 6 November 2001, the District Court found as follows: “Indeed, it has been established beyond doubt that the editor-in-chief of D.S.P., Ya. V. Porubova, deliberately published ... [the impugned articles] which she had drafted. In these articles she stated that the Chairman of the Sverdlovsk Regional Government, Mr V., and a member of the House of Representatives of the Legislative Assembly of the Sverdlovsk Region, K., were homosexual lovers who had engaged in homosexual intercourse in Moscow in the building of the representative office of the Sverdlovsk Region, that is to say, she disseminated information based on her insinuations and which she knew to be untrue and defamatory in respect of the victims. In an attempt to slander the victims, she arranged for the printing of 500,000 copies of the newspaper and distributed them in the Sverdlovsk Region. The investigating authorities correctly characterised her actions as libel under Article 129 § 2 of the Criminal Code, i.e., dissemination via the mass media of information known to be untrue and damaging to other persons' honour, dignity and reputation. In addition, Mrs Porubova related in these articles untrue information to the effect that [V. and K.] were homosexual lovers who had engaged in homosexual intercourse in Moscow in the building of the representative office of the Sverdlovsk Region, that is, she deliberately assessed the personal qualities and conduct of the victims [in terms] which were grossly degrading to their human dignity and which contradicted society's prevailing approach to the treatment of individuals. Such treatment of the victims must be considered obscene and damaging to their dignity. In order to make the first issue of the newspaper appear important and sensational, she undermined the honour and dignity of the victims in the mass media. Therefore, the investigating authorities correctly characterised her actions as an offence under Article 130 § 2 of the Criminal Code.” 23. The applicant was found guilty as charged and sentenced to one and a half years' correctional work, with retention of fifteen percent of her wages for the benefit of the State. 24. On 4 September 2002 the Sverdlovsk Regional Court upheld the conviction, endorsing the reasons given by the trial court. 25. Subsequently, the applicant was dispensed from serving her sentence on the basis of an amnesty act in respect of women and minors passed by the Russian legislature on 30 November 2001. 26. Article 29 of the Constitution of the Russian Federation guarantees freedom of ideas and expression as well as freedom of the mass media. 27. Article 129 § 1 of the Criminal Code of the Russian Federation defines criminal libel as dissemination of information known to be untrue that damages the honour and dignity of another person or undermines the person's reputation. Article 129 § 2 provides that criminal libel disseminated in a public statement, a publicly displayed work of art or the mass media is punishable by a fine and/or correctional work for a period of up to two years. 28. Article 130 § 1 of the Criminal Code defines criminal insult as undermining the honour and dignity of the victim in an obscene manner. Article 130 § 2 provides that criminal libel disseminated in a public statement, a publicly displayed work of art or the mass media is punishable by a fine and/or correctional work for a period of up to one year. 29. Article 137 of the Criminal Code establishes that it is a criminal offence to collect or disseminate information about an individual's private life without his consent or to make such information public through the media. 30. Article 18 of the RSFSR Code of Criminal Procedure (in force at the material time) established that a trial could be conducted in private, in particular with a view to preventing information about intimate aspects of the parties' lives from being disclosed. | 1 |
dev | 001-85722 | ENG | POL | CHAMBER | 2,008 | CASE OF KRAWCZAK v. POLAND | 3 | Government's request to strike the application out rejected;Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - award | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi | 6. The applicant was born in 1950 and lives in Poznań. 7. On 17 June 1999 the Gdańsk District Court (Sąd Rejonowy) remanded the applicant in custody for three months on three counts of armed robbery. It considered that that measure was indispensable in order to secure the proper conduct of the proceedings, having regard to the serious nature of the offences in question and the likelihood of a custodial sentence. 8. The first hearing took place on 28 December 2001. Since that date almost 180 hearings have been scheduled and nearly 400 witnesses heard. Many hearings have been adjourned. 