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dev | 001-59886 | ENG | GBR | GRANDCHAMBER | 2,001 | CASE OF FOGARTY v. THE UNITED KINGDOM | 1 | No violation of Art. 6-1;No violation of Art. 14+6 | Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney | 10. On 8 November 1993 the applicant commenced employment as an administrative assistant at the United States Embassy in London, in the Foreign Broadcasting Information Service, which is a subsidiary of the Central Intelligence Agency. She was dismissed from her employment in February 1995. Following her dismissal the applicant issued proceedings against the United States Government in the North London Industrial Tribunal, claiming that her dismissal had been the result of sex discrimination contrary to sections 1(1)(a), 4(1)(d) and 6(2)(b) of the Sex Discrimination Act 1975 (see paragraph 15 below). In particular she alleged that she had been the victim of persistent sexual harassment from her supervisor and that working relationships had broken down in consequence. The United States Government defended the claim and did not, at any stage in these proceedings, claim State immunity. On 13 May 1996 the Tribunal upheld the applicant’s complaint. A compensation figure of GBP 12,000 was agreed between the parties. 11. In June 1995, whilst her first claim in the Industrial Tribunal was still pending, the applicant applied for and obtained a fixed term 12 month contract as an administrative assistant within the Foreign Building Operations section of the Embassy. The contract was due to expire in June 1996. In June 1996 and August 1996 (after the finding in her favour by the Industrial Tribunal), the applicant applied for at least two of the following posts at the Embassy of the United States: secretary with the Office of Foreign Litigation of the United States Department of Justice, temporary secretary with the above office and temporary secretary with the International Marketing Centre, which is operated by the United States Foreign Commercial Service. On each occasion her application was unsuccessful. 12. On 15 September 1996 the applicant issued a second application before the Industrial Tribunal. She claimed that the refusal of the Embassy to re-employ her in two of the above posts was a consequence of her previous successful sex discrimination claim, and accordingly constituted victimisation and discrimination within the meaning of sections 4 and 6 of the Sex Discrimination Act 1975. 13. By a letter of 10 January 1997, solicitors acting for the United States notified the Regional Secretary to the Industrial Tribunal that the United States Government intended to claim immunity from the jurisdiction of the Tribunal under sections 1 and 16(1)(a) of the State Immunity Act 1978 (“the 1978 Act”: see paragraph 16 below). The letter enclosed an affidavit sworn by the First Secretary at the Embassy, deposing to the fact that each of the posts for which the applicant had applied were part of the administrative and technical staff of the Embassy, and accordingly fell within the ambit of the immunity imposed by section 16(1)(a) of the 1978 Act. 14. On 6 February 1997 the applicant received the advice of counsel, to the effect that the United States Government were entitled to claim immunity under the 1978 Act, and that once immunity was properly asserted there was no means by which a court or tribunal in the United Kingdom could accept jurisdiction to entertain the application. Accordingly, the applicant was advised that she had no remedy in domestic law. 15. The Sex Discrimination Act 1975 (“the 1975 Act”) creates a statutory cause of action which arises when an employer treats an employee or a potential employee less favourably by reason of her sex (“sex discrimination”), or by reason of the fact that she has taken or intends to take proceedings against any person under the 1975 Act (“victimisation”). Section 1(1) of the Act defines “sex discrimination” as follows: “A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if: (a) on the ground of her sex he treats her less favourably than he treats or would treat a man ...” Section 4(1) of the Act defines “victimisation” as follows: “A person (‘the discriminator’) discriminates against another person (‘the person victimised’) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has: (a) brought proceedings against the discriminator or any other person under this Act, or ... (d) alleged that the discriminator or any other person has committed an act which ... would amount to a contravention of this Act or give rise to a claim under the Equal Pay Act 1970 ...” Section 6 of this Act defines the circumstances in which it is unlawful to discriminate against employees and applicants, on the grounds of sex discrimination or victimisation, as follows: “(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman: (a) in the arrangements he makes for the purpose of determining who should be offered that employment, or ... (c) by refusing or deliberately omitting to offer her that employment.” (2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her ... (b) by dismissing her, or subjecting her to any other detriment.” 16. The United Kingdom’s State Immunity Act 1978 provides, inter alia, as follows: “1(1) A State is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act. … 4(1) A State is not immune as respects proceedings relating to a contract of employment between the State and an individual where the contract was made in the United Kingdom or the work is to be wholly or partly performed there. 4(2) Subject to sub-sections (3) and (4) below, this section does not apply if- (a) at the time when the proceedings are brought the individual is a national of the State concerned; or (b) at the time when the contract was made the individual was neither a national of the United Kingdom nor habitually resident there; or (c) the parties to the contract have otherwise agreed in writing. 4(3) Where the work is for an office, agency or establishment maintained by the State in the United Kingdom for commercial purposes, sub-section (2)(a) and (b) above do not exclude the application of this section unless the individual was, at the time when the contract was made, habitually resident in that State. … 16(1) This Part of this Act does not affect any immunity or privilege conferred by the Diplomatic Privileges Act 1964 or the Consular Relations Act 1968; and:- (a) Section 4 above does not apply to proceedings concerning the employment of the member of a mission within the meaning of the Convention scheduled to the said Act of 1964 or of the member of a consular post within the meaning of the Convention scheduled to said Act of 1968. ...” 17. Article 1 of the Vienna Convention on Diplomatic Relations which is scheduled to the Diplomatic Privileges Act 1964 provides the following definitions: “(b) the ‘members of the mission’ are the head of the mission and the members of staff of the mission; (c) the ‘members of staff of the mission’ are the members of diplomatic staff or the administrative and technical staff, and of the service staff of the mission. ... (f) the ‘members of the administrative and technical staff’ are the members of the staff of the mission employed in the administrative and technical service of the mission.” 18. The 1972 European Convention on State Immunity (“the Basle Convention”), entered into force on 11 June 1976 after its ratification by three States. It has now been ratified by eight States (Austria, Belgium, Cyprus, Germany, Luxembourg, the Netherlands, Switzerland and the United Kingdom) and signed by one other State (Portugal). It entered into force in respect of the United Kingdom on 4 October 1979, and provides, inter alia: Article 5 “1. A Contracting State cannot claim immunity from the jurisdiction of a Court of another Contracting State if the proceedings relate to a contract of employment between the State and an individual where the work has to be performed in the territory of the State of the forum. 2. Paragraph 1 shall not apply where: (a) the individual is a national of the employing State at the time when the proceedings were brought; (b) at the time when the contract was entered into the individual was neither a national of the State of the forum nor habitually a resident in that State; or (c) the parties to the contract have otherwise agreed in writing, unless, in accordance with the law of the State of the forum, the Courts of that State have exclusive jurisdiction by reason of the subject-matter. 3. Where the work is done for an office, agency or other establishment referred to in Article 7, paragraphs 2(a) and (b) of the present article apply only if, at the time the contract was entered into, the individual had his habitual residence in the Contracting State which employs him.” Article 32 “Nothing in the present Convention shall affect privileges and immunities relating to the exercise of the functions of diplomatic missions and consular posts and of persons connected with them.” 19. The International Law Commission’s Draft Articles on Jurisdictional Immunities of States and Their Property, submitted to the General Assembly of the United Nations ((1991), II(2) YBILC 13), provides at Article 11, paragraph 1, that: “a State cannot invoke immunity ... in a proceeding which relates to a contract of employment between the State and an individual for work performed in the territory of [the host] State.” However, this provision is specifically disapplied where “the subject of the proceedings is the recruitment, renewal of employment or reinstatement of the individual” and where “the employee has been recruited to perform functions closely related to the exercise of governmental authority”. Although there is no explicit reference to employment at diplomatic or consular missions in these provisions, the commentary indicates that the latter exception was intended to apply in such a context and that all employees at such missions would be precluded from bringing suit on the basis of State immunity. 20. The Committee on State Immunity of the International Law Association adopted in 1982 its Draft Convention on State Immunity, Article IIIC of which dealt with contracts of employment and was similar in its terms to Article 5 of the Basle Convention. An amendment was added to Article IIIC at the ILA’s 1994 conference, providing for immunity to be granted where “the employee was appointed under the public (administrative) law of the foreign state such as, inter alia, members of the mission, diplomatic, consular or military staff”. In the explanatory commentary on the amendment the Committee stated that it wished “to make clear that the employment relationship of any and all diplomatic and consular staff and other members of the mission should be immune from the jurisdiction of the courts of the forum state”. | 0 |
dev | 001-78391 | ENG | UKR | CHAMBER | 2,006 | CASE OF SHEVTSOV v. UKRAINE | 4 | Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Violation of P1-1;Not necessary to examine Art. 13;Remainder inadmissible;Just satisfaction dismissed (out of time) | Peer Lorenzen | 4. The applicant was born in 1955 and lives in Lugansk. 5. On 8 August 2001 the Leninskyy District Court of Lugansk ordered the State Enterprise “Luganskyy Stankobudivelnyy Zavod” to pay the applicant UAH 2,575.34 in salary arrears and compensation for the delay in its payment. 6. On 13 September 2001 the Leninskyy District Bailiffs' Service of Lugansk instituted enforcement proceedings. 7. On 13 November 2002 the Bailiffs' Service informed the applicant that the decisions in his favour had not been executed due to the substantial number of enforcement proceedings against the debtor and the debtor's lack of funds. 8. On 19 April 2005 the applicant was paid the amount due to him in full. 9. In April 2002 the applicant instituted proceedings in the Leninskyy District Court of Lugansk against the same company, seeking compensation for its failure to pay him the judgment debt of 8 August 2001. 10. On 8 July 2002 the court rejected the applicant's claim as unsubstantiated. On 5 September 2002 and 28 January 2003, respectively, the Lugansk Regional Court of Appeal and the Supreme Court upheld the decision of 8 July 2002. 11. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18 and 39-41, 27 July 2004). | 1 |
dev | 001-5321 | ENG | TUR | ADMISSIBILITY | 2,000 | CELEBI v. TURKEY | 4 | Inadmissible | Gaukur Jörundsson;Wilhelmina Thomassen | The applicant is a Turkish national, born in 1939 and living in Istanbul. He is represented before the Court by Mr Ahmet Akkuş, a lawyer practising in Istanbul. A. The facts of the case, as submitted by the parties, may be summarised as follows. 1. Applicant’s version of the facts The applicant used to live and work as a farmer in the Molla Hüseyin hamlet of the Pınarbaşı village attached to the Bismil district of the province of Diyarbakır. On account of terrorist activities in the state of emergency region the villagers were requested to be village guards and the villages of those who did not agree to be village guards were evacuated and destroyed by security forces. The applicant was also requested to be a village guard. As he did not agree he received a warning from the security forces in the region. On 14 November 1994 the commander of the Gendarme Station in the Ahmetli village arrived in the applicant’s village accompanied by soldiers and requested the applicant either to agree to be a village guard or to leave the village. On 30 November 1994 the applicant, along with 13 members of his family, left his home and village since he was continually threatened with death. The applicant arrived in his son’s house in Istanbul and telephoned his brother who lived in his village. He learned that his home and its contents had been destroyed by security forces in the evening of the day he had abandoned his village. The applicant and his family are currently living in Istanbul. 2. Government’s version of the facts The authorities began an investigation immediately after they had learned of the applicant’s allegations. In this respect, on 27 February 1998 the Gendarme Station Commander of the Ahmetli village took statements from the applicant’s brothers, Mehmet Çelebi and Alaattin Çelebi, who are currently living in the applicant’s village. Mehmet Çelebi stated: “I know İsmet Çelebi. He is my elder brother. Until 1994 we lived together in the same village. At the relevant time, his son Murat Çelebi went to Istanbul to find work. We learned that he had joined the mountain cadre of the PKK. I do not know whether my brother was involved in the PKK terrorist organisation. After his son had [joined the PKK] he wanted to emigrate to Istanbul. He did not tell us why he wanted to go Istanbul. He was thinking of finding a proper and better job. In November 1994 he emigrated to Istanbul of his own will. There has never been a [military] operation in our village neither before nor after [November 1994]. Security forces did not force us to abandon our village. Nobody beat or threatened us in order to force us to evict the village. My brother İsmet Çelebi was neither insulted nor beaten by any member of the security forces. We are not village guards. We were not subjected to pressure to agree to be village guards. We are living in peace in our village. It is not true that my brother İsmet left the village on account of the pressure or torture inflicted on him since he did not agree to be a village guard. His house was neither burned nor destroyed by the security forces. His house is in a good state. However, I removed the wooden parts of his house (doors, windows and the roof) two years after he had left the village, considering that [my brother] would not return to the village. Some of the wood is in my stable. I used some of them. My brother İsmet Çelebi knows that I removed the wooden parts of [his house] and I do not understand why he had slandered [the security forces]. However, I consider that he might have been tempted to lie by the PKK or his son in the mountain [cadre]. None [of the houses] has been burned or destroyed. Nobody was beaten, insulted or tortured in our village. We were not forced to agree to be village guards and we are still not village guards. I can return the wooden parts of my brother’s house if he wants. They are at my place. I removed the wooden parts in order to protect them from decaying. My brother has 150 acres of land in the village. We are using his land and paying him a rent. If my brother wants to return to the village he may live with us. We are not under pressure of the security forces...” Alaattin Çelebi stated: “İsmet Çelebi is my elder brother. We are currently living in the Molla Hüseyin hamlet of the Pınarbaşı village attached to the Bismil district in the province of Diyarbakır. We are dealing freely with our works in the village. My brother abandoned the village four years ago of his own will and emigrated to Istanbul. I do not know why he emigrated. In 1994 his son Murat Çelebi went to Istanbul to work and later joined the mountain cadre of the PKK. Following this incident my elder brother emigrated to Istanbul. He emigrated of his own will. He was not subjected to pressure or oppression by security forces. There has not been an operation before or after November 1994. We are not village guards. It is a lie that we were subjected to pressure to agree to be village guards. We still are not village guards. Me and my brother Mehmet Çelebi are taking care of our elder brother İsmet Çelebi’s house and fields since he emigrated to Istanbul. Me and Mehmet disassembled the wooden parts of İsmet Çelebi’s house. The other parts of the house are currently as they used to be [in the past]. My brother Mehmet and I are cultivating [İsmet]’s fields and sending the rent to him. It is absolutely a lie that we are subjected to pressure or oppression by security forces. Everybody is living freely and getting on with his own work. My elder brother İsmet Çelebi left the village on his own will. The [allegation] that he was subjected to pressure to agree to be a village guard is a lie...” On 1 March 1998 the Ahmetli District Gendarme Station Commander and the Deputy Commander went to the applicant’s village to conduct a survey of the scene of the incident. A survey minute was drawn up and signed by the Commander, the Deputy Commander, the applicant’s two brothers, Mehmet and Alaattin Çelebi, and three inhabitants of the village. The survey minute stated: “On 1 March 1998 [we] went to [İsmet Çelebi]’s village in order to carry out an investigation following his application to the European Commission of Human Rights. [İsmet Çelebi]’s house was found. [We], along with his brother Mehmet Çelebi, arrived to the house İsmet Çelebi had abandoned. Subsequent to the examination, it was observed that no demolition, burning or destruction had occurred. Mehmet Çelebi stated that he had disassembled the wooden doors, windows and the roof in order to protect them from decaying. It was further observed that some of the disassembled materials were used [by Mehmet Çelebi], some were kept in his stable, the wooden materials were in a good state and did not bear any trace of fire. The villagers and his brothers were asked about the alleged acts complained of. They all stated that no operation had been carried out [in the village] and no destruction, burning or violence had occurred. [They further stated] that there was no village guard in the village and nobody was forced to agree to be a village guard. According to the statements of his brothers and the villagers it was understood that [İsmet Çelebi] had left the village on his own will...” On 1 March 1998 the Ahmetli District Station Commander sent a letter to the Diyarbakır Provincial Gendarme Commanding informing it of the conclusion of the investigation carried out. He stated that on 14 March 1994 no operation was carried out in the Molla Hüseyin hamlet of the Pınarbaşı village, the villagers were not forced to agree to be village guards and there was no village guard in the village at the present time. He further stated that the records kept by the authorities indicated that [İsmet Çelebi] had never applied to or lodged complaints with the [administrative or judicial] authorities. On 2 March 1998 the Bismil Public Prosecutor, accompanied by an expert and the applicant’s brother Alaattin Çelebi, conducted a survey of the applicant’s house. He noted in his report that the applicant’s house had not been not destroyed or burned but its wooden parts had been removed and used by his brother Alaattin Çelebi. He further noted that 24 pieces of wooden materials removed from the applicant’s house were kept in his brother’s stable and that they were in good condition and usable. On the same day, the Public Prosecutor took statements from two inhabitants of the applicant’s village, Mehmet Demir and İzzet Oral. They told the Public Prosecutor that the security forces had not destroyed the applicant’s house but his brother had removed its wooden parts. They further stated that the applicant had left the village of his own will as well as on account of the pressure from the PKK. On 2 March 1998 the Bismil Public Prosecutor and the District Governor sent letters to the Bismil Gendarme Unit Command informing it that the applicant had not lodged an application as regards his complaints that he was forced to agree to be a village guard and that his house was destroyed by the security forces. On 10 March 1998 the Bismil Public Prosecutor issued a decision to discontinue the criminal proceedings against the Ahmetli Station Commander, Rahmi Canlı, subsequent to the investigation carried out into the applicant’s allegations. B. Relevant domestic law and practice 1. Administrative liability Article 125 of the Turkish Constitution provides as follows: “All acts and decisions of the administration are subject to judicial review... The administration shall be liable to indemnify any damage caused by its own acts and measures.” The above provision is not subject to any restrictions even in a state of emergency or war. The latter requirement does not necessarily require proof of the existence of any fault on the part of the administration, whose responsibility is of an absolute, objective nature, based on a concept of collective liability and referred to as the theory of “social risk”. Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist instigators when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property. The principle of administrative liability is reflected in the additional section 1 of Law no. 2935 of 25 October 1983 on the State of Emergency, which provides: “... actions for compensation in relation to the exercise of the powers conferred by this Law are to be brought against the administration before the administrative courts.” 2. Criminal responsibility It is an offence under the Turkish Criminal Code - to make an unlawful search of an individual’s home (Articles 193 and 194); - to commit arson (Articles 369, 370, 371, 372) or aggravated arson if human life is endangered (Article 382); - to commit arson unintentionally by carelessness, negligence or inexperience (Article 383); or to damage another’s property intentionally (Articles 516 et seq.). For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings. If the suspected authors of the contested acts are military personnel, they may also be prosecuted for causing extensive damage, endangering human life or damaging property, if they have not followed orders in conformity with Articles 86 and 87 of the Military Code. Proceedings in these circumstances may be initiated by the persons concerned (non-military) before the competent authority under the Code of Criminal Procedure, or before the suspected persons’ hierarchical superior (sections 93 and 95 of Law no. 353 on the Constitution and Procedure of Military Courts). If the suspected author of a crime is an agent of the State, permission to prosecute must be obtained from a local administrative council (the Executive Committee of the Provincial Assembly). The local council decisions may be appealed to the Supreme Administrative Court; a refusal to prosecute is subject to an automatic appeal of this kind. 3. Provisions on compensation Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts. Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing. Damage caused by terrorist violence may be compensated out of the Aid and Social Solidarity Fund. | 0 |
dev | 001-110253 | ENG | TUR | CHAMBER | 2,012 | CASE OF İLBEYI KEMALOĞLU AND MERIYE KEMALOĞLU v. TURKEY | 2 | Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award | András Sajó;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre | 4. The applicants were born in 1965 and 1974 respectively, and live in İstanbul. They are the parents of Atalay Kemaloğlu, who died in 2004, when he was seven years old. 5. On 22 January 2004 Istanbul was hit by a heavy snow storm. Consequently, upon the instructions of the Ministry of Education, schools in Istanbul broke up for the winter beak a day earlier than scheduled. On that day, Atalay had gone to his primary school on the municipality’s shuttle, which travelled between his home and the school. After the school bulletins had been distributed, classes were dismissed at the beginning of the afternoon, before the normal school day was over. 6. According to the information in the case file, Atalay had not enrolled for the paid school bus, but was using the shuttle that was operated for free by the municipality. As the early dismissal of the classes had not been notified to the municipality, the shuttle did not come when the school was closed. Atalay therefore tried to walk back home, which was 4 km away from his school. Late in the afternoon, when he did not return from school, the applicants called the police. However, it was not possible to find Atalay. His body was found the following day, frozen near a river bed. 7. Following the incident, the Primary School Inspectors’ Presidency of the Istanbul Education Directorate (İstanbul Valiliği İl Milli Eğitim Müdürlüğü İlköğretim Müfettişleri Başkanlığı) initiated an investigation, during which the inspectors took the statement of the driver of the municipality’s shuttle. He explained that on the day of the incident he had taken seven students from their homes and had left them in front of the school. Every day, he took them back around 5.30 p.m. On that day, no one informed him that the school would be closed at 2.00 p.m. Therefore, when he went to the school, everyone had already left. The inspectors prepared a report on 27 January 2004 and found that the deputy headmaster of the school had been at fault for not informing the municipality about the early closure of the schools. On 18 February 2004 the Presidency concluded that the deputy headmaster of the school had been at fault for neglecting to inform the municipality’s shuttle service of the early dismissal of the classes. It accordingly decided to issue a warning to the deputy headmaster as a disciplinary sanction. 8. On 6 August 2004 the applicants filed two separate actions with the Istanbul Administrative Court against the Ministry of Education, Yenidoğan Municipality and Istanbul Municipality. Alleging that their son had lost his life due to the negligence of the domestic authorities, the first applicant requested 375,000,000,000 Turkish liras (TRL) (approximately 207,000 euros (EUR) at the time) and the second applicant TRL 324,000,000 (approximately EUR 188,000 at the time) covering both pecuniary and non-pecuniary compensation. They also requested legal aid for the court fees. 9. On 30 September 2004 the Istanbul Administrative Court requested the applicants to complete the case file by submitting relevant documents in support of their legal aid claim within one month. 10. In support of their legal aid claim, both applicants submitted to the Istanbul Administrative Court certificates from the office of the headman (muhtarlık) attesting to their indigence, certificates from the District Governor confirming that they did not own any immovable property and certificates indicating that they were in debt to the Tax Office. 11. On 8 June 2005 the Istanbul Administrative Court dismissed the applicants’ request for legal aid without giving any specific reasons. 12. Subsequently, on 8 August 2005 the applicants were notified that they were required to pay TRL 5,072,600,000 (approximately EUR 3,000 at the time) and TRL 4,384,100,000 (approximately EUR 2,600 at the time) respectively for the court fees within one month in order for the proceedings to be continued. 13. On 29 December 2005 the Istanbul Administrative Court decided to discontinue the proceedings as the applicants had failed to pay the relevant court fees. 14. In the meantime, on 27 February 2004 the applicants filed a criminal complaint with the Ümraniye Public Prosecutor against the school headmaster, the deputy headmaster and Atalay Kemaloğlu’s class teacher. On an unspecified date, pursuant to Law no. 4483 (Law on the Prosecution of Civil Servants and Public Officials) the Ümraniye Public Prosecutor referred the file to the Ümraniye District Governor’s office and requested authorisation to prosecute the accused persons. 15. On 16 April 2004 the Ümraniye District Governor refused to authorise the public prosecutor to initiate criminal proceedings against the school headmaster, the deputy headmaster and the class teacher, on the basis of a report prepared by the headmaster of the Ümraniye High School, who stated that no fault could be attributed to the accused persons. 16. On 13 May 2004 the applicants lodged an objection against the decision of the Ümraniye District Governor’s office. 17. On 25 June 2004 the Istanbul Regional Administrative Court annulled the decision of the Ümraniye District Governor and held that there was sufficient evidence in the case file to initiate criminal proceedings against the accused headmaster, deputy headmaster and class teacher. 18. Accordingly, on 4 October 2004 the Ümraniye Public Prosecutor filed an indictment with the Ümraniye Criminal Court against S.Ç (the deputy headmaster of the school), S.Ö. (Atalay’s class teacher) and Ö.Ö (the school headmaster), accusing them of misconduct in office under Article 230 of the former Criminal Code. The applicants joined the criminal proceedings as civil parties and reserved their right to claim compensation. 19. During the proceedings, the court heard the defence statements of the accused. Atalay’s class teacher, Ms S.Ö., maintained that a day before the incident she had told her students that their parents should be present on 22 January 2004 as school bulletins would be distributed. The court also obtained an expert opinion from a psychologist, who stated that a seven year old child could not be expected to find effective solutions when faced with extraordinary situations. In this connection, she stated that the child could not have foreseen the dangers he would face when he tried walking home alone in the heavy snow storm. 20. On 28 June 2006 the Ümraniye Criminal Court acquitted the accused persons of the charges against them. In its decision, the court held that the death of Atalay had not been the result of a deliberate action. The reasoning stated that there were 2,400 pupils in the school, and that it could not be considered reasonable to expect the school authorities to control where the pupils went after the classes were dismissed. The court further held that in order to conclude that there had been misconduct in office, the public officer had to have wilfully neglected performing his duty. According to the court, in the instant case the school authorities could not be reasonably expected to foresee that Atalay would be frozen to death on his way back home. The court also decided that it did not have jurisdiction to examine whether or not there had been a service-related fault (hizmet kusuru) in the circumstances of the present case. 21. On 11 November 2010 the Court of Cassation quashed the judgment of the Ümraniye Criminal Court, without examining the merits of the case, for procedural reasons, namely due to the absence of the signature of the court’s clerk on the minutes of a hearing which had been held on 2 February 2005. The case file was accordingly remitted to the Ümraniye Criminal Court. 22. On 13 May 2011 the Ümraniye Criminal Court once again acquitted S.Ç., S.Ö and Ö.Ö of the charges against them on the basis of the same reasoning as given in its previous judgment of 28 June 2006. 23. The appeal proceedings are still pending before the Court of Cassation. 24. A full description of the relevant domestic law regarding legal aid may be found in Mehmet and Suna Yiğit v. Turkey, no. 52658/99, §§ 19-22, 17 July 2007 25. In August 2004, the minimum wage in force was TRL 444,150,000 (approximately EUR 245 at the time) a month. | 1 |
dev | 001-76066 | ENG | POL | CHAMBER | 2,006 | CASE OF BYRZYKOWSKI v. POLAND | 2 | Preliminary objection joined to merits (non-exhaustion of domestic remedies);Violation of Art. 2 (procedural aspect);Not necessary to examine Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 4. The applicant was born in 1974 and lives in Wroclaw. 5. On 11 July 1999 the applicant’s 27-year-old wife was about to give birth to their child. She was admitted to a hospital of the Wrocław Medical Academy at 8 p.m. As there was no progress in the delivery and the child showed signs of heart distress, on 12 July 1999 at 10 a.m. a decision was taken to perform a caesarean section. Epidural anaesthesia was administered, as a result of which she went into a coma. All resuscitation efforts failed. The applicant’s wife was subsequently transported to the intensive therapy unit, where she died on 31 July 1999. 6. A child H. was born by a caesarean section, suffering from serious health problems, mostly of a neurological character. He requires permanent medical attention. 7. On 31 July 1999 the applicant, represented by his father, requested that an investigation of the causes of his wife’s death be instituted. His request was complied with on the same day. On 2 August 1999 a post mortem was carried out. A medical opinion prepared immediately thereafter noted, among others, the necessity of obtaining a medical expert opinion as to the circumstances which had led to her death. 8. On 11 August 1999 the Wrocław-Krzyki District Prosecutor requested that the medical records of the applicant’s wife should be submitted to the prosecuting authorities. 9. On 19 August 1999 the applicant was interviewed by the Wrocław-Krzyki District Prosecutor. 10. On 6 October 1999 the Wrocław-Krzyki District Court, at the request of the District Prosecutor, released the physicians who had dealt with the delivery from their obligation to respect professional secrecy in order to obtain their testimony. 11. On 15, 17, 18, 19 November 1999 the District Prosecutor questioned medical staff dealing with the delivery and treatment of the applicant’ s wife as to the circumstances of her death. 12. In a letter submitted on 15 December 1999 the applicant requested the District Prosecutor to hear additional witnesses. On 17 December 1999 the Wroclaw-Krzyki District Prosecutor questioned three other witnesses. 13. On 29 December 1999 the District Prosecutor, having regard to the results of the inquiry, instituted a criminal investigation into a suspected offence of manslaughter, punishable under Article 155 of the Criminal Code. 14. On 30 December 1999 the District Prosecutor decided to obtain a medical expert opinion from the Lublin Institute for Forensic Medicine as to the treatment administered to the applicant’s wife. 15. On 4 and 10 February and 17 March 2000 the District Prosecutor heard further witnesses. 16. In a letter of 10 February 2000 the Lublin Institute of Forensic Medicine returned the case-file, explaining that it would not be able to prepare the opinion. On 30 March 2000 the District Prosecutor decided to obtain a medical expert opinion from the Kraków Institute of Forensic Medicine. Apparently the investigations were later stayed. 17. In October 2000 the District Prosecutor resumed the investigations, having obtained an expert opinion prepared by four medical experts of the Kraków Institute of Forensic Medicine. 18. By a decision of 31 October 2000 the District Prosecutor discontinued the investigations considering, in the light of the medical records, the testimony of the witnesses and the medical expert opinion, that the medical staff concerned had no case to answer. However, on the applicant’s appeal, the investigations were subsequently resumed by a decision of 5 January 2001. The Wroclaw Regional Prosecutor considered that the investigations had been discontinued prematurely, without all necessary evidence having been taken and without the facts relevant for the decision having been sufficiently established. He decided that the anaesthesiologists dealing with the delivery should be questioned again in order to elucidate discrepancies between their testimony and that further experts should be appointed with a view to establishing whether the conditions of the delivery could have had a negative impact on the health condition of the applicant’s son. 19. On 7 and 19 February 2001 the District Prosecutor questioned again the two anaesthesiologists involved in the treatment of the applicant’s wife. 20. On 20 February 2001 the District Prosecutor decided to obtain another expert opinion from the Łódź Institute of Forensic Medicine. 21. Four experts of the Łódź Institute for Forensic Medicine prepared an opinion dated 28 June 2001 and submitted it to the District Prosecutor on 23 August 2001, noting, inter alia, that the applicant’s son had died as a result of the damage he suffered during the delivery. The experts concluded, referring to the medical records of the case, that no criminal offence had been committed, the failure to reverse the result of anaesthesia not being a consequence of medical negligence. 22. In a letter dated 29 August 2001 the Łódź Institute of Forensic Medicine informed the District Prosecutor about an editorial error in its opinion in so far as it contained a reference to the death of the applicant’s son. 23. On 10 September 2001 the District Prosecutor questioned another witness. In a letter submitted on the same day the applicant and his father contested the medical expert opinion of 28 June 2001 containing among other things the wrong information about the death of the applicant’s son as a result of damage he had suffered during the delivery. They submitted that this error indicated that the opinion had not been prepared with the requisite care and attention to detail. 24. On 17 September 2001 the District Prosecutor decided to obtain an additional expert opinion from the Poznań Institute of Forensic Medicine. On 30 November 2001 this opinion was submitted. It further contained answers to the 32 questions posed by the applicant. 25. On 6 December 2001 the Wrocław District Prosecutor discontinued the investigations. In his decision he relied on the medical expert opinion which stated that the treatment of the applicant’s wife and the handling of the delivery, i.e. the caesarean section, epidural anaesthesia and reanimation had been carried out properly and had been adequate given her state of health and the circumstances. They could not have contributed to the deterioration of her condition or led to her subsequent death. 26. On 21 January 2002 the applicant appealed against the decision of 6 December 2001. 27. On 23 May 2002 the Wrocław-Krzyki District Court upheld the contested decision. It considered that the evidence obtained during the investigation had not provided any grounds on which to bring charges against the medical staff. It also referred to four medical expert opinions (from Wrocław, Poznań, Kraków and Łódź) according to which the medical treatment of the applicant’s wife during and after the delivery of birth was not improper. Consequently, no action or omission of a criminal character could have caused her death. 28. On 25 July 2002 the Wrocław-Krzyki District Court rejected the applicant’s appeal of 17 July 2002 against the decision of 23 May 2002. 29. On 10 December 2002 the District Prosecutor, at the applicant’s request, questioned a new medical expert in connection with the circumstances of the death of the applicant’s wife. 30. On 1 March 2003 the District Prosecutor resumed the investigations, which had been terminated by the decision of 6 December 2001. 31. On 26, 28 March, 24, 28 April, 29 May and 3 June 2003 the District Prosecutor questioned the medical staff involved in the dealing with the delivery. 32. On 4 April 2003 the Dolny Sląsk Chamber of Physicians submitted to the prosecuting authorities two expert opinions prepared for the purposes of disciplinary proceedings which were pending at that time (see §§ 39 and 40 below). 33. On 9 June 2003 the District Prosecutor ordered another expert opinion from the Białystok Institute of Forensic Medicine. Subsequently, it urged the Institute several times to accelerate the preparation of the opinion. On 14 October 2004 the opinion, prepared by four experts, was submitted to the District Prosecutor. The opinion also contained answers to the 32 questions posed by the applicant. 34. On 3 December 2004 the District Prosecutor interviewed one witness. 35. On 1 December 2004 the applicant submitted an unsolicited expert opinion prepared by two physicians. 36. On 8 December 2004 the District Prosecutor discontinued the investigations. He had regard, inter alia, to the medical expert opinion prepared by experts from the Białystok Institute for Forensic Medicine, which had stated that the caesarean section, epidural anaesthesia and reanimation had been adequate, given to the condition of the applicant’s wife and the circumstances. 