9. On 21 September 2005 the court decided that, because of the lengthy illness of a judge rapporteur, a new bench should be appointed. This meant that the proceedings had to be restarted. 10. On 24 November 2005 the Gdańsk Regional Court (Sąd Okręgowy) severed the bill of indictment and ordered that cases against fifteen other coaccused be tried in separate proceedings. 11. The proceedings are still pending. 12. On 30 January 2006 the applicant lodged a complaint about the undue length of the criminal proceedings 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”) and requested just satisfaction of PLN 10,000. 13. On 23 March 2006 the Gdańsk Court of Appeal (Sąd Apelacyjny) dismissed his complaint on the ground that since the date of entry into force of the 2004 Act no undue delays in the proceedings could be discerned, the proceedings having been conducted with due diligence and within a reasonable time. The court observed that the 2004 Act had entered into force on 17 September 2004 and could not be applied to the proceedings before that date. 14. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII and the judgment in the case of Krasuski v. Poland, no. 61444/00, §§ 34-46, ECHR 2005-V. | 1 |
dev | 001-107264 | ENG | TUR | CHAMBER | 2,011 | CASE OF GÜLTEKİN AND OTHERS v. TURKEY | 4 | Violation of Art. 6-1;Violation of P1-1 | András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi;Paulo Pinto De Albuquerque | 3. The applicants were born in 1952, 1960, 1962 and 1934 respectively and live in Bursa. 4. In 2004 the General Directorate of Highways seized a plot of land belonging to the applicants without any formal expropriation, for the construction of a highway. The applicants brought an action before the Karacabey Civil Court to obtain compensation for the de facto expropriation of their property. They requested 5,500 Turkish liras (TRY) as compensation from the court and reserved their right to increase this claim in due course. 5. On 22 June 2006 the Karacabey Civil Court awarded the applicants TRY 5,500 as compensation for the de facto expropriation of their land, as requested, plus interest. The applicants initiated execution proceedings before the Bursa Execution Office to obtain that amount (file no. 2009/2802). 6. On 13 March 2007 the Court of Cassation upheld the judgment of the first-instance court. 7. The applicants subsequently brought an additional action (“ek dava”) before the Karacabey Civil Court to obtain further compensation for their land in the light of the expert report obtained during the previous proceedings, which had valued the land at a rate higher than that initially requested by them. 8. On 24 May 2007 the Karacabey Civil Court awarded the applicants TRY 126,725, plus interest. The applicants initiated another set of execution proceedings before the Bursa Execution Office to obtain the amount awarded (file no. 2007/6192). 9. On 16 October 2007 the Court of Cassation upheld the judgment of the Karacabey Civil Court. 10. On 23 March and 13 November 2009 the administration paid TRY 8,821 and 187,447 respectively to the files before the Bursa Execution Office. 11. According to the information provided by the applicants, there has been no outstanding debt in the execution files. | 1 |
dev | 001-77001 | ENG | MLT | CHAMBER | 2,006 | CASE OF GHIGO v. MALTA | 2 | Violation of P1-1;Damage - question reserved;Costs and expenses award - domestic and Convention proceedings | Nicolas Bratza | 4. The applicant was born in 1928 and lives in Tarxien (Malta). 5. Before 1973 the applicant bought a house in Malta, which he had planned to use as a home for himself and his family. In order to purchase this building, he had incurred debts. Subsequently, in 1973 he acquired by donation full ownership of another house, in Paola. The applicant alleged that he then changed his plans and wanted to sell the former house in order to pay off his debts and to move into the house in Paola with his family. 6. On 31 March 1984 the house in Paola was seized by the Government under a requisition order issued by the Director of Social Housing under the Housing Act (Chapter 125 of the Laws of Malta). 7. On 23 August 1984 the applicant was informed that possession of the house in Paola had been given to a certain Mr G. 8. In September 1984 the applicant introduced a judicial protest against the relevant government department. He alleged that the issuing of the requisition order and the allocation of his property to a third party was causing him hardship. In a judicial letter of 8 November 1984, the Director of Social Housing asked the applicant, in his capacity as owner of the house in Paola, to recognise Mr. G. as the tenant of the premises (section 8 of the Housing Act). 9. According to the Housing Act, the applicant was entitled to receive a requisition rent for the use of his property. However the applicant alleged that no rent had ever been fixed or offered to him and since the date of the requisition he had received no compensation. 