37 On 23 December 2004 the applicant appealed against this decision. 38. On 24 March 2005 the Wrocław Regional Prosecutor decided to quash the contested decision. The Prosecutor observed that the evidence gathered so far in the case was incomplete in that it did not allow for the establishment of the relevant facts. Certain facts relevant for the assessment of the case had to be established, in particular the kind and exact amounts of medication administered to the applicant’s wife before the caesarean section. Further, certain discrepancies between various depositions of the anaesthesiologist F. M. had to be elucidated. It also seemed that there might have been some errors in the medical records which should be further investigated. 39. On 14, 29 April and 13 May 2005 the District Prosecutor heard witnesses. On 13 May 2005 experts from Warsaw who had prepared the opinion for the purposes of the disciplinary proceedings pending before the Regional Chamber of Physicians were also questioned. On 24 May and 28 July 2005 other witnesses were heard. 40. On an unspecified date in autumn of 2005 the prosecuting authorities requested that an additional expert opinion be prepared by the Institute of Forensic Medicine of the Białystok Medical Academy. This opinion is currently being prepared and the file of the investigations has been sent to the Institute. 41. The proceedings are pending. 42. On 30 August 1999 the applicant submitted a request to the Regional Chamber of Physicians to initiate disciplinary proceedings against the anaesthetist, F.M. On 26 October 1999 the Dolny Śląsk Chamber of Physicians started an inquiry concerning the causes of death of the applicant’s wife. 43. On 10 November 1999 the inquiry was stayed, the Chamber having regard to the parallel criminal investigations which were being conducted at that time by the District Prosecutor. 44. On 16 October 2002, after the decision of the District Prosecutor of 6 December 2001 concerning the discontinuance of the criminal proceedings had become final, the proceedings were resumed. 45. On 11 December 2002 the Dolnośląska Chamber of Physicians requested additional expert opinions from two experts from Warsaw. The opinions were submitted on 7 February 2003. 46. On 25 February 2003 the Supreme Chamber of Physicians decided to transmit the disciplinary case concerning the death of the applicant’s wife to the Poznań Regional Chamber of Physicians. 47. On 3 June 2004 the Wielkopolska Chamber of Physicians transmitted the case-file to the Dolny Śląsk Regional Medical Court. 48. On 25 April 2005 the Regional Medical Court in Wroclaw stayed the proceedings against F.M. pending the outcome of the further criminal investigations concerning the death of the applicant’s wife. It had regard to the fact that on 24 March 2005 the Wroclaw-Krzyki District Prosecutor had allowed the applicant’s appeal against a decision of 8 December 2005 to discontinue the proceedings (see § 38 above). The court further observed that a motion to impose disciplinary sanctions had been submitted to that court by the Agent for Disciplinary Matters only on 17 February 2005. The court noted that the disciplinary liability of the physician concerned had become prescribed under the relevant provisions of the Chamber of Physicians Act. However, as the criminal investigations were still pending, the period of prescription “could be prolonged”, pursuant to the provisions of Article 51 (2) of that Act. 49. The proceedings are pending. 50. On 11 July 2002 the applicant, acting also on behalf of his son H., lodged a compensation claim against the hospital and against the hospital’s insurance company with the Wroclaw Regional Court. He claimed a monthly pension for the child, just satisfaction for non-pecuniary damage they had suffered as a result of death of their mother and wife, and compensation for the funeral costs. He argued that his wife’s death and his son’s health problems had resulted from negligence in the handling of the anaesthesia administered to his wife during the birth. In passing, he observed that the experts who had prepared the opinion for the criminal investigation had stated that his son had also died; this was an example, in his view, of how badly the opinion had been prepared. 51. On 9 September 2002 the applicant was partly exempted from a court fee. 52. At a hearing held on 20 December 2002 the Wroclaw Regional Court ordered that the full medical records of the applicant’s wife’s case be submitted in evidence and that the file of the criminal investigations which were pending at that time be also submitted. 53. On 24 January 2003 the Wrocław Regional Court held a hearing. The applicant informed the court that the disciplinary proceedings were pending before the Regional Chamber of Physicians. The court decided to request information about the state of the proceedings and any possible expert opinions from the Chamber. 54. In February 2003 the applicant requested the court to admit in evidence an expert opinion he had privately commissioned before the lodging of the civil case (see § 35 above). This request was apparently refused. 55. By a decision of 7 April 2003 the Wrocław Regional Court stayed the proceedings until the end of the disciplinary proceedings. The court referred to two opinions which had been prepared in these proceedings and which indicated that it was likely that certain irregularities had indeed taken place when handling the delivery. The court considered that in these circumstances it was reasonable to stay the proceedings until the disciplinary proceedings had come to an end as their outcome was relevant for the further conduct and, possibly, the outcome of the civil case. 56. The applicant appealed, arguing, inter alia, that the disciplinary court of the Chamber of Physicians which could eventually be called upon to give a ruling in this case, was composed of four physicians and just one judge, which rendered these proceedings inherently unfair in that it was unlikely that it would be fully impartial. 57. By a decision of 25 April 2003 the Wroclaw Regional Court rejected the appeal as having been lodged outside the applicable time-limit. 58. By a letter of 9 September 2003 the applicant applied for the resumption of the stayed proceedings, arguing that in any event the civil court was not bound by the conclusions of the organs of the professional association of physicians. 59. By a decision of 9 October 2003 the Regional Court refused to resume the stayed proceedings on the ground that a team of specialists had been charged with the preparation of the opinion for the purpose of the disciplinary proceedings in order to assess the medical procedures followed in the case and such opinions had already been partly prepared. Their conclusions indicated possible negligence on the part of the medical staff involved; in addition, the medical records of the applicant’s late wife had been included in the files of the disciplinary proceedings, which were already well advanced. Hence, a decision of the disciplinary court could influence the judgment to be given in the civil proceedings. 60. On 2 March 2004 the applicant requested the civil court to take measures in order to have the disciplinary proceedings accelerated. In a letter of 1 April 2004 the Chamber of Physicians in Wroclaw informed the Wroclaw Regional Court that the proceedings were still pending, that on 15 April 2004 charges would be brought against F.M. and that the files of the case would be sent, together with a motion for the imposition of a disciplinary penalty, to the Disciplinary Court of the Regional Chamber. 61. On 16 April 2004 the Regional Court informed the applicant that the civil proceedings would be resumed after the disciplinary proceedings had come to an end. 62. On 3 June 2004 a motion to have a disciplinary penalty imposed on F.M. was submitted to the Regional Disciplinary Court. 63. By a letter of 23 November 2004, in reply to a query submitted by the civil court on 8 November 2004, the Regional Agent for Disciplinary Matters of the local Chamber of Physicians reiterated that on 3 June 2004 the case had been submitted to the disciplinary court. 64. By a letter of 21 February 2005 the applicant requested the civil court to resume the proceedings. The applicant emphasised that there had been no progress whatsoever in the disciplinary proceedings since June 2004, when the disciplinary case had been brought to the court. This delay could only be attributed to the unwillingness of the Chamber of Physicians to conduct an effective investigation into the medical negligence which was arguably involved in his case. He invoked the possibility that any disciplinary liability would be prescribed as a result of the lapse of time. 65. On 7 June 2005 the Wroclaw Regional Court dismissed the applicant’s request for the proceedings to be resumed, considering that they should remain stayed until the criminal proceedings pending before the Wrocław-Krzyki District Prosecutor were completed. 66. The proceedings are pending. 67. The Chambers of Physicians’ Act of 17 May 1989 established Chambers of Physicians as a professional organisation of physicians. Membership of a local Chamber is mandatory. The disciplinary responsibility of physicians for professional misconduct may be determined in proceedings before the organs of the Chambers, i.e. agents for disciplinary matters and disciplinary courts. Agents and members of the courts for each region are elected by members of a local chamber. The Chief Agent for Disciplinary Matters and the Principal Court are elected by the National Congress of Physicians, composed of delegates of local chambers. 68. Pursuant to Article 42 of the Act, the following penalties may be imposed in disciplinary proceedings: a warning, a reprimand, suspension of the right to practise medicine for a period from six months to three years and striking off the register of physicians. 69. The procedure to be followed in disciplinary proceedings is governed by the Order on Procedure in Disciplinary Proceedings issued by the Minister of Health on 26 September 1989. 70. Under this Order, the agent for disciplinary matters must investigate the matter if he obtains credible information that the rules of professional conduct have been infringed. When investigating such a complaint, the agent may question a physician charged with professional misconduct, may appoint experts and question witnesses, and take such other evidence as he or she sees fit. A physician charged with professional misconduct is entitled to make any submissions which in his or her opinion are relevant. 71. If information existing at the time when investigations are instituted, or gathered in the course of an investigation, is sufficient to charge a physician with professional misconduct, an agent shall draw up a motion to the court for a disciplinary penalty to be imposed, containing a detailed description of the alleged offence and written grounds. 72. Pursuant to Article 26 of the Order, the agent shall discontinue proceedings if he concludes that the material gathered in the case does not suffice for drawing up a motion for a penalty to be imposed. 73. A complainant may lodge an appeal against this decision with the Chief Agent for Disciplinary Matters. A further refusal of the Chief Agent may be appealed against to the Principal Court. 74. Under Article 29 of the Order, if the court, having received a motion for a penalty to be imposed, decides that the case is ready for examination at a hearing, it orders that a hearing be held. A physician is summoned to a hearing, whereas his defence counsel and the agent are informed of its date. 75. Under Article 18 of the Order, in disciplinary proceedings the complainant is entitled to: submit a request for evidence to be taken, lodge with the disciplinary court an appeal against the agent’s decision to discontinue the proceedings, and lodge an appeal against a decision of a first-instance court on the merits, but only on the question of responsibility. The complainant is entitled to have access to the case-file, but the agent can limit this access to documents which are not covered by medical secrecy. 76. Pursuant to Article 5 of the Order, the proceedings before the court are public for members of the Chambers of Physicians. 77. Under Article 417 of the Polish Civil Code, the State is liable for damage caused by its agents in the exercise of their functions. There is established case-law of the Polish courts to the effect that this liability of the State includes also liability for damage caused by medical treatment in a public system of medical care, run either by the State or by the municipalities. 78. Article 155 of the Criminal Code of 1997 provides that a person who unintentionally causes the death of a human being shall be sentenced to imprisonment for between three months and five years. 79. On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Law”) entered into force. Under Article 2 read in conjunction with Article 5(1) of the 2004 Law, a party to pending proceedings may ask for the proceedings to be speeded up and/or request just satisfaction for their unreasonable length . 80. The Law lays down various legal means designed to counteract and/or provide redress for undue delays in judicial proceedings. The relevant part of Article 2 of the 2004 Law reads: 81. The relevant parts of Article 4 provide: “1. The complaint shall be examined by the court immediately above the court conducting the impugned proceedings.” 82. Article 5, in its relevant part, reads: “1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...” 83. Article 12 provides for measures that may be applied by the court dealing with the complaint. The relevant part provides: “1. The court shall dismiss a complaint which is unjustified. 2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings. 3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a specified time. Such instructions shall not concern the factual and legal assessment of the case. 4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.” 84. Article 15 provides for an additional compensatory remedy: “1. A party whose complaint has been allowed may seek compensation from the State Treasury ... for the damage it suffered as a result of the unreasonable length of the proceedings.” 85. Article 16 further specifies: “A party which has not lodged a complaint about the unreasonable length of the proceedings under Article 5(1) may claim – under Article 417 of the Civil Code ... – compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended.” | 1 |
dev | 001-122033 | ENG | AUT | ADMISSIBILITY | 2,013 | DAYTBEGOVA AND MAGOMEDOVA v. AUSTRIA | 4 | Inadmissible | Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska | 1. The applicants, Ms Khalisat Daytbegova and Ms Mariat Magomedova, are Russian nationals who were born in 1967 and 1997 respectively and live in Semriach. They are mother and daughter and are represented before the Court by Mrs N. Lorenz, a lawyer practising in Vienna. 2. The Austrian 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. The applicants travelled to Austria via Italy, with the first applicant’s son, born in 2002, and lodged an asylum request there on 23 June 2011. The applicants had not lodged an asylum request in Italy, but they had held a visa for entry into the country, which was valid from 18 to 25 June 2011. 5. At the request of the Austrian authorities Italy accepted jurisdiction with regard to the applicants’ asylum proceedings, pursuant to Council Regulation (EC) No 343/2003 (hereinafter “the Dublin Regulation”). 6. In the course of the Austrian proceedings the first applicant claimed to fear refoulement from Italy to Dagestan and lack of access to medical treatment in Italy. Her whole family, with the exception of the youngest boy, was suffering from depression. The second applicant in particular was very ill, uncommunicative, and suffered from headaches. The first applicant claimed that her husband was registered as a suspect with the Russian military services. As a result, he had gone into hiding in the mountains. The first applicant and her family had been repeatedly threatened, to induce them to disclose the whereabouts of her husband’s hiding place. 7. On 26 August 2011 the Federal Asylum Office (Bundesasylamt) rejected the asylum requests in line with section 5 of the 2005 Asylum Act (Asylgesetz 2005) in conjunction with Article 9 § 2 of the Dublin Regulation, and ordered the applicants’ transfer to Italy. 8. On 26 September 2011 the Asylum Court (Asylgerichtshof) quashed those decisions and noted that the statements made by the Federal Asylum Office regarding the health of the second applicant were insufficient and that the authority had failed to establish that the second applicant was fit to be transferred to Italy (Überstellungsfähigkeit). Furthermore, the authority had failed to evaluate information regarding access to medical treatment in Italy. Finally, since the applicants must be considered vulnerable persons, the authority needed to get assurances from the Italian authorities regarding housing, related support and access to medical treatment. 9. On 16 November 2011 the Italian Ministry of Internal Affairs responded to the Austrian request for information concerning the reception conditions by stating in general terms that the reception and lodging of asylum seekers in Italy was guaranteed in governmental asylum centres (CARA or SPRAR). It was further especially referred to the fact that Italy paid particular attention to vulnerable asylum seekers. Therefore, to ensure appropriate medical and welfare support for such vulnerable groups, the Austrian authorities were requested to submit detailed information for each individual case. 10. On 1 December 2011 the Federal Asylum Office again rejected the applicants’ asylum request pursuant to the 2005 Asylum Act and the Dublin Regulation, and ordered their expulsion to Italy. Referring to relevant country reports, it found that asylum seekers had access to medical treatment in Italy after initial registration with the welfare unit. Vulnerable persons also had special access to lodgings with the “Sistema di Protezione per Richiedenti Asilo e Rifugiati” (Protection System for Asylum Seekers and Refugees, hereinafter “SPRAR”). With reference to the medical documents concerning the second applicant’s health, it found that the fact that the applicants had access to Italian medical services meant that they could count on the necessary support if transferred to Italy. To complement this information, the authority also referred to the fact that at the time of the actual transfer the immigration police (Fremdenpolizei) was called upon to decide whether a transfer was possible or not for medical or psychological reasons. 11. On 26 January 2012 the Asylum Court rendered one decision with regard to the two applicants and the first applicant’s younger son, dismissing the applicants’ appeal against those decisions as unfounded. The decision featured the three file numbers of all parties concerned and the three separate operative parts referred to the different file numbers by reference number. 12. In substance it found that the applicants had not sufficiently proved that they would not have access to medical treatment in Italy. Furthermore, the applicants had not even lodged an asylum request in Italy, which weakened their criticism of the Italian asylum system. The general information available to the authority would not warrant the opinion that the applicants would be subjected to treatment contrary to Article 3 if they were returned to Italy. Acknowledging the fact that the second applicant, and also the first applicant, who had less serious symptoms, was suffering from psychological impairments, the Asylum Court found that they had to accept the possibility that their health would deteriorate and that their opportunities to receive medical treatment would be reduced if they were transferred, which was in line with the Court’s case-law. Furthermore, the Austrian authorities would treat the transfer as “problematic” and thus provide medical assistance during the removal attempt. Finally, the Austrian authorities had also declared that they would inform the Italian authorities of the planned transfer in due time, to enable them to prepare the reception of the applicants in Italy. 13. On 31 January 2012 the first applicant applied for legal aid to lodge a complaint with the Constitutional Court. In the application she referred only to the file number of her proceedings before the Asylum Court. Thereupon, on 3 February 2012, the Constitutional Court (Verfassungsgerichtshof) granted legal aid to the first applicant to lodge a complaint against that last decision. By a decision of 3 April 2012 the first applicant’s complaint was not granted suspensive effect by the Constitutional Court. The complaint proceedings are pending. 14. The transfer of the applicants and the youngest son was originally planned to take place on 25 January 2012. 15. In preparation for the transfer the Austrian authorities submitted a quantity of medical information to the Italian authorities on 16 January 2012, including a statement from the Sigmund Freud Hospital dated 9 December 2011 (see paragraph 20 below). 16. On 23 January 2012 the Italian authorities again requested information regarding the applicants’ medical status. The Austrian authorities responded on 24 January 2012 that there was no new medical information and that all relevant information had already been submitted. 17. However, on the same day the Austrian authorities had to cancel the applicants’ transfer to Italy because the first applicant’s younger son had disappeared and could not be found by the authorities. Thereupon, the Austrian authorities informed the Italian authorities of the expansion of the transfer period to eighteen months because of the disappearance of the first applicant’s son. 18. On 24 January 2012 the second applicant was admitted to the secure ward of the Sigmund Freud Psychiatric Hospital in Graz (Landesnervenklinik Sigmund Freud Graz). That admission to the secure ward was approved by the competent court by a decision based on an expert’s diagnosis of acute post-traumatic stress disorder with serious suicidal tendencies and specific thoughts of putting those tendencies into practice. The second applicant was treated in the secure ward until 12 February 2012 and remained in the hospital until 17 February 2012, in the open ward. 19. Two older psychological statements, commissioned by the Federal Asylum Office and dated 27 July 2011 and 10 October 2011 respectively, diagnosed an adjustment disorder in respect of the second applicant, but no acute suicidal tendencies. 20. A first psychological statement of the Sigmund Freud Psychiatric Hospital of 9 December 2011 confirmed that the second applicant had been in regular treatment at the hospital since 23 September 2011 and diagnosed post-traumatic stress disorder with distinct symptoms and a traumatic neurosis. In the course of the treatment, a sleep activating anti-depressive therapy had been initiated. However, since the start of the therapy only a slight improvement in the second applicant’s condition had been noticed. The statement recommended a stable environment; cessation of the treatment could lead to aggravation of the symptoms. Furthermore, the second applicant showed suicidal tendencies with some impulses to put them into practice. From a psychiatric point of view it was recommended that the second applicant stay in an environment that she considered safe. 21. A second statement of the Sigmund Freud Psychiatric Hospital of 19 January 2012 confirmed that pharmacological treatment and psychotherapy had begun; however, no improvement in the second applicant’s condition was yet noticeable. The insecure status of the second applicant’s stay in Austria had led to depression, sleep disorder and continuing weight loss. It further stated that continuing and long-term treatment of the second applicant was essential, and that disruption of the second applicant’s environment could mean a worsening of the symptoms, including the suicidal tendencies. The applicant was treated with Mirtabene, Seroquel and Dominal forte and was in regular psychotherapeutic treatment. 22. In the course of the proceedings before the Court the applicants provided further medical documentation of 12 July 2012 from the Neuro-Psychiatric Department for children and young persons at the Sigmund Freud Psychiatric Hospital; this indicated that the second applicant remained in outpatient treatment after her release from the hospital in February 2012, and that she was still suffering from post-traumatic stress disorder, manifesting itself with insomnia and a depressed state of mind including suicidal tendencies and weariness. She was continuing to lose weight. The statement continued that on-going and long-term psychotherapeutic treatment was essential, and that security and a sense of safety were important factors that would provide a prospect of improvement. The next steps recommended were drug therapy, regular medical checks, preferably in a familiar environment, continuing trauma-specific psychotherapy, and educational support. 23. On 10 February 2012 the Court applied the interim measure under Rule 39 and requested the Austrian Government to stay the applicants’ transfer to Italy until further notice. 24. The first applicant’s husband and elder son entered Austria illegally and lodged asylum requests on 23 January 2012. To secure the union of the family, the Italian authorities agreed on 9 February 2012 to also accept jurisdiction regarding their asylum proceedings. The Federal Asylum Office thereupon rejected the asylum requests; however, an appeal lodged with the Asylum Court against those decisions was awarded suspensive effect on 30 April 2012. 25. The relevant European and Italian law, instruments, principles and practice have only recently been exhaustively summarised, in Mohammed Hussein v. the Netherlands and Italy (dec.), no. 27725/10, §§ 25-28 and 3350, 2 April 2013. In the following, only information that is particularly relevant to the present case will be repeated. 26. Under the Regulation, the member States must determine, on the basis of a hierarchy of objective criteria (Articles 5 to 14), which member State bears responsibility for examining an asylum application lodged on their territory. The aim is to avoid multiple applications and to guarantee that each asylum seeker’s case is dealt with by a single member State. 27. Where it is established that an asylum seeker has irregularly crossed the border into a member State, having come from a third country, the member State thus entered is responsible for examining the application for asylum (Article 10 § 1). This responsibility ceases twelve months after the date on which the irregular border crossing took place. 28. Where the criteria in the regulation indicate that another member State is responsible, that State is requested to take responsibility for the asylum seeker and examine the application for asylum (Article 17). 29. By way of derogation from the general rule, each member State may examine an application for asylum lodged with it by a third-country national, even if such an examination is not its responsibility under the criteria laid down in the Regulation (Article 3 § 2). This is called the “sovereignty” clause. In such cases the State concerned becomes the member State responsible and assumes the obligations associated with that responsibility. 30. Section 5 of the Asylum Act 2005 (Asylgesetz) provides that an asylum application shall be rejected as inadmissible if, under treaty provisions or pursuant to the Dublin Regulation, another State has jurisdiction to examine the application for asylum. When rendering a decision rejecting an application, the authority shall specify which State has jurisdiction in the matter. 31. According to Section 36, an appeal lodged with the Asylum Court against a decision of the Federal Asylum Office rejecting an asylum request has no suspensive effect. A complaint against a removal order connected with such a decision to reject may be awarded suspensive effect by the Asylum Court within one week (see Section 37). 32. Reference is made to the extensive description of the Italian asylum procedure and domestic law in Mohammed Hussein, cited above, §§ 33-41. 33. In particular, paragraphs 33-36 explain that “33. A person wishing to apply for asylum in Italy should do so with the border police or, if already in Italy, with the police (questura) immigration department. As soon as an asylum request has been filed, the petitioner is granted access to Italy as well as to the asylum procedure, and is authorised to remain in Italy pending the determination of the asylum request by the Territorial Commission for the Recognition of International Protection. 34. For petitioners who do not hold a valid entry visa, an identification procedure (fotosegnalamento) is carried out by the police – if need be – with the assistance of an interpreter. This procedure comprises the taking of passport photographs and fingerprints. The fingerprints are checked for matches in EURODAC and the domestic AFIS (Automated Fingerprint Identification System) database. At the end of this procedure, the petitioner is given a notice confirming the first registration (cedolino), on which future appointments are noted, in particular the appointment for the formal registration of the request. 35. The formal asylum request will be made in writing. On the basis of an interview held with the petitioner in a language which he or she understands, the police will fill out the ‘Standard form C/3 for the recognition of refugee status according to the Geneva Convention’ (Modello C/3 per il riconoscimento dello status di rifugiato ai sensi della Convenzione di Ginevra), which contains questions on the petitioner’s personal data (name, surname, date of birth, citizenship, name and surname of parents/spouse/children and their whereabouts) as well as the details of the journey to Italy and reasons for fleeing the country of origin and for seeking asylum in Italy. The petitioner will be asked to provide a written paper, which will be appended to the form, containing his or her asylum account and written in his or her own language. The police will retain the original form and provide the petitioner with a stamped copy. 36. The petitioner will then be invited by a notification served in writing by the police for a hearing before the competent Territorial Commission for the Recognition of International Protection. During this hearing, the petitioner will be assisted by an interpreter.” 34. The ‘Dublin II Regulation National Report’ on Italy of December 2012 states additionally to the above-mentioned information with regard to access to the asylum procedure for Dublin-returners (pages 18 and 19 of the report): “At the arrival in the main airports, the applicant finds NGOs/associations which may help him/her to find an accommodation centre and provide him/her with further information on the asylum procedure. At the airport, the Border Police carry out the fotosegnalamento and verify the person’s identity in the EURODAC database. After having undertaken these procedures, the applicant will receive a letter (called “verbale di invito”) saying that s/he has to go to the Questura competent to continue the asylum procedure. The asylum seeker may be addressed to the office of the Questura where s/he was fingerprinted and photographed or to the office where s/he lodged the asylum application or where the documents related to his/her case are kept. The law does not foresee any support for reaching the competent Questura. In the practice the NGOs working at the border points can provide the train ticket for that destination on the basis of a specific agreement with the competent Prefecture. However, this support is not always guaranteed and often it happens that the NGO does not have information on the real arrival of the asylum seekers and on whether s/he has found an accommodation there. Once the person is at the Questura, s/he may face different outcomes according to whether s/he did not apply or s/he did apply for asylum when s/he was in Italy previously. If the person had never applied for international protection before, s/he is able to ask for protection now and is entitled to the same rights as the other asylum seekers. ...” 35. Both the UNHCR in its “Recommendations on Important Aspects of Refugee Protection in Italy” of July 2012 (page 7) and the Swiss Refugee Council and the Norwegian NGO Juss-Buss in their report ‘Asylum procedure and reception conditions in Italy’ of May 2011 (page 10) inform on incidents in which asylum seekers have had difficulties lodging a formal asylum application with the Questura, or only got an appointment with the Questura several months after their arrival in Italy. In this period of time however, asylum seekers have no access to lodging or subsistence. 36. The reception scheme and the reception conditions in Italy are summarised again in Mohammed Hussein, cited above, §§ 42-50. 37. In particular, it is noted in respect of vulnerable asylum seekers that pursuant to Legislative Decree no. 140/2005, implementing Council Directive 2003/9/EC of 27 January 2003 on laying down minimum standards for the reception of asylum seekers, asylum seekers in Italy are entitled to reception facilities. According to Article 8 of this Decree, reception arrangements are to be made on the basis of the specific needs of asylum seekers and their families, in particular the needs of vulnerable persons, namely unaccompanied minors, disabled persons, pregnant women, single parents with minor children, and persons who have been subjected to torture, rape or other forms of serious psychological, physical or sexual violence. Italian domestic law provides for special guarantees for such vulnerable persons, including a reserved quota of places in the SPRAR reception scheme (see ibid., § 42). The Italian authorities specified in their comments on the report by the Council of Europe Commissioner for Human Rights dated 18 September 2012 that the system of reception in the CARA centres, which accommodate asylum seekers, envisaged that a range of services must be provided to migrants, including, inter alia, socio-psychological support, with special attention for persons belonging to vulnerable categories and medical assistance appointments with consultants. Those reception conditions were also guaranteed to Dublin-returners. This category received a preliminary form of reception upon arrival when the services present in the main airports were activated; subsequently they were accommodated in government reception centres. When the transferring country reported an asylum seeker as belonging to a vulnerable category, appropriate medical measures were taken in the centres, intended to provide appropriate reception. Special attention was paid to migrants with physical or [psychological] trauma and to victims of torture, who were entrusted to the medical stations of the reception centres or at a local level to receive treatment and support of a professional and appropriate nature (see ibid., § 45). 38. As regards medical assistance, the Italian comments established (ibid.) that “in Italy, foreign citizens, even those not complying with the provisions regulating their presence, are entitled to ordinary and/or urgent treatment through the National Health Service. In the government centres for migrants the psychic/physical health of guests is recognized as an unalienable right of the individual, which is safeguarded by art. 32 of the Italian Constitution and it has always been put at the forefront when the regulatory and management system of the centres is being prepared. More specifically, the medical assistance service provided for in the centres for migrants must grant guests the following: a) Visit upon entry and medical first aid, carried out in a consulting room set up within the facility with medical staff and nurses, whose shifts must be based on the ratio guests/staff as indicated in the tables of the tender specifications; b) When the need arises, possible transfer of guests to hospitals outside the centres, in compliance with art. 35 of Legislative Decree 286/98 as migrants hosted in CARA centres can benefit from the services of the National Health Service by showing their STP cards (Temporarily Present Alien), issued by the Local Health Service Unit, whereby they can enjoy treatment in the consulting room or in hospitals, when it is urgent or essential in case life is in peril; c) Administering of medicines and medical devices necessary for first aid and for ordinary medical assistance, including for generic conditions of psychological type; d) Recording of a personal medical file, a copy of which must be handed over to the guest. In this connection it is worth mentioning that doctors, when screening the guests upon entry must also evaluate their psychic-social situation as well as the presence of vulnerability factors (serious psychic-psychological conditions, including previous ones, victims of mistreatment/torture, substance addiction, etc.) in order to prescribe possible drug treatment or psychological counselling. It is further specified that as provided for by the above mentioned art. 35 of Legislative Decree No. 286/98 (Consolidated Text on Immigration), foreign citizens who are on the national territory but do not comply with provisions regulating their presence are anyway entitled to treatment in public health care facilities either in consultation rooms and/or in hospital (both urgent and continuing treatment) because of illness or accident and they also benefit from the programmes of preventive medical treatment aimed at safeguarding individual and collective health. Regardless of the possession of a residence permit, the Italian legislation provides for the social protection and medical assistance to expectant mothers and to mothers, the protection of the psychic-physical health of minors (as a result of the Convention on the Rights of the Child of 1989), interventions of prevention, diagnosis and treatment of infectious diseases and the decontamination of the related centres of infection. Finally, when aliens not complying with provisions regulating their presence visit public medical facilities, they are not reported to the Police Authorities. As far as social services are concerned, the principle enshrined in art. 24 of the 1951 Geneva Convention – according to which the status of a refugee is equal to that of a national – is embodied in the Italian legislation also as a consequence of art. 27 of the above mentioned Legislative Decree No. 251 of 19 November 2007, which lays down that individuals benefiting from refugee status and from subsidiary protection have the same status as Italian citizens and thus they have access to all services and benefits, including economic ones, covered by the social and medical assistance system. Furthermore, the projects funded through resources of the ERF include measures to ease the access to social security, particularly on the part of vulnerable groups.” 39. And finally, with regard to the reception of Dublin-returners, the “Dublin II Regulation National Report” on Italy stated in particular that (ibid., § 49) “Within this broader category, another distinction is deemed necessary according to whether the returnee had already enjoyed the reception system while s/he was in Italy. If returnees (international protection seekers, beneficiaries of international protection or of a permit of stay for humanitarian reasons) had not been placed in reception facilities while they were in Italy, they may still enter reception centres. Due to the lack of available places in reception structures and to the fragmentation of the reception system, the length of time necessary to find again availability in the centres is – in most of the cases - too long. Since, there is no general practice, it is not possible to make a quantification of the time necessary to access to an accommodation. However, in the last years, temporary reception systems have been established to house persons transferred to Italy on the basis of the Dublin II Regulation. However, it concerns a form of temporary reception that lasts until their juridical situation is defined or, in case they belong to vulnerable categories, an alternative facility is found. Such temporary reception has been set up thanks to targeted projects funded by the European Fund for Refugees. For instance, in Rome, there are currently projects providing assistance to 200 persons – within this broader category 60 places are for vulnerable categories. However, it happens that Dublin returnees are not accommodated and find alternative forms of accommodation such as self-organized settlements....” | 0 |