10. The applicant subsequently introduced a claim before the Civil Court (First Hall). He alleged that the requisition order and the allocation of his property to a third party was in violation of Article 1 of Protocol No.1, as incorporated into Maltese law by Act XIV of 1987 (European Convention Act). The applicant has not produced the documents pertaining to these proceedings and has not informed the Court about their outcome. 11. On 12 October 1990, while the first proceedings were still pending, the applicant introduced a second claim before the Civil Court (First Hall), alleging a breach of his right to the enjoyment of his property. He requested the Civil Court to issue the orders and directions needed to redress the violation of his fundamental rights, including, if necessary, a declaration that the relevant sections of the Housing Act had been abrogated by the European Convention Act. 12. In a judgment of 30 October 1995, the Civil Court declared the applicant's claim incompatible ratione temporis with the provisions of the European Convention Act, as the facts complained of had occurred before its entry into force on 30 April 1987. The requisition had been effected in accordance with the law which was in force at the time, and no violation of the applicant's fundamental rights could be established. 13. The applicant appealed to the Constitutional Court. 14. In a judgment of 28 February 2005, the Constitutional Court rejected the applicant's claim. 15. It considered that the situation complained of was a continuing one and the applicant was accordingly affected by it after 30 April 1987. Therefore, the facts of the case fell within the competence of the domestic courts. 16. As to the merits of the applicant's claim, the Constitutional Court noted that the only evidence produced by the applicant was a report of his architect, which stated that the rental value of the house was 120 Maltese Liras (MLT) (approximately 288 euros (EUR)) per year at the time of the requisition, and MLT 250 (approximately EUR 600) per year at the date of the report (28 October 1993). However, when the defendant declared that the rental value as fixed by the Land Valuation Officer was MLT 23 (approximately EUR 55) per year, the applicant did not produce any new evidence in rebuttal. According to the Constitutional Court, this constituted a manifest fault on the applicant's part. Furthermore, he never initiated proceedings before the Rent Regulation Board for the determination of a fair rent for his house. 17. The Constitutional Court also noted that in the implementation of policies of a socio-economic nature the margin of appreciation of the State was very wide. It quoted the case of Connie Zammit v. Malta (no. 16756/90, Commission's report of 12 January 1991) and an excerpt from van Dijk's and van Hoof's book “Theory and Practice of the European Convention” concerning the interpretation of the notion of “general interest”. In the light of the above, the Constitutional Court held that the applicant had proved neither the hardship he alleged nor a violation of Article 1 of Protocol No.1. 18. According to section 2 of the Housing Act requisition means: “to take possession of a building or require the building to be placed at the disposal of the requisitioning authority.” 19. Until 1989 the Housing Secretary could issue a requisition order if he was satisfied that such a step was necessary in the public interest for providing living accommodation to certain persons or for ensuring a fair distribution of living accommodation. As in force at the time of the requisition of the applicant's house, section 3(1) of the Housing Act read as follows: “The Secretary, if it appears to him to be necessary or expedient to do so in the public interest or for providing living accommodation to persons or for ensuring a fair distribution of living accommodation, may requisition any building, and may give such directions as appear to him to be necessary or expedient in order that the requisition may be put into effect or complied with.” 20. After 1989 the authority to issue requisition orders was given to the Director of Social Housing. 21. A requisition order imposes on the owner of the requisitioned premises a landlord-tenant relationship. According to section 8(1) of the Housing Act, the Director of Social Housing may require the owner to recognise the person accommodated in his property as his tenant or sub-tenant. 22. The owner of the premises may seek authorisation for non-compliance with this request in accordance with section 8(2) and (3) of the Housing Act, which, in so far as relevant, provides: “(2) Within thirty days of service on him of a judicial letter under the last preceding sub-section, the requisitionee, by application to the First Hall of the Civil Court in contestation of the Director, may pray for an authorisation of non-compliance with that request ... (3) The court shall not grant the authorisation of non-compliance mentioned in the last preceding sub-section unless the applicant shows to the satisfaction of the court that serious hardship would be caused to him by complying with that request: Provided that the assertion that the requisitionee wishes to take possession of the building for his own use or for the use of any member of his family shall not be considered of itself as a hardship for the purposes of this sub-article.” 23. According to the Housing Act, the owner of the premises has a right to compensation, which is calculated and payable pursuant to the criteria established in section 11, which, in so far as relevant, reads as follows: “(1) Subject as hereinafter provided, the compensation payable in respect of the requisition of a building shall be the aggregate of the following sums, that is to say- (a) a sum equal to the rent which might reasonably be expected to be payable by a tenant in occupation of the building during the period for which possession of the building is retained by virtue of the provisions of this Act, under a letting granted immediately before the beginning of that period: Provided that where the building is used by the Director or by a person accommodated therein after its requisition as a dwelling house within the meaning of the Rent Restriction (Dwelling Houses) Ordinance, the rent shall not exceed the fair rent as defined in article 2 of the aforesaid Ordinance; (b) a sum equal to the cost of making good any damage to the building which may have occurred during the period in which possession thereof under requisition was retained (except in so far as the damage has been made good during that period by the occupant of the requisitioned premises or by a person acting on behalf of the Director), no account being taken of damage which, under the provisions of this Act, is the responsibility of the requisitionee; (c) a sum equal to the amount of expenses reasonably incurred, otherwise than on behalf of the Director, for the purpose of compliance with any directions given by or on behalf of the Director in connection with the taking of possession of the building ...” 24. According to Article 2 of the Rent Restriction (Dwelling Houses) Ordinance, “fair rent” means: “i) in respect of an old house, the rent which might reasonably be expected in respect of an old house, regard being had to the average rents prevalent on the 31st March, 1939, as shown on the registers of the Land Valuation Office in respect of comparable dwelling houses in the same or in comparable localities: Provided that where, after the 31st March, 1939, structural alterations or additions in a house, whether old or new, have been carried out which, in the opinion of the Board, have enhanced the rental value of the house and in respect of which or, as the case may be, of a part of which, no compensation has been paid or is payable under the provisions of the War Damage Ordinance 1943, and no amount has been paid or is payable by way of a grant by the Government of Malta, the rent shall be increased by an amount which, in the opinion of the Board, corresponds to the enhancement of the rental value and which shall in no case exceed a return of three and one quarter per centum a year on the capital outlay on the alterations or additions (excluding any interest on loans or in respect of idle capital) or, as the case may be, on the part thereof in respect of which compensation has not been paid and is not payable under the provisions of the War Damage Ordinance 1943, and no amount has been paid or is payable by way of grant by the Government of Malta, in every case as proven by the landlord to the satisfaction of the Board or, in default, as assessed by the Board; and ii) in respect of a new house, a sum equivalent to a return of three per centum a year on the freehold value of the site and of three and one quarter per centum on the capital outlay on construction (excluding any sum which has been paid or is payable by way of a grant by the Government of Malta and any interest on loans or in respect of idle capital) as proven by the landlord to the satisfaction of the Board or, in default, as assessed by the Board: Provided that where a payment under the War Damage Ordinance 1943, is made by or is due from the war damage account in respect of a former building out of which or on the site of which a new house is erected in whole or in part, for the purpose of computing the fair rent of that new house the return on that part of the capital outlay thus contributed by or due from the war damage account shall in no case exceed one year's fair rent of the former building as on 31st March,1939, or three and one quarter per centum for one year on that part of the capital outlay, whichever is the less; (iii) in respect of a scheme house, an annual sum to be determined by agreement ...” | 0 |