dev | 001-59098 | ENG | IRL | CHAMBER | 2,000 | CASE OF QUINN v. IRELAND | 2 | Violation of Art. 6-1;Violation of Art. 6-2;No separate issue under Art. 10;Costs and expenses partial award - domestic proceedings;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings | Georg Ress | 8. On 7 June 1996, at approximately 6.00 a.m., two detective police officers left Limerick city in an unmarked police car escorting a post office van carrying significant sums of money on its way to Adare village, Co. Limerick. When the two vehicles arrived at the post office in Adare, the police car was rammed from behind by a stolen vehicle and immediately surrounded by five heavily armed and masked individuals dressed in paramilitary style uniforms. One of the five opened fire at point blank range on the police officers. One of those officers died instantly and the other was seriously wounded. 9. The police suspected a local unit of the Irish Republican Army (an unlawful paramilitary organisation known as the IRA) and the IRA later claimed responsibility for the murder. It was also suspected by the police that, on the night prior to the attack in Adare, the stolen vehicle together with all firearms and ammunition used in the attempted robbery had been stored in a safe house in Patrickswell, Co. Limerick. As part of the investigation that followed, a number of persons suspected of being members of the local unit of the IRA were arrested and charged, including the applicant’s brother who was charged with conspiracy to commit robbery (in relation to the Adare incident), possession of ammunition and of membership of the IRA. A total of 63 persons were arrested and asked to account for their movements at particular times surrounding the attack, including the remaining members of the applicant’s family except his two sisters. All of those persons who were asked to account for their movements did so. 10. On 19 July 1996 at 9.30 a.m. the applicant, who resided in the family home in Patrickswell, Co. Limerick, was arrested under section 30 of the Offences Against the State Act 1939 ("the 1939 Act") on suspicion of being a member of the IRA contrary to section 21 of the 1939 Act. 11. He was questioned on eight occasions during two 24-hour consecutive periods of detention for which provision is made under section 30 of the 1939 Act. While in detention, he saw his solicitor on three occasions: between 11.12 a.m. and 11.36 a.m. on 19 July 1996 prior to his first interview with the police; between 5.54 p.m. and 6.27 p.m. on 19 July 1996 and between 1.28 p.m. and 2.00 p.m. on 20 July 1996. That solicitor did not attend the applicant’s interviews with the police. 12. At the beginning of the interviews, the applicant was cautioned that he was not obliged to say anything, but that anything he did say would be taken down in writing and could be given in evidence. Many of the questions put to the applicant related to the attack in Adare and to his alleged membership of the IRA. On several occasions during those interviews he was also requested to account for his movements during certain periods of time on 6 and 7 June 1996 immediately before, during and after the incident in Adare. In being so requested, he was informed by the questioning police officers that a failure to provide this information would constitute an offence under section 52 of the 1939 Act for which the potential penalty was six months’ imprisonment. The applicant was also informed, on certain occasions only, that the initial caution given to him did not apply as he was obliged to respond under section 52 of the 1939 Act. 13. The applicant denied any connection with the events in Adare, indicated that he was in London when he heard the news of the murder and otherwise refused to give an account of his movements stating, on one occasion, that he had been advised by his solicitor not to answer questions. 14. On 17 January 1997 he was charged, pursuant to section 52 of the 1939 Act, on three counts of refusing to give an account of his movements. On 15 May 1997 the District Court dismissed one charge, he was convicted on the second charge (a section 52 request made on 21 July 1996) and no ruling was made on the remaining charge. The applicant was sentenced to six months’ imprisonment. 15. The applicant appealed against conviction and sentence to the Circuit Court and was released on bail pending the appeal. He appealed on the basis, inter alia, of an overlap in the times referred to in the charge which was dismissed and the charge on which he was convicted. In early October 1997 the Circuit Court rejected this part of his appeal. When the Circuit Court sat on 20 January 1998 to hear the applicant’s submissions on sentence, he withdrew that portion of the appeal which was then struck out. The applicant was detained immediately to serve his prison sentence and was released on 4 June 1998. 16. In February 1999 the applicant’s brother pleaded guilty to the charge of conspiracy to commit robbery and the remaining charges were not proceeded with. Four other men pleaded guilty to the manslaughter of the detective police officer and the wounding of his colleague in Adare, Co. Limerick. 17. Article 38(1) of the Irish Constitution provides that no person shall be tried on any criminal charge save in due course of law. By Article 40, the State guarantees liberty for the exercise, subject to public order and morality, of the right of citizens to express freely their convictions and opinions. 18. The Offences Against the State Act 1939 (“the 1939 Act”) is described in its long (explanatory) title as an Act to make provision for actions and conduct calculated to undermine public order and the authority of the State and, for that purpose, to provide for the punishment of persons guilty of offences against the State, and to establish Special Criminal Courts. 19. Section 21 of the 1939 Act makes it an offence to be a member of an unlawful organisation as defined in the Act. 20. Section 30 deals with the arrest and detention of suspected persons and provides that a member of the police can arrest and detain a person whom he suspects of having committed an offence under the 1939 Act or an offence scheduled under Part V of the 1939 Act (the scheduled offences are mainly offences under the firearms and explosive substances’ legislation). This power of arrest is a permanent power so that it is not dependent on a section 35 proclamation (see the following paragraph). 21. Section 35 of the 1939 Act provides that Part V of that Act (which establishes the Special Criminal Courts and contains section 52) is to come into force by means of a proclamation by the Government made when the Government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order, and when the Government therefore makes and publishes a proclamation to that effect. The proclamation was made in 1972 and is still in force. Accordingly, section 52 of the 1939 Act has been in force since 1972 to date. 22. By section 36 of the 1939 Act the Government may declare that a particular class or kind of offence is a scheduled offence for the purpose of the 1939 Act and such offences are to be tried by the Special Criminal Courts established under section 38 of the 1939 Act. 23. Section 52 of the 1939 Act reads as follows: “1. Whenever a person is detained in custody under the provisions in that behalf contained in Part IV of this Act, any member of the <police> may demand of such person, at any time while he is so detained, a full account of such person’s movements and actions during any specified period and all information in his possession in relation to the commission or intended commission by another person of any offence under any section or sub-section of this Act or any scheduled offence. 2. If any person, of whom any such account or information as is mentioned in the foregoing sub-section of this section is demanded under that sub-section by a member of the <police>, fails or refuses to give to such member such account or any such information or gives to such member any account or information which is false or misleading, he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to imprisonment for a term not exceeding six months.” 24. Under the terms of the Good Friday Peace Agreement of 10 April 1998, the Government committed to initiating a wide ranging review of, inter alia, the 1939 Act with a view to reform and dispensing with those elements of the 1939 Act which would no longer be required. The Minister for Justice, Equality and Law reform has, with Government approval, established a committee to examine all aspects of the Offences Against the State Acts and to report to the Minister with recommendations for reform. The Committee has commenced its work. 25. In the case of the People (Director of Public Prosecutions) v. McGowan (1979 IR 45) the accused had been arrested under section 30 of the 1939 Act and had made certain statements to the police. The defence argued that because of the basis of his arrest (section 30), the existence of section 52 of the 1939 Act and even though no section 52 requests had actually been made, the accused was bound under penalty to give an account of his movements. Accordingly, the statements which had been made by him were involuntary and not therefore admissible. The Court did not find this argument persuasive since no section 52 requests had in fact been made. It went to point out that, even if section 52 had been invoked by the police, the defence submission was not well-founded because of previous Irish case-law which had held that statements obtained in accordance with Irish law, even a law which made it a criminal offence to refuse to answer, were not inadmissible in any legal proceedings. 26. The Garda Siochana (police) Handbook contains relevant legislation and commentaries and is published by the Incorporated Law Society of Ireland in association with the Garda Siochana. The commentary on section 52 of the 1939 Act in the sixth edition (1991) provides as follows: “The fact that the accused is bound under threat of penalty to answer questions lawfully put under section 52 does not render the resultant answers or statements inadmissible in evidence” The judicial authority for that proposition was noted in the handbook as being found in the above-cited McGowan case and the earlier Irish case-law approved in the McGowan case. 27. In the case of Anthony Heaney and William McGuinness v. Ireland and the Attorney General ([1994] 2 ILRM), two individuals had been sentenced to six months’ imprisonment pursuant to section 52 of the 1939 Act for failing to give an account of their movements. The High Court rejected their challenge to the constitutionality of section 52, considering that section 52 constituted a proportionate interference with those persons’ right to silence guaranteed by Article 38 of the Constitution: the objective was to assist police investigations into serious crimes of a subversive nature involving the security of the State; the restrictions were not considered arbitrary or irrational; and other legal protections were available to persons in custody under section 30 of the 1939 Act which minimised the risk of an accused wrongfully confessing to a crime and safeguarded against the possible abuse of the powers provided by section 52 of the 1939 Act. Those protections were listed by the High Court: the requirement that a police officer must have a bona fide suspicion prior to arrest; the obligatory informing of the suspect of the offences under the 1939 Act and/or of the scheduled offences of which he is suspected; the right to legal assistance when reasonably requested; the right to medical assistance; the right of access to court; the right to remain silent and to be told of that right; the obligations to provide appropriate cautions to detainees and to abstain from cross-examining a person in detention under section 30 of the 1939 Act and from unfair and oppressive questioning of such detainees; and the conditions attaching to any extension of the length of detention under section 30 of the 1939 Act. The Supreme Court rejected the appeal (Anthony Heaney and William McGuinness v. Ireland and the Attorney General [1996] IR 580). It noted that section 52 of the 1939 Act was silent on the question of the later use of statements made pursuant to requests of the police under that section. While it noted that the Court of Criminal Appeal had suggested in the above-cited McGowan case that information lawfully obtained under Section 52 might be later used in evidence, the Supreme Court expressly reserved its position as to whether that view was correct or not. The Supreme Court pointed out that the right to silence was a corollary to the freedom of expression guaranteed by Article 40 of the Constitution. The relevant assessment was, therefore, to consider the proportionality of the restriction on the right to silence in view of the public order exception to Article 40 of the Constitution. It noted that the 1939 Act was aimed at actions and conduct calculated to undermine public order and the authority of the State and that the proclamation made under section 35 of the 1939 Act remained in force. As to whether section 52 restricted the right to silence more than was necessary in light of the disorder against which the State was attempting to protect the public, the court noted that an innocent person had nothing to fear from giving an account of his or her movements even though such a person may wish, nevertheless, to take a stand on grounds of principle and to assert his or her constitutional rights. However, it considered that the entitlement of citizens to take such a stand must yield to the right of the State to protect itself. The entitlement of those, with something relevant to disclose concerning the commission of a crime, to remain silent must be regarded as of an even lesser order. 28. In the case of National Irish Bank Ltd (In the matter of National Irish Bank Ltd and the Companies Act 1990, 1999 1 ILRM 321, at 343) the Supreme Court found that a confession of a bank official obtained by Inspectors as a result of the exercise by them of their powers under Section 10 of the Companies Act 1990 would not, in general, be admissible at a subsequent criminal trial of that official unless, in any particular case, the trial judge was satisfied that the confession was voluntary. The Supreme Court considered that compelling a person to confess and then convicting that person on the basis of the compelled confession would be contrary to Article 38 of the Constitution. That court also found that any other evidence obtained as a result of information provided under section 52 of the 1939 Act would be admitted in evidence in a subsequent trial if the trial judge considered, in all the circumstances, that it would be just and fair to admit it. | 1 |
dev | 001-78064 | ENG | AZE | CHAMBER | 2,006 | CASE OF HAJIYEV v. AZERBAIJAN | 3 | Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1;Not necessary to examine Art. 14+6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings | Christos Rozakis | 7. The applicant was born in 1959 and lives in Baku. 8. The applicant was an activist of the National Front, an organisation which played one of the key roles in the country's struggle for independence from the Soviet Union. In 1992, when the National Front came into power in the country, he was appointed to a number of high military posts and in 1993 he became the Commander of the Special Police Force. 9. After the National Front lost political power in 1993, on 24 May 1994 the applicant was arrested and detained on remand. Upon arrest, allegedly, he was not informed of the charges against him and was refused access to a lawyer. On 7 August 1995 the Military Chamber of the Supreme Court, acting as a court of first instance, convicted the applicant for attempted murder (ten years' imprisonment), abuse of authority at wartime (eight years), intentional abuse of authority (four years), misuse of weapons (two years), negligent approach to military service (two years) and humiliation of a subordinate person (one year and six months), and sentenced him to a total of ten years' imprisonment by merging the sentences. 10. On 26 June 1996 the same court, again sitting in first instance, convicted the applicant for “failure to use authority to resist the Armenian occupation of the town of Khojaly and prevent the subsequent mass killing of the civilians fleeing the town”. The court sentenced the applicant to fifteen years' imprisonment, merging his previous ten-year sentence into this new sentence. The imprisonment period was to be calculated from the first day of the applicant's arrest on 24 May 1994. Pursuant to the old criminal procedure law applicable at that time, both Supreme Court judgments were final and not subject to appeal. 11. At the time of Azerbaijan's admission to the Council of Europe, the applicant's name appeared in the lists of “alleged political prisoners” in Azerbaijan submitted to the experts of the Secretary General. Azerbaijan had made a commitment to either release or give a re-trial to all persons identified as “political prisoners” by these experts. However, ultimately, the applicant was not regarded as a political prisoner by the experts of the Secretary General (see Cases of alleged political prisoners in Armenia and Azerbaijan, SG/Inf (2001) 34, Addendum I, 24 October 2001, Chapter 2 (III), Case No. 10 (the applicant's name is transliterated as “Fahmin Hadjiyev” in this document)). 12. In 2000 a new Code of Criminal Procedure (hereinafter “CCrP”) was adopted. Before its entry into force on 1 September 2000, on 14 July 2000 Parliament passed the Law On the Adoption and Entry into Force of the Code of Criminal Procedure of the Republic of Azerbaijan (hereinafter the “Transitional Law”), which allowed lodging an appeal under the new CCrP against final judgments delivered in accordance with the old criminal procedure. 13. On 29 January 2002 the applicant lodged an appeal with the Court of Appeal against the Supreme Court's judgments of 7 August 1995 and 26 June 1996. By a letter of 13 February 2002, the Court of Appeal informed the applicant that, in addition to the appellate complaint, he also had to file a petition in order to restore the appeal period. 14. According to the applicant, he filed such a petition on 7 March 2002. Having not received an answer, he appealed again on 7 June 2002 and yet again on 7 October 2002. In reply to these applications, in its identical letters of 24 October 2002 and 27 November 2002 signed by a court clerk (the Head of the Correspondence Department of the Court of Appeal), the Court of Appeal informed the applicant that his case would be examined shortly by the Court of Appeal's Chamber on Military Courts' Cases and that he would be informed of any further developments in due course. 15. However, during the following period of over a year, despite the applicant's continuous inquiries, no examination of the case took place and no information in this regard was given to the applicant. 16. Finally, more than two years after lodging his appeal, by a letter of 31 March 2004 signed by the same court clerk, the applicant was informed that: “... in accordance with Article 72.2 of the Code of Criminal Procedure currently in force, the Court of Appeal may only examine criminal cases ... based on appeals or protests against first-instance courts' judgments and other decisions which have not entered into force [i.e. have not become final]... For re-consideration of the firstinstance judgments of the Supreme Court's Military Chamber of 7 August 1995 and 26 June 1996 you are advised to apply to the Supreme Court.” 17. Although, during the same period, the applicant was actively engaged in correspondence with the Supreme Court with regard to unrelated proceedings concerning the reduction of his sentence, the applicant did not file a formal appeal with the Supreme Court concerning the present case. 18. On 10 May 2004 the applicant was pardoned and released from prison pursuant to a presidential pardon decree. 19. Law of 14 July 2000 on the adoption and entry into force of the Code of Criminal Procedure of the Republic of Azerbaijan (the “Transitional Law”) Article 7: “Judgments and other final decisions delivered by first-instance courts under the [old] Code of Criminal Procedure ... before the entry into force of this [new] Code, may be reconsidered by an appellate court or the Supreme Court of the Republic of Azerbaijan in accordance with Articles 383-407, 409-427 or 461-467 of the [new] Code of Criminal Procedure.” 20. Code of Criminal Procedure of the Republic of Azerbaijan of 1 September 2000 Article 72.1 provides that the Court of Appeal of the Republic of Azerbaijan is a court of appellate instance concerning criminal cases and other matters related to criminal prosecution. Article 72.2 provides that the Court of Appeal of the Republic of Azerbaijan has a competence to examine criminal cases and other matters related to criminal prosecution based on appellate complaints or protests against judgments and other decisions of first-instance courts that have not entered into legal force. Article 73.1 provides that the Supreme Court of the Republic of Azerbaijan is a court of cassation instance concerning criminal cases and other matters related to criminal prosecution. Article 73.2 provides that the relevant chambers of the Supreme Court of the Republic of Azerbaijan have a competence to examine criminal cases and other matters related to criminal prosecution based on cassation complaints or protests against judgments and other decisions of the appellate courts or jury courts. Article 391.1 provides that the appellate court must hold a preliminary hearing of the case within 15 days after the receipt of an appellate complaint. The parties to the case and the state prosecutor have a right to attend this hearing. These persons must be informed in advance of the time and place of the hearing. Article 391.2 provides that, during the initial hearing, the appellate court must determine, inter alia, whether it has competence to examine the appellate complaint and whether the appellate complaint was submitted in accordance with the relevant procedural requirements. Article 391.3 provides that, upon the initial hearing, the appellate court may decide, inter alia, to leave the appellate complaint without examination, to forward the appellate complaint to a court having appropriate competence, to reinstate or refuse to reinstate the expired period for filing the appellate complaint, to appoint a judicial hearing for examination of the merits of the appellate complaint, or to refuse to admit the appellate complaint for examination. | 1 |
dev | 001-5635 | ENG | ESP | ADMISSIBILITY | 1,999 | TIRADO ORTIZ and LOZANO MARTIN v. SPAIN | 1 | Inadmissible | null | The applicants [Mr Jesús Santiago Tirado Ortiz and Mr Santiago Lozano Martin] are two Spanish nationals who were born in 1951 and 1965 respectively and live in Saragossa. They were represented before the Court by Mr E. Trebolle Lafuente, of the Saragossa Bar. At 11.35 p.m. on 15 June 1996 the applicant, who was driving on the motorway, had an argument with a toll-gate official about the amount he was to be charged for using the motorway. Shortly afterwards, some guardia civil officers, having been alerted by the toll-gate official, observed that the applicant was driving his car in zigzags. After stopping him, they noted that he appeared to be under the influence of alcohol. The applicant refused to submit to a breath test, despite being informed that his refusal might make him liable to prosecution under Article 380 of the Criminal Code for serious failure to obey the orders of a law-enforcement officer. An investigation was conducted, following which the applicant was committed for trial on charges of endangering other road-users and serious failure to obey orders. After adversarial proceedings the Saragossa Criminal Court no. 7, in a judgment of 19 November 1996 sentenced the applicant to a fine or, in default of payment, three months’ imprisonment, and disqualified him from driving for one year for endangering other road-users or jeopardising road safety contrary to Article 379 of the Criminal Code. It decided to refer to the Constitutional Court the question whether Article 380 of the Criminal Code, which made serious failure to obey the orders of an officer a criminal offence, was compatible with Article 24 of the Constitution, which guarantees the right not to make self-incriminating statements and not to confess guilt. The court accordingly, decided to stay its decision on the second charge until the Constitutional Court had ruled on the constitutionality of Article 380. The applicant appealed against his conviction on the charge of endangering other road-users, but it was upheld by the Saragossa Audiencia provincial on 29 November 1997. In a judgment delivered by a full court on 18 December 1997 the Constitutional Court held that Article 380 of the Criminal Code was compatible with Article 24 of the Spanish Constitution. The Constitutional Court held that breath tests were not designed to compel drivers to admit certain facts, but were merely a means of obtaining expert evidence, and could not be regarded as obliging the driver to incriminate himself or, therefore, as being contrary to Article 24 § 2 of the Constitution. The court held that breath tests did amount to interference with the right to respect for a person’s private life, guaranteed by Article 18 of the Constitution, but that the interference was necessary for the prevention of road accidents and for the safety of others. After adversarial proceedings the Saragossa Criminal Court no. 7, in a judgment of 12 January 1998, convicted the applicant of serious failure to obey orders on the ground that he had refused to submit to a breath test. It sentenced him to six months’ imprisonment. At about 6.30 a.m. on 20 July 1996 the applicant struck two other cars while attempting to park in Saragossa. An argument ensued with the owners of the other two cars and the applicant was taken to the police station where he was ordered to submit to a breath test. The applicant refused to do so, despite being informed that his refusal might make him liable to prosecution for serious failure to obey an officer’s orders. In a judgment of 2 June 1997 the Saragossa Criminal Court no. 1 decided to refer to the Constitutional Court the question whether Article 380 of the Criminal Code, which made serious failure to obey orders a criminal offence, was compatible with Article 24 of the Constitution, which guarantees the right not to make self-incriminating statements and not to confess guilt. The court accordingly decided to stay its decision on the charge until the Constitutional Court had ruled on the constitutionality of Article 380. Following the above-mentioned judgment of the Constitutional Court of 18 December 1997, the Saragossa Criminal Court no. 1, in a judgment of 5 January 1998, convicted the applicant of serious failure to obey an officer’s orders on the ground that he had refused to submit to a breath test. It sentenced him to six months’ imprisonment. The applicant appealed to the Saragossa Audiencia provincial. The case is still pending before that court. “Anyone driving a motor vehicle or moped under the influence of toxic or narcotic drugs, psychotropic substances or alcoholic drinks shall be liable to a prison sentence of eight to twelve weekends or to three to eight month-fines and shall in any event be disqualified from driving a motor vehicle or moped … for a period of one to four years.” “A driver who refuses to comply with a law-enforcement officer’s orders to submit to a statutory test to verify the condition referred to in the preceding Article shall be punished in the same way as a person convicted of serious failure to obey orders, as provided in Article 556 of this Code.” “Anyone … who resists an order of the authorities or their officers, or is guilty of serious failure to obey them in the exercise of their duties, shall be liable to a prison sentence of six months to one year.” Under section 12(2) of the Traffic and Road Safety Act of 2 March 1990 and sections 21 to 24 of the General Implementing Regulations of 17 January 1992, tests of alcohol levels may be ordered by a police officer or a judicial authority. They usually consist in testing, by means of approved breath-testing device, the air exhaled. The person concerned can ask for a second test, which may be a blood, urine or other test. | 0 |
dev | 001-78443 | ENG | SVK | CHAMBER | 2,006 | CASE OF SNEGON v. SLOVAKIA | 4 | Preliminary objection allowed (exhaustion);Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | Nicolas Bratza | 4. The applicant was born in 1965 and lives in Kysucké Nové Mesto. He is a self-employed food products wholesaler. 5. In May 1993 an article was published in several papers about a salmonella epidemic suggesting that it had had its origin in dried milk which had been produced by the applicant. 6. On 4 August 1993 the applicant brought an action in the Čadca District Court (Okresný súd) for protection of personal integrity against four publishers, the Slovakian Press Agency, two of his business partners and a research institute. He claimed that the published information was untrue in so far as it concerned him and that it caused damage to his business interests. He sought compensation in the amount of 180,000 Slovakian korunas (SKK). 7. On 9 August 1993 the District Court held a hearing following which, on the same day, it decided to transfer the case to the Banská Bystrica Regional Court (Krajský súd) for reasons of jurisdiction. 8. On 20 October 1993 the applicant submitted correct addresses for two of the defendants. The decision to transfer the case was then served on these defendants and became final on 24 February 1994. 9. On 9 March 1994 the Regional Court requested that the applicant pay court fees which he did on 5 April 1994. 10. The Regional Court subsequently sought the defendants’ observations in reply and, on 9 May 1994, the applicant withdrew his claim in respect of one of them. 11. On 27 June 1994 the Regional Court held a hearing which was adjourned with a view to obtaining further information including a case file with the Považská Bystrica District Court in a criminal case. 12. On 21 September 1994 the applicant extended the action in that he requested that an apology be published and that he be paid SKK 1 million in damages. 13. On 29 September 1994 the Regional Court requested the applicant to pay court fees for his extended claim, which he did on 4 October 1994. 14. On 6 October 1994 the Považská Bystrica District Court requested that the above-mentioned criminal file be returned to it because it was needed in connection with a different criminal case. The Regional Court returned the case file on 10 November 1994 but requested that it be given back as soon as possible since it was still needed in connection with the applicant’s case. The Regional Court reiterated the request on 8 February 1995 and, in response, it was informed that the case file in question was in fact with the criminal division of the Regional Court on appeal in the second of the criminal cases mentioned above. 15. Between 2 June 1995 and 5 June 1996 the Regional Court held 4 hearings 3 of which were adjourned in order to obtain further evidence. On each occasion 3 or more of the defendants had been absent. 16. In the meantime, on 14 December 1995 the Regional Court decided to return a part of the court fees to the applicant on the ground that he had reduced the scope of his claim for damages to SKK 500,000. 17. On 7 June 1996 the Regional Court delivered a judgment ordering one of the defendants to pay the applicant SKK 90,000, dismissing the action in respect of four defendants and discontinuing the proceedings in respect of the remaining two defendants. 18. Both the applicant and the defendant who had been ordered to pay damages appealed on the ground that the operative part of the written judgment did not correspond to the judgment which the court had given orally. 19. On 14 November 1996 the Regional Court ordered the applicant to pay the court fees for his appeal and, on 10 February 1998, it delivered two separate decisions by which it corrected errors in the costs order and in the judgment of 7 June 1996. 20. On 23 December 1998 the Supreme Court quashed the judgment of 7 June 1996 as being incomprehensible and lacking adequate reasons, which made it impossible to review it. The Supreme Court observed that the rectification decision of 10 February 1998 had changed the substance of the contested judgment, which was procedurally impermissible. The case was remitted to the Regional Court for re-examination. 21. The applicant then withdrew the action in so far as it concerned 5 of the defendants and maintained it in respect of 2 defendants. 22. On 20 September 1999 the Regional Court held a hearing following which, on the same day, it ordered each of the remaining defendants to pay the applicant SKK 50,000 in damages and dismissed the remainder of his claim. The applicant and one of the defendants appealed. 23. On 3 May 2000 the Regional Court dismissed the applicant’s petition for an exemption from the obligation to pay court fees for his appeal. 24. On 19 December 2000 the Supreme Court quashed both the judgment of 20 September 1999 and the decision of 3 May 2000 on court fees. It held that the Regional Court had failed to give comprehensible reasons for the amount of damages to be paid to the applicant and that it had failed to establish adequately the facts relevant for the decision on court fees. 25. On 28 September 2001 and 14 January 2002 the Regional Court held hearings. Following the latter hearing, on the same day it exempted the applicant from the obligation to pay court fees, ordered one of the defendants to pay the applicant SKK 10,000 in damages and dismissed the remainder of the claim. The parties waived their right of appeal and the judgment became final and binding on 6 February 2002. 26. On 12 February 2003 the applicant complained of the length of the proceedings to the Constitutional Court (Ústavný súd) under Article 127 of the Constitution. 27. On 26 February 2003 the Constitutional Court rejected the complaint as having been lodged after the expiry of the twomonth time-limit laid down in the Constitutional Court Act. | 1 |
dev | 001-4555 | ENG | CZE | ADMISSIBILITY | 1,999 | CESKOMORAVSKA MYSLIVECKA JEDNOTA v. THE CZECH REPUBLIC | 3 | Inadmissible | Nicolas Bratza | The applicant is an association of hunters and gamekeepers, registered in Prague. It is represented before the Court by Mr P. Pilecký, a lawyer practising in Prague. The facts of the case, as submitted by the parties, may be summarised as follows. A. In December 1948 a privately owned house and plot situated in Prague 1 was nationalised by the State pursuant to the Nationalisation of Wholesale Enterprises Act. No compensation was awarded to its owner. In April 1949 the property was sold to the applicant association for 3,250,000 crowns. The monetary reform of 1 June 1993 devalued the crown at the rate of 5:1. On 20 June 1991 the successors to the former owner of the property entitled to restitution under Section 3(2)(e) of the Extra-Judicial Rehabilitation Act (Zákon o mimosoudních rehabilitacích) (“the Restitution Act”), made a request to the applicant association for an agreement on restitution under Section 5 of this Act. As the applicant association refused to conclude the agreement, they brought an action against the applicant association in the Prague 1 District Court (obvodní soud). On 3 December 1992 the District Court ordered the applicant association to conclude an agreement on the restitution of the property stating, inter alia, that the nationalisation of the property had been unlawful. As to the current value of the property, the court held that the parties could solve this issue in a separate agreement. The applicant association appealed against this judgment claiming that the unlawfulness of the nationalisation had not been established. It also argued that it could not be a “mandated person” under Section 4 of the Restitution Act because it had acquired the property by a lawful purchase in April 1949. On 30 September 1993 the Municipal Court (městský soud) rejected the applicant association’s appeal finding, in particular, that the Restitution Act applied in the present case as the former owner had not received any compensation and that the applicant association was not excluded from the scope of this Act. The court further stated that the applicant association claimed compensation for the revaluation of the property but did not specify the amount of the compensation and the claimants denied the revaluation of the property within the meaning of Section 7(4) of the Restitution Act. Moreover, the applicant association did not lodge a reciprocal action under Section 97 of the Code of Civil Procedure. The documents from 1988, 1987 and 1986 submitted by it, concerned the property in question, but were given to the court without any selection. The court found that it was for the applicant association to specify its claims of revaluation of the property and submit them in a separate action. On 20 December 1993 the applicant association lodged an appeal on points of law (dovolání) claiming, inter alia, that it could not be required to return the property because it was not a legal entity which had acquired the property from the State free of charge. On 30 December 1994 the High Court (Vrchní soud) dismissed the applicant’s appeal stating in particular: “… if the property which was nationalised without compensation is not in the possession or ownership of such legal entities as mentioned in Section 1 of the Transfer of the State’s property to Other Persons Act as amended (i.e. state enterprise, state bank, state insurance company and other state organisation …), the redress for the violation of the property rights will be governed by the [Restitution] Act in accordance with Section 47(a) of the Transfer of the State’s Property to Other Persons Act (as amended). …” As to the valuation of the property, the High Court found: “According to Section 5(3) of the [Restitution] Act, the mandated person shall conclude an agreement with the entitled person about the surrender of the property without any obligatory settlement of mutual claims … Nor does Section 7(4) of the [Restitution] Act, according to which the entitled person shall compensate the mandated person for the difference between the original price and the actual price, specify the manner of that compensation. … This situation is governed by general provisions of the Civil Code concerning the obligations. However, Section 560 of the Civil Code concerning reciprocal obligations cannot be applied in the agreement on the surrender the property under the [Restitution] Act.” On 10 April 1995 the applicant association lodged a constitutional appeal claiming, in particular, that the national courts had violated its right to safeguard its property rights under Article 11 § 1 of the Charter and Article 1 of Protocol No. 1 to the Convention. It challenged the findings of the courts concerning its position as a person obliged to surrender the property, the question of compensation for revaluation of the property, the relation between the Restitution Act and the Transfer of the State’s property to Other Persons Act (as amended) (Zákon o převodu majetku státu na jiné osoby) (“the Privatisation Act”) and the relation of these two Acts to the general civil law concerning obligations. On 1 March 1996 the Constitutional Court (Ústavní soud) rejected the applicant association’s appeal as manifestly ill-founded referring to the findings of the High Court. On 19 March 1996 an expert report determined the real value of the applicant association’s property at 32,894,140 crowns. On 14 October 1996 the purchase price of 650,000 crowns fixed in pursuance of Section 16(3) of the Competence of Authorities of the Czech Republic on Extra-Judicial Rehabilitations Act, was paid to the applicant association by the Ministry of Finance as provided for in Section 11 of the Restitution Act. B. Relevant domestic law Extra-Judicial Rehabilitations Act No. 87/1991 [“the Restitution Act”] In the preamble to the Restitution Act of 23 March 1991, the Federal Assembly of the Czech and Slovak Federal Republic affirmed its will to prevent violations of the kind committed in the past. Section 1(1) sets out the aim of the Act, providing that it is designed to redress the consequences of certain violations of property and other rights caused by acts falling within the sphere of civil or labour law or by administrative acts incompatible with the principles of a democratic society respecting the rights of citizens as enshrined in the Charter of the United Nations and the Universal Declaration of Human Rights. According to Section 2(1)(c) and (3), such redress consists in the surrender of property if the violation in question was caused by an act infringing generally recognised human rights and freedoms, that is, an act in contradiction with the principles referred to in Section 1(1) of the Act. When an entitled person was deprived of his or her property rights without appropriate compensation under nationalisation laws adopted between 1945 and 1949, the entitled person has a claim under this Act, which he or she can raise under the Privatisation Act (as amended). Section 3(1) provides that, in order to be entitled to restitution of his or her property, a claimant must be a physical person and a citizen of the Czech and Slovak Federal Republic whose property was ceded to the State in the circumstances listed in Section 6 of the Act. According to Section 3(2)(e), if the person whose property has been transferred to the State in cases specified in Section 6 dies before the expiry of the time period specified in Section 5(2), the entitled persons, provided they are citizens of the Czech and Slovak Federal Republic, shall be his or her siblings or in the case of decease of any of them, his or her children. According to Section 4(1), those obliged to make restitution (“mandated persons”) are the State or the legal entities in possession of the property on the day on which this Act has entered into force with certain exceptions. According to Section 7(4), if the value of the property has so increased that its price assessed on the day of the submission of the written request by the entitled person exceeds substantially the price of the initial property, it is left at the discretion of the entitled person, whether he or she will request financial compensation under Section 13 or whether he or she will request the surrender of real property. If he or she insists on the surrender of the property, the entitled person shall compensate the mandated person for the difference between the two prices specified in the preceding clause. Both prices shall be assessed in conformity with the price regulations in force on the day of entry into force of the Restitution Act. Section 11 entitles physical persons who are under an obligation to restore property to recover the price they had paid when acquiring such property from the State. Transfer of the State’s Property to Other Persons Act No. 92/1991 [“Privatisation Act”] According to Section 1(1), this Act lays down the conditions for the transfer of State property, the right to manage which is vested in State enterprises, State financial institutions and other State organisations or State property used by organisations founded by municipalities or administered by the Land Fund (pozemkový fond) of the Czech Republic. Section 47(1) provides that in the case of a dispossession of the whole or part of any privatised property that occurred in a manner specified in Section 2(3) of the Restitution Act, the persons entitled under the Restitution Act in relation to that property may make a claim in respect of which the remedy provided for is a privatisation decision concerning that property. According to Section 47(a), if property seized in a manner specified in Section 2(3) of the Restitution Act is not used or owned by any of the legal entities referred to in Section 1 of the present Act, any redress for the violation of rights over that property shall be settled under the Restitution Act. Competence of Authorities of the Czech Republic under the Extra-Judicial Rehabilitations Act No. 231/1991 Section 16(3) provides that any purchase price fixed before 1 June 1953 shall be deemed to have been recalculated at the rate of 5:1. Code of Civil Procedure According to Section 97(1), the defendant can submit his or her claims against the claimant by way of a reciprocal action. Charter of Fundamental Rights and Freedoms Article 11 § 1 provides inter alia that everybody has the right to own property. The property rights of every owner are equal in the eyes of the law and benefit from the same legal protection. | 0 |