dev | 001-112141 | ENG | FIN | ADMISSIBILITY | 2,012 | A.A.S. v. FINLAND | 4 | Inadmissible | David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano | 1. The applicant, Mr A.A.S., is a Finnish national, who was born in 1972. The President of the Section decided of his own motion to grant the applicant anonymity (Rule 47 § 3 of the Rules of Court) and confidentiality of the case file documents (Rule 33 of the Rules of Court). He was represented before the Court by Ms Heini Kotamäki, a lawyer practising in Vantaa. 2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In 1999 the applicant started dating the future mother of his child. They were engaged and moved in together. Their cohabitation broke down in November 2000, before the child was born in April 2001. The mother did not allow the applicant to visit his daughter. 5. On 24 February 2004 the applicant’s paternity was confirmed by the District Court (käräjäoikeus, tingsrätten). The applicant contacted the child welfare authorities in order to have contact with the mother and the child, but in vain. 6. On 26 April 2004 the applicant requested the District Court to grant him visiting rights to his daughter. 7. On 27 April and 7 May 2004 the child’s mother and her current husband requested that a restraining order be issued against the applicant. 8. On 17 May 2004 the applicant attempted to murder the husband of the child’s mother. 9. On 24 June 2004 the District Court issued a restraining order against the applicant. He was not allowed to approach the child, the mother of the child or her husband. This judgment was final. 10. On 16 May 2005 the District Court refused the applicant’s application for visiting rights. It found that the applicant had never met his daughter, who was by then four years old. However, the applicant had had his paternity confirmed and had also tried to establish contact with his daughter. On the basis of these circumstances, visiting rights could be granted to the applicant. As the daughter did not know her father, the meetings needed to be conducted in the presence of the mother. The applicant being detained, these meetings would have to take place in prison, which could not be regarded as a suitable place for initiating the meetings. Considering the existence of the restraining order, the mother could not be obliged to take the child to prison to meet the father. There were thus no grounds for granting visiting rights to the applicant at that moment. Such rights could be granted later when the applicant was released from prison. 11. The applicant did not appeal against this decision. 12. On 14 November 2007 the applicant requested the District Court to change the previous decision so that the daughter would have the right to visit and to maintain contact with her father first under supervision and later unsupervised. The mother opposed such visiting rights. 13. On 17 January 2008 the District Court refused the applicant’s application. It noted that the applicant had been found guilty of the attempted murder of the current husband of his child’s mother. Although a prison sentence as such did not prevent visits from taking place, the applicant had committed the criminal act in a state of diminished responsibility and, while in prison, he had seriously threatened the life of the child’s mother. It was not in the best interest of the child to meet her father, even under supervision. 14. By letter dated 18 February 2008 the applicant appealed against the decision of 17 January 2008 to the Court of Appeal (hovioikeus, hovrätten), reiterating the grounds already presented before the District Court. 15. On 25 February 2008 the applicant was released from prison. 16. On 16 October 2008 the Court of Appeal, after having held an oral hearing on 16 September 2008, rejected his appeal. It found that the child was at the time seven years old. Even though the applicant’s circumstances had improved since his release from prison, the child’s mother still had grounds to fear for her life and the life of the child. Moreover, the applicant had been diagnosed as suffering from mental problems which also gave an additional reason to fear for the child’s safety. In such a situation, the best interest of the child required that the applicant was not granted visiting rights. 17. By letter dated 15 December 2008 the applicant further appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Court of Appeal. 18. On 27 April 2009 the Supreme Court refused the applicant leave to appeal. 19. According to sections 9 and 10 of the Child Custody and Right of Access Act (laki lapsen huollosta ja tapaamisoikeudesta, lagen angående vårdnad om barn och umgängesrätt, Act no. 361/1983), a child has a right to maintain contact with and visit the parent with whom he or she does not live. Custody and right of access must be decided in the best interest of the child. | 0 |