dev | 001-82276 | ENG | TUR | ADMISSIBILITY | 2,007 | YILDIRIM v. TURKEY | 4 | Inadmissible | David Thór Björgvinsson | The applicant, Mr Halil Yıldırım, is a Turkish national who was born in 1966 and lives in Şanlıurfa. He was represented before the Court by Mr M. A. Altunkalem, a lawyer practising in Diyarbakır. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was working as a driver at the Şanlıurfa fire department at the time of the events. An undercover agent of the Anti-Smuggling and Organised Crime Department of the Şanlıurfa Security Directorate (hereinafter: “the Security Directorate”) received information that the applicant was selling Kalashnikov cartridges. After having received information that the applicant had just returned from Syria, the police officers at the Security Directorate searched the applicant’s house on 24 April 2002 and retrieved ninety-five Kalashnikov cartridges. The applicant was arrested. The applicant maintains that he was beaten by 4 or 5 police officers during arrest. He further claims that while he was held in detention he was beaten, given electric shocks and hosed with cold water. On the same day, at around 8.10 p.m., the applicant was examined by a doctor at Şanlıurfa State Hospital. According to the medical report issued in this respect, the applicant did not bear any physical signs of illtreatment. According to a report drafted by a police officer and signed by the applicant, co-accused and a lawyer, the applicant met with his lawyer on 26 April 2002 at 5.50 p.m. On the same day the applicant was interrogated. He was informed of his rights, particularly his right to a lawyer, which he waived. The applicant claimed, inter alia, that S.Ç. owed him money and that he took Kalashnikov cartridges from him as a guarantee of payment. He further submitted that he later gave 1,185 of these cartridges to B.A. as a guarantee for his own debt. In the evening of 26 April 2002 the applicant was examined by a doctor at Şanlıurfa State Hospital. According to the medical report issued the same day, the applicant did not bear any physical signs of ill-treatment. On 27 April 2002 the applicant was brought before the Şanlıurfa public prosecutor. He was informed of his rights, particularly his right to a lawyer which he initially waived. The applicant later changed his mind and his lawyer, Mr H.A., was present at the interrogation. The applicant acknowledged his statements made to the police and reiterated that S.Ç. had given him 1,200 Kalashnikov cartridges to pay for his debt and that he had given them to B.A. as a guarantee for his own debt to him. On 27 April 2002 the applicant was brought before the investigating judge of the Şanlıurfa Magistrate’s Court, who ordered his remand in custody. The applicant was placed in Şanlıurfa prison. On 30 April 2002 the applicant was examined by a prison doctor. The medical report drafted on that occasion found signs of blows on the applicant’s right shin bone in 6 or 7 places. On 24 May 2002 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment with the same court against the applicant and two others, accusing them of smuggling 1,280 Kalashnikov bullets from Syria on 24 April 2002 and of being in possession of unlicensed bullets. On 30 May 2002 the applicant met with his lawyer. The latter petitioned the authorities for a further medical report. On 31 May 2002 the applicant was examined by a doctor at Şanlıurfa State Hospital. According to the medical report issued the same day, the applicant had an old ecchimose below his right knee. On 31 May 2002 the prison director sent these reports to the Şanlıurfa public prosecutor’s office, in order that they be deposited in the case file before the Diyarbakır State Security Court. On 2 July 2002 the applicant’s lawyer submitted a petition to the court requesting the applicant’s release. He also stated that the applicant had been subjected to serious ill-treatment whilst in police custody, as was shown in the medical reports. He requested the prosecuting authorities to launch an investigation into the allegation of illtreatment. In a hearing held on 9 July 2002 the applicant acknowledged the contents of his statements made to the police, the public prosecutor and the investigating judge. He reiterated that S.Ç. gave him a bag for safekeeping and that he did not know there were bullets inside. He further submitted that he did not know how the 95 cartridges ended up in his house and that they must have fallen out in the car when he and S.Ç. went to give the bullets to B.A. The medical reports issued during his detention in police custody were read out to him. He stated that he had nothing to say. He was read out the medical report of 30 April 2002. The applicant submitted that the report was correct and that he was hit on his leg but as he was blindfolded he did not see how his leg was hit. On 10 July 2002 the applicant’s lawyer applied to the Diyarbakır State Security Court for a revision of the applicant’s continued detention. He also drew the court’s attention to the fact that no action had been taken in relation to the applicant’s complaint of ill-treatment. By a decision of 11 July 2002 a single judge of that court rejected this request and confirmed the applicant’s continued detention. In a hearing held on 6 February 2003 the applicant stated that he had been framed. On the same day, the court, taking into account the contradictions in the applicant’s statements throughout the proceedings, the statements of the co-accused and the material evidence, convicted the applicant of the offence and sentenced him to six years and eight months’ imprisonment and a fine. In his petition for appeal to the Court of Cassation dated 10 May 2003, the applicant’s lawyer repeated the allegation of ill-treatment. On 18 August 2003 the Court of Cassation dismissed the appeal and upheld the judgment of the Diyarbakır State Security Court. A description of the relevant domestic law at the material time can be found in Batı and others v. Turkey (nos. 33097/96 and 57834/00, §§ 96100, 3 June 2004). | 0 |
dev | 001-70681 | ENG | TUR | CHAMBER | 2,005 | CASE OF TANRIKOLU AND OTHERS v. TURKEY | 4 | Violation of Art. 6-1;Not necessary to examine Art. 6-3-c;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic and Convention proceedings | null | 4. The applicants, Temer Tanrıkolu, İbrahim Bağdu, M. Emin Tanrıkolu, Mehmet Tayşun, A. Menaf Akyol, M. Emin Tayşun, Lokman Akyol, Hamo Tayşun, Ramazan Atak, Hıdır Şengil, Methi Tayşun, Abdurrahman Mungan, M. Sait Çek, Faruk Dilek, Ramazan Tanrıkolu, Hasan Arsu and Abdulaziz Arsu, are Turkish nationals, who were born in 1977, 1948, 1960, 1956, 1950, 1953, 1971, 1950, 1960, 1977, 1973, 1975, 1964, 1974, 1975, 1949 and 1973 respectively. They all live in Silopi in south-east Turkey. 5. Between November 1992 and February 1993 the applicants were taken into police custody in Silopi by policemen on suspicion of aiding and abetting an illegal organisation, namely the PKK. 6. At the end of their police custody, the applicants were brought before the Şırnak Magistrate's Court in Criminal Matters and were subsequently placed in detention on remand. 7. On an unspecified date in 1993 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment. He accused the applicants of aiding and abetting an illegal organisation, and called for them to be sentenced pursuant to Article 169 of the Criminal Code. 8. The applicants were all released pending trial. 9. On 6 February 1996 the Diyarbakır State Security Court, which was composed of three judges including a military judge, found the applicants guilty as charged and sentenced them to different terms of imprisonment, ranging between two years and six months and three years and nine months. 10. On 9 June 1997 the Court of Cassation, upholding the Diyarbakır State Security Court's reasoning and assessment of evidence, dismissed the applicants' request for appeal. 11. A full description of the domestic law may be found in Özel v. Turkey (no. 42739/98, §§ 20-21, 7 November 2002). | 1 |
dev | 001-75142 | ENG | TUR | ADMISSIBILITY | 2,006 | HAKAN AND OTHERS v. TURKEY | 4 | Inadmissible | null | The applicants, Mr Ağa Hakan, Mr Abdulkerim Hakan, Mr Abdullah Hakan and Mr Abdulhekim Hakan, are Turkish nationals. They are represented before the Court by Mr Bekir Kaya, a lawyer practising in İstanbul. The facts of the cases, as submitted by the parties, may be summarised as follows. Until 1997 the applicants lived in Yanıkçay, a village of the Gevaş district in Van. It is to be noted that the applicants did not submit any certificate attesting their ownership of property in Yanıkçay. On 10 October 1997 the applicants left their village due to pressure from the security forces. On 13 December 1997 the security forces set fire to the houses and livestock of the applicants. Two inhabitants of Yanıkçay, Mr Muzaffer Şeker and Mr Mustafa Ülger witnessed the incident. On an unknown date, approximately twenty villagers from Yanıkçay were required to go to the District Gendarmerie Command in Gevaş. They were then compelled to sign statements that the houses had been burned by members of the PKK (Kurdish Workers’ Party). On 16 December 1997 Mr Ağa Hakan, Mr Abdulkerim Hakan and Mr Abdullah Hakan filed a petition with the Public Prosecutor’s office in Gevaş, complaining about the destruction of their property and requestiong redress for the damages they had suffered. On 17 March 1998 the Gevaş Public Prosecutor issued a permenant search warrant to find the perpetrators of the burning down of the applicants’ property. On 15 October 2001 the District Gendarmerie Command in Gevaş informed the Public Prosecutor’s office in Gevaş that the perpetrators of the offence had been neither identified nor captured. On 25 October 2001 Mr Ağa Hakan, Mr Abdulkerim Hakan and Mr Abdullah Hakan filed further petitions with the Public Prosecutor’s office in Gevaş and the Governor’s office in Van reiterating their demand for redress for the damage they had suffered. On 26 October 2001 the Public Prosecutor’s office in Gevaş sent the permanent search warrant and the Gevaş District Gendarmerie Command’s letter of 15 October 2001 to the applicants. The investigation carried out by the authorities indicated that the applicants had left their village of their own will. Statements taken from the applicants’ fellow villagers established that the security forces had not forced the applicants to leave their village. The applicants had left their village, taking their all belongings with them, two months before the burning of their houses. In their petitions filed with the Gevaş Public Prosecutor’s office and in their statements to the Public Prosecutor, the applicants never claimed that they had been forcibly evicted by the security forces. Two eye-witnesses to the burning of the applicants’ houses stated that they had not seen anybody suspicious who could have perpetrated the burning down of the applicants’ abandoned houses. However, a former PKK militant A.U. stated that the houses had been burned by the PKK for revenge from the inhabitants of the Yanıkçay village. Currently there was no obstacle preventing villagers from returning to their homes and possessions in their villages. Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages. On 14 July 2004 the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by the Grand National Assembly and entered into force on 27 July 2004 (“Compensation Law”). That Law provided for a sufficient remedy capable of redressing the Convention grievances of persons who were denied access to their possessions in their villages. In that connection Damage Assessment and Compensation Commissions were set up in seventy-six provinces. Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation. The number of persons applying to these commissions had already attained approximately 170,000. A further 800 persons, whose applications were pending before the Court, had also applied to the compensation commissions. Many villagers had already been awarded compensation for the damage they had sustained. A description of the relevant domestic law can be found in the Court’s decision of İçyer v. Turkey (no. 18888/02, §§ 44-54, 12 January 2006) and in its judgment of Doğan and Others v. Turkey (nos. 88038811/02, 8813/02 and 8815-8819/02, §§ 31-35, ECHR 2004-VI). | 0 |
dev | 001-95801 | ENG | ROU | CHAMBER | 2,009 | CASE OF IEREMEIOV v. ROMANIA (No. 1) | 3 | Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 10;Non-pecuniary damage - award | Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra | 5. The applicant was born in 1967 and lives in Timişoara. 6. At the material time he was a journalist at the newspaper Ziua de Vest in Timişoara. 7. On 16 June 2000 the applicant attended an official meeting between the prefect and representatives of the interns from the hospitals in the county who were on strike. Ms C.M.O., one of the interns' representatives, stated: “Because I refused to prostitute myself with Doctor [P.], Professor [D.] dismissed me from the Cardiology Centre.” 8. On 19 June 2000 the newspaper Ziua de Vest published an article by the applicant. The relevant parts read as follows: “Scandal in the medical world in Timişoara The president of the Interns Association in Timiş County, Dr [D.D.], says that 'Dr [P.] behaves in certain ways that we all know' A medical intern from Timişoara, whose name we shall not yet make public, declared on Friday, in front of the prefect [L.B.], that the director of the Timiş Public Health Direction, Dr [P.], had attempted to sexually blackmail her. 'Because I refused to prostitute myself with Doctor [P.], Professor [D.] dismissed me from the Cardiology Centre' declared the intern. The president of the Interns Association in Timişoara, Dr [D.D.], declared that he had not known about this case of sexual harassment, which he learned of only at the meeting with the prefect. 'Dr [P.] behaves in certain ways that we all know' said Dr [D.D.] ... Although we tried to get his comments on the accusations brought against him, Dr [P.] was unavailable.” A photo of P. featured in the article. 9. On 21 June 2000 P. lodged a criminal complaint for defamation against the applicant with Timişoara District Court. His complaint also concerned the company which published the newspaper. 10. The District Court heard evidence from C.M.O., who admitted to having made the assertion reproduced by the applicant but denied having given her permission for its publication. The prefect also confirmed that an intern had accused P. of sexual aggression during the meeting. 11. The applicant was heard by the court on two occasions. He pleaded not guilty and relied in his defence on his right to freedom of expression and the right to provide information about public figures. 12. On 20 March 2001 the District Court gave judgment. It acquitted the applicant on the ground that he had not intended to denigrate P. It found that the expression “sexual harassment” had not harmed P.'s dignity as it was a stylistic choice by the applicant. 13. Both parties appealed to the Timişoara County Court. On 18 May 2001 the court was addressed by the parties' counsels, who defended orally the grounds for their respective appeals. P.'s lawyer asked for the applicant's conviction. The applicant's lawyer and the company's representative requested that P. be compelled to pay court fees. The applicant was invited to speak only before the end of the hearing (ultimul cuvânt al inculpatului). In his address he asked that P.'s appeal be dismissed. 14. The final decision was adopted on the same day. The County Court quashed the judgment of 20 March 2001, re-examined the evidence and found as follows: “[the journalist] did not confine himself to merely providing information about the criticisms [expressed against P.] but added his own appreciation, which went beyond [C.M.O.]'s statements. ... Through its title and content, the article contains untrue statements and allegations and personal appreciations by [the applicant] which, if true, would render the victim liable to a criminal penalty or expose him to public opprobrium. By publishing the victim's photo, and by presenting the information that a scandal had been caused in the Timişoara medical world by [P.]'s behaviour ... [the applicant] acted with intent to denigrate the victim, the article being manifestly defamatory. The words “sexual blackmail and sexual harassment” cannot be regarded as having stylistic and literary value when an individual's image, dignity and honour are at stake.” 15. The County Court noted that a certain degree of aggressiveness was common in journalism. It therefore, although the facts met the legal criteria to constitute the criminal offence of defamation, the acts perpetrated and their consequences were not severe enough to come within the sphere of criminal law. Consequently, it acquitted the applicant and imposed an administrative fine of 500,000 Romanian lei (ROL). The court also found that the conditions had been met for the applicant's civil liability, and that of the publishing company, in respect of the prejudice caused to the victim. In consequence, it ordered the applicant and the company to pay ROL 5,000,000 to P. as compensation for non-pecuniary damage and ROL 2,000,000 for costs. Lastly, it ordered them to pay ROL 50,000 to the State in court fees. 16. On 3 October 2001 the applicant paid the administrative fine. 17. The relevant provisions of the Civil and Criminal Codes concerning insult and defamation and liability for paying damages in force at the material time are described in Barb v. Romania, no. 5945/03, §§ 19-20, 7 October 2008. 18. The Criminal Code has been amended repeatedly and in 2006 the Articles on insult and defamation were repealed (for details, see Cuc Pascu v. Romania, no. 36157/02, §§ 12-14, 16 September 2008). 19. However, in decision no. 62 of 18 January 2007 the Constitutional Court declared unconstitutional the removal from the Criminal Code of the Articles on insult and defamation. 20. Law no. 356/2006 amended the Criminal Code and made it mandatory for an appeal court to hear the accused where the first-instance court had acquitted him or her. Currently, where an appeal court quashes a judgment given by a first-instance court, it must decide on the evidence to be adduced and set a date on which it will take a statement from the accused if the latter was not heard or if he or she was acquitted by the first-instance court (Articles 38514 § 11 and 38516, as amended). | 1 |