dev | 001-67990 | ENG | MDA | CHAMBER | 2,005 | CASE OF POPOV v. MOLDOVA (No. 1) | 3 | Preliminary objections dismissed (non-exhaustion of domestic remedies, abuse of the right of petition);Violation of Art. 6-1;Violation of P1-1;Not necessary to examine Art. 13;Inadmissible under Art. 3;Pecuniary damage - reserved;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 6. The applicant was born in 1925 and lives in Chişinău. 7. In 1941 the Soviet authorities nationalised the house owned by his parents. In the same year his family was deported to Russia and to Uzbekistan. 8. On 8 December 1992 the Moldovan Parliament enacted Law No. 1225-XII “on the rehabilitation of the victims of the political repression committed by the totalitarian communist occupying regime”. The Law enabled the victims of the Soviet repression to claim restitution of their confiscated or nationalised property. 9. In 1997 the applicant lodged an action with the Centru District Court (Judecătoria Sectorului Centru) by which he sought the restitution of his parents' house. As the former tenants of the house had purchased it from the State, the applicant sought a judicial ruling declaring the purchase contracts null and void. He also requested the eviction of all the occupants of the house. 10. On 25 June 1997 the Centru District Court found in favour of the applicant and ordered the restitution of the house. It declared null and void the contracts by which the house had been sold to the tenants. The court further ordered the Municipal Council to evict all the occupants, and indicated that the Municipal Council was to provide them with alternative accommodation. 11. The Municipal Council, the Ministry of Privatization and the occupants lodged an appeal with the Chişinău Regional Court (Tribunalul Municipiului Chişinău) against the judgment of the Centru District Court. On 5 November 1997 the Chişinău Regional Court dismissed the appeal and upheld the judgment with some textual amendments. Since nobody lodged an appeal in cassation, the judgment of 5 November 1997 became final. 12. In 1999, 2000 and 2001 the bailiff assigned to the case brought proceedings against the Municipal Council for failure to comply with the judgment of 5 November 1997 along with twenty-six similar judgments. On 28 December 1999 the Centru District Court issued a decision by which a fine of 18 Moldovan lei (MDL) (the equivalent of EUR 1.53 at the time) was imposed on the Head of the Housing Division of the Municipal Council for failure to comply with the judgments. On 25 August 2000 the same court issued a decision by which it imposed a fine of MDL 1,800 (the equivalent of EUR 161 at the time) on the Municipal Council. The court found inter alia that the shortage of funds and the lack of available apartments could not be relied upon by the Municipal Council to justify the failure to comply with the above judgments. The Municipal Council lodged an appeal against that decision and on 24 January 2001 the Chişinău Regional Court quashed it on the ground that the shortage of funds and the lack of available apartments had objectively impeded the Municipal Council from complying with the judgments. On 23 February 2001 the Centru District Court issued a decision by which it imposed a fine of MDL 1,800 on the Municipal Council. 13. Between 1997 and 2002 the applicant lodged numerous complaints about the non-enforcement of the judgment of 5 November 1997 with the Municipal Council, Centru District Court and the Ministry of Justice. In their replies, the Municipal Council and the Ministry of Justice informed the applicant that due to the lack of funds for the construction of apartment buildings and due to the lack of available alternative accommodation for the evicted persons, the judgment of 5 November 1997 could not be complied with. 14. In April 2004 four occupants of the applicant's house lodged with the Chişinău Court of Appeal a request for revision of the judgments of 25 June 1997 and 5 November 1997. Relying on Article 449 of the new Code of Civil Procedure (see paragraph 21 below) they argued in their request that new information have become known to them. They also asked the court to extend the deadline for lodging the request in view of the fact that the new information had been obtained by them from the National Archives in April 2004. On 26 May 2004 the Court of Appeal found in favour of the occupants, quashed the judgments of 25 June 1997 and 5 November 1997 and ordered the re-opening of the proceedings in the light of the newly discovered facts. The court also decided to extend the time limit for lodging the request. The new facts relied upon by the Court of Appeal in its judgment were an issue of the Municipal Official Gazette of 1940, and a few certificates from the National Archives and from the Land Register dated April and May 2004. According to these documents, due to a change of numbers of the houses on the street, it was unclear whether the house provided for in the final judgments or another house belonged to the applicant's family. The Court of Appeal did not specify in its judgment whether Article 449 of the new Code of Civil Procedure had a retroactive effect; nor were reasons given for extending the time limit for the lodging of the revision request. 15. The relevant provisions of Law no. 1225-XII of 8 December 1992, as amended on 23 November 1994, read as follows: “Section 12. Restitution of property to persons subjected to repression (1) Any citizen of the Republic of Moldova who has been subjected to political repression and subsequently rehabilitated, shall have returned to him, at his request or at the request of his heirs, any property which was confiscated, nationalised or taken away from him in some other way. ... (5) Any deed of sale and purchase or other form of transfer of a house, building or other construction or goods that have been confiscated, nationalised or taken away from a person who has been a victim of repression may, when made after his rehabilitation, be declared null and void by the courts on an application by the victim or his heirs.” 16. In 1998 a new paragraph was added to the above Article by virtue of Law No. 84-XIV of 8 July 1998, which reads as follows: “(6) Any person evicted from a house that is the subject of a restitution order shall be provided upon his eviction with accommodation on a priority basis by the local public administration authorities, in accordance with the legislation.” 17. Article 325 of the Code of Civil Procedure, in force between 26 December 1964 and 12 June 2003 “the old Code of Civil Procedure”, reads as follows: Final judgments ... can be revised in the following cases: 1) the discovery of new facts or circumstances, that were unknown and could not be known earlier by the parties to the proceedings; Article 426, insofar as relevant, reads as follows: “The creditor or the debtor against whom enforcement proceedings are pending may lodge an appeal against any action which the bailiff takes or refuses to take in the enforcement proceedings. ...” 18. Article 478 of the Civil Code, in force between 26 December 1964 and 12 June 2003 “the old Civil Code”, reads as follows: “Full redress shall be provided by the State in the manner prescribed by law for damage caused to a natural or juristic person by the illegal action of the criminal-investigation organs, the prosecution service or the courts, regardless of whether a public servant from one of those bodies has been at fault.” 19. According to the Review of the Supreme Court of Justice of the Republic of Moldova (Buletinul Curţii Supreme de Justiţie a Republicii Moldova) for February 2003 (page 17), Article 478 of the old Civil Code, along with other relevant provisions of the Moldovan Law, was applicable in the following situations: illegal detention, illegal arrest, illegal indictment, illegal conviction; illegal search, seizure or distraint of goods within criminal proceedings; illegal administrative arrest, illegal fining; illegal operative investigative measures; illegal seizure of accounting documents, money, stamps, blocking of accounts. 20. On 12 June 2003 a new Civil Code entered into force. Article 1404 of the new Civil Code reads as follows: “(1) Damage caused by an unlawful administrative decision or as a result of a failure by a public authority or public official to act upon a request made within the statutory time-limit shall be made good by the public authority .... (2) Individuals shall be entitled to claim general damages caused as a result of the acts foreseen in paragraph 1 of the present Article. (...)” 21. On 12 June 2003 a new Code of Civil Procedure entered into force. Article 449, insofar as relevant, reads as follows: Grounds for revision Revision may be requested: c) When new and essential facts or circumstances have been discovered, that were unknown and could not be known earlier; Article 450, in so far as relevant, reads as follows: A revision request may be lodged: c) within three months from the date on which the concerned person has come to know the essential circumstances or facts of the case which were unknown to him/her earlier and which could not have been known to him/her earlier.... | 1 |
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