dev | 001-60499 | ENG | GBR | CHAMBER | 2,002 | CASE OF WILLIS v. THE UNITED KINGDOM | 1 | Violation of Art. 14+P1-1;Not necessary to examine Art. 14+8;No violation of Art. 14+8 in connection with widow's pension;Not necessary to examine Art. 14+8 or 14+P1-1 in connection with alleged discrimination against applicant's late wife;No violation of Art. 13 | Matti Pellonpää;Nicolas Bratza | 7. The applicant is a British national born in 1956 and living in Bristol. 8. In December 1984 the applicant married Marlene Willis. They had two children: Natasha Uma, born on 24 March 1989, and Ross Amal, born on 2 August 1990. Mrs Willis died of cancer on 7 June 1996, at the age of 39. The applicant is the administrator of his late wife's estate. 9. Mrs Willis had been employed as a local authority housing officer. For the greater part of her married life, she was the primary breadwinner. She had paid full social-security contributions as an employed earner until 1994, and was subsequently entitled to contribution credits as a person unfit for work. On 3 November 1995 the applicant gave up work to nurse his wife and care for their children. Following his wife's death, he worked part time between 2 September 1996 and 6 November 1996, for an annual salary of 4,393 pounds sterling (GBP), but since this proved uneconomic he stopped working to care full time for the children. 10. On 4 November 1996 the applicant applied to the Benefits Agency for the payment of social-security benefits. He applied for benefits equivalent to those which a widow whose husband had died in similar circumstances to those of Mrs Willis would have been entitled, namely a widow's payment and a widowed mother's allowance, payable under the Social Security and Benefits Act 1992. 11. By a letter dated 18 November 1996, the Benefits Agency informed the applicant that the benefits he had claimed did not exist for widowers, and that his claim accordingly could not be accepted as valid. The letter continued: “I am afraid I can only explain that the Government says that it has no plans to introduce a widowers' pension on the same line as the existing widows' benefits. It may help if I explain the current policy underlying widows' benefits was established at a time when married women rarely worked. It is based on the assumption that women are more likely than men to have been financially dependent on their spouse's earnings and therefore more likely on widowhood to face greater financial hardship. The benefits themselves are concentrated on those widows who are perceived to have the greatest problems, those with children and older women who may have been out of the labour market for many years. It is accepted that social patterns have changed considerably since the provisions were first introduced. However, it is still broadly the case that on bereavement, women are more likely than men to be in financial need. For instance, most widowers of working age will have been in employment before the death of their wives. They will not therefore have the same degree of difficulty in supporting themselves as widows who may have been out of the labour market for some time and may find it difficult to obtain paid work. Women on average earn less than men. So even for women who have been working, the financial loss on widowhood is likely to be significantly more than for men. Widows' benefits are not means tested and are paid regardless of the level of the widows' earnings. The Government says that the extension of the benefits on the same basis to widowers would mean substantial extra expenditure in paying maintenance benefit to men who are likely to be already maintaining themselves by their earnings, and in some cases, very high earnings indeed. To make existing widows' benefits provisions available to widowers would add an estimated GBP 490 million to the annual Social Security budget. The Government is of the opinion that at a time when all areas of public expenditure are having to be carefully considered, this is simply not a best use of scarce resources. In making these points, the Government says that it is in no way minimising the sad problems faced by widowers, in particular those left with small children to care for. For them there are already available benefits such as Child Benefit and One Parent Benefit, together with the range of income-related benefits, for example, Income Support for those not in full time work and Family Credit for low paid workers. In the Government's view this remains the fairest way of providing benefits to meet specific need rather than an extension of widows' benefits along the lines suggested. ...” 12. The applicant lodged a statutory appeal against this decision on 17 February 1997. The Social Security Appeal Tribunal declined jurisdiction on the basis that no appealable decision had been made. 13. The applicant currently receives child benefit and, in respect of his son Ross, received a disability living allowance and an invalid care allowance for a period following his wife's death. He is also in receipt of a widower's pension under Mrs Willis's occupational pension scheme. The applicant has capital, much of which is derived from a joint endowment policy (for which he and Mrs Willis had paid premiums) which matured on Mrs Willis's death, from which he obtains a further income of about GBP 150 per month. Because of his savings, the applicant does not qualify for means-tested benefits such as income support or family credit. All the social-security benefits he receives would also be received by a widow, who would in addition be paid a widow's payment and a widowed mother's allowance. 14. Under United Kingdom law, certain social-security benefits, including widow's payment, widowed mother's allowance and widow's pension, are paid for out of the National Insurance Fund. By section 1 of the Social Security and Benefits Act 1992 (“the 1992 Act”), the funds required for paying such benefits are to be provided by means of contributions payable to the Secretary of State for Social Security by earners, employers and others, together with certain additions made to the Fund by Parliament. 15. Male and female earners are obliged to pay the same social-security contributions in accordance with their status as employed earners or self-employed earners. 16. Under section 36 of the 1992 Act, a woman who has been widowed is entitled to a widow's payment (a lump sum payment of GBP 1,000) if: (i) she is under pensionable age at the time when her husband died, or he was not then entitled to a Category A retirement pension; and (ii) her husband satisfied certain specified social-security contribution conditions set out in a schedule to the 1992 Act. 17. Under the relevant part of section 37 of the 1992 Act, a woman who has been widowed (and who has not remarried) is entitled to a mother's allowance on certain conditions, the following being the conditions relevant to the circumstance of the present case: (i) her husband satisfied the contribution conditions set out in a schedule to the Act; and (ii) she is entitled to receive child benefit in relation to a son or daughter of herself and her late husband. The widowed mother's allowance currently amounts to GBP 72.50 per week, with an extra GBP 9.70 per week in respect of the eldest eligible child, and a further GBP 11.35 per week in respect of other children. 18. Under section 38 of the 1992 Act, a woman who has been widowed (and who is not remarried) is entitled to a widow's pension if her husband satisfied the contribution conditions set out in a schedule to the Act; and (i) at the date of her husband's death she was over the age of 45 but under the age of 65; or (ii) she ceased to be entitled to a widowed mother's allowance at the time she was over the age of 45 but under the age of 65. If the applicant were a woman, he could look forward to entitlement to a widow's pension at some stage between 2006 and 2009, depending on when his youngest child ceased to be a dependant, at which time he would no longer be entitled to the widowed mother's allowance. 19. Section 1(1) of the 1992 Act, which applies to the applicant, provides that no entitlement to a benefit arises unless a claim for the benefit is made in the prescribed manner and within the prescribed time. At the relevant time, the time-limits for claiming a widow's payment and a widowed mother's allowance were set out in the Social Security (Claims and Payments) Regulations 1987 (Statutory Instrument 1987/1968), Regulation 19 of which provided: “(6) The prescribed time for claiming benefits not specified in column (1) of Schedule 4 shall be – ... (b) twelve months in the case of ... widow's benefit ... (7) The periods of six and twelve months prescribed by paragraph (6) are calculated from any day on which, apart from satisfying the condition of making a claim, the claimant is entitled to the benefit concerned.” In addition, section 1(2) of the Social Security Administration Act 1992 provides, in relation to claims for a widow's payment: “Where under subsection (1) above a person is required to make a claim or to be treated as making a claim for a benefit in order to be entitled to it – (a) if the benefit is a widow's payment, she shall not be entitled to it in respect of a death occurring more than 12 months before the date on which the claim is made or treated as made ... ” 20. The Welfare Reform and Pensions Act 1999 (“the 1999 Act”) introduces two new social-security benefits, the widowed parent's allowance and the bereavement allowance. The widowed parent's allowance replaces the widowed mother's allowance. The bereavement allowance replaces the widow's pension. Both are payable to men and women who meet the relevant qualifying conditions. The 1999 Act also introduces a new social-security payment, called a bereavement payment, payable both to men and women in place of the widow's payment. 21. The relevant parts of the Act came into force on 9 April 2001 and allow any man whose wife dies before, on or after that date, or any woman whose husband dies on or after that date, to apply for the widowed parent's allowance. It also allows any man whose wife dies on or after that date to apply for the bereavement payment or the bereavement allowance in exactly the same way as a woman whose husband dies on or after that date. 22. The transitional provisions of the 1999 Act preserve the entitlements of women under the 1992 Act whose husbands died before 9 April 2001. Such women thus continue to be entitled to the widow's payment, the widowed mother's allowance and the widow's pension where the relevant qualifying conditions are met. 23. On 14 February 2002 Mr Justice Moses delivered judgment in the High Court in a case brought by four claimants, all of whom were widowers claiming, inter alia, that their ineligibility for widows' benefits under the 1992 Act was discriminatory contrary to Article 14 of the Convention taken in conjunction with both Article 8 of the Convention and Article 1 of Protocol No. 1. Three of the claimants had been left with dependent children, with the result that the benefits at issue in their cases were the widow's payment and the widowed mother's allowance. The fourth claimant (Mr Naylor) had been left without dependent children, with the result that the benefits at issue in his case were the widow's payment and the widow's pension. 24. The defendant government department conceded before the High Court that there had been discrimination under Article 14 of the Convention taken in conjunction with Article 8 in relation to non-payment of the widowed mother's allowance. As regards the question of whether the claimants' complaints, in so far as they related to the widow's payment and the widow's pension, fell within the ambit of Article 8, Mr Justice Moses commented as follows: “In my view, the availability of pecuniary support afforded by Widow's Payment and Widow's Pension does have a significant effect on the relationship of a family prior to the death of the spouse. They form a significant part of a family's plans for a secure future. ... Financial planning seems to me to be a significant aspect of family life and the benefits play some part in allaying fears for the future of a surviving spouse. ... Moreover, Widow's Payments and Widow's Pensions form part of a congeries of provisions, all of which are designed to provide support to a surviving spouse at different stages of her life. Widow's Payments ... are one-off payments made immediately on bereavement. Widowed Mother's Allowances are paid whilst she looks after dependent children and Widow's Pension payable in the longer term between the ages of 45-65 when she has finished bringing up her children. Viewed as part of a package, the payments and pensions payable to a widow are bound to be of concern to the family before the death of the husband. Accordingly, for those reasons I conclude that the failure to make Widow's Payment and Widow's Pension available to a surviving widower falls within the ambit of Article 8(1). Thus Article 14 is itself engaged.” 25. In dismissing the claimants' arguments that the same complaints fell also within the ambit of Article 1 of Protocol No. 1, Mr Justice Moses commented: “... In order to establish that the benefits in issue are their possessions, the claimants must establish a pecuniary right based upon their contributions. Absent such contributions, they have no possession within the meaning of Article 1 of the First Protocol. There is no hint, in any of the cases that the [Strasbourg] Court intended to depart from the fundamental principle that to come within the ambit of Article 1 of the First Protocol, a property right must be established. ... ... A deceased widow's entitlement to benefits depends upon the contributions of the deceased husband. ... A widower has no entitlement under domestic legislation arising from the contributions of his deceased spouse. He thus has no entitlement and consequently no possession within the meaning of Article 1 of the First Protocol.” 26. Prior to his examination of whether there was objective justification for non-payment of the widow's pension to widowers, Mr Justice Moses observed: “Only Mr Naylor's case raises the issue of Widow's Pension. Although other claimants, in their written argument, raised the issue of future entitlement to Widow's Pension, such a claim is hypothetical, since they are too young to claim it now and may never become entitled should they re-marry, ... or should they co-habit ...” Mr Justice Moses concluded that there was objective justification for the difference in treatment between widows and widowers as regards entitlement to a widow's pension under the 1992 Act. | 1 |
dev | 001-122270 | ENG | SVK | ADMISSIBILITY | 2,013 | ŠIMKA v. SLOVAKIA | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria | 1. The applicant, Mr Vladislav Šimka, is a Slovak national who was born in 1956 and lives in Bratislava. He was represented before the Court by Ms V. Strážnická, a lawyer practising in Bratislava. 3. The applicant held the post of Head of Service Office (vedúci služobného úradu) at the Ministry of the Interior. 4. On 1 June 2005 the President of the State Civil Service Office (Úrad pre štátnu službu) removed the applicant from that post with effect from 2 June 2005, with reference to section 10(4) and (11)(d) as well as section 27(e) of the State Civil Service Act 2001. The decision indicated that it had been taken at the behest of the Minister of the Interior. 5. Subsequently the applicant declined the offer of a transfer to a different position within the Ministry of the Interior. 6. On 8 June 2005 the Ministry of the Interior issued a decision indicating that the applicant had lost the status of State civil servant on that day. 7. On 15 June 2005 the applicant appealed against the decisions of 1 June 2005. He argued that neither the decision nor the Minister’s letter to which it referred gave any reasons for his removal. The decision interfered with his fundamental rights and was discriminatory. In particular, section 10(11)(d) of the State Civil Service Act 2001 allowed for removal of the then thirteen heads of different ministries Offices solely on the recommendation of the Minister concerned. However, some 40,000 State civil servants holding different posts could only be removed for reasons provided for by the law. The decision to remove the applicant without justification was also contrary to the principles underlying the Administrative Proceedings Act 1967. 8. On 21 June 2005 the applicant appealed against the decision terminating his status as State civil servant. He gave reasons for his appeal against the decision. 9. On 29 June and 24 August 2005 respectively the President of the State Civil Service Office dismissed both the applicant’s appeals. Those decisions stated that under section 10(11)(d) of the State Civil Service Act 2001 the President of the State Civil Service Office was obliged to remove the head of a ministry office at the behest of the Minister concerned. There was no requirement for reasons to be given for such a recommendation. The subsequent termination of the applicant’s status as State civil servant conformed to section 40(2)(c) of the State Civil Service Act 2001. 10. On 30 August 2005 the applicant brought an action with the Supreme Court. He sought a review of the administrative decisions of 1 June and 29 June 2005 removing him from the post of Head of Office at the Ministry of the Interior. He argued that he had been discriminated against in that he had been removed without reasons being given. The applicant proposed that the Supreme Court should stay the proceedings on his action and request the Constitutional Court to examine the conformity of section 10(11)(d) of the State Civil Service Act 2001 with, inter alia, Article 36(b) of the Constitution, Article 14 of the Convention, and directives of the European Union. 11. On 28 September 2005 the Supreme Court transferred the case to the Bratislava Regional Court for reasons of jurisdiction. 12. On 30 July 2007 the Bratislava Regional Court stayed the proceedings, as it considered the relevant provision of the State Civil Service Act 2001 to run contrary to the Constitution and Article 14 of the Convention. It referred that issue for determination by the Constitutional Court. 13. On 9 April 2008 the Constitutional Court discontinued the proceedings, because section 10(11)(d) of the State Civil Service Act 2001 had been repealed with effect from 1 January 2007. The decision stated that the Constitutional Court’s power to review conformity of legal rules with the Constitution extended exclusively to those rules which were actually in force. Three constitutional judges attached a dissenting opinion to that conclusion. 14. On 2 October 2008 the Bratislava Regional Court dismissed the applicant’s action. It found that the applicant had been removed at the behest of the Minister of the Interior pursuant to section 10(11)(d) of the State Civil Service Act 2001, as in force at the relevant time. There had been no breach of the applicable law in that context. 15. The applicant appealed. He noted that the Regional Court itself had expressed the view that the provision under which the applicant had been removed ran contrary to the Constitution and international treaties by which Slovakia was bound. In the absence of a decision of the Constitutional Court on conformity with the Constitution of the relevant legal rule, the issue fell to be determined by the ordinary court dealing with the case. To proceed in a different manner would amount to a denial of justice. 16. On 21 October 2009 the Supreme Court upheld the first-instance judgment. It held that the applicant’s removal from post had been in accordance with the law. The ordinary courts within the administrative judiciary were not called upon to determine conflicts of law. Their role was restricted to examining whether administrative decisions complied with applicable law. 17. On 13 September 2005 the applicant brought an action with the Supreme Court in which he challenged the decisions of 8 June and 24 August 2005 terminating his status as civil servant. With reference to the reasons for his action of 30 August 2005 seeking review of the administrative decisions, the applicant argued that the contested decisions were unlawful and contrary to the Constitution and international treaties by which Slovakia was bound. As in his previous action, the applicant asked for the proceedings to be stayed and for the Constitutional Court to be petitioned for a review of the constitutionality of the relevant provision of the State Civil Service Act 2001. 18. On 26 October 2005 the Supreme Court transferred the case to the Bratislava Regional Court for reasons of jurisdiction. 19. On 2 October 2008 the Regional Court dismissed the action. It noted that, following his removal as Head of Office at the Ministry of the Interior, the applicant had been offered three different posts at that Ministry. After he had declined those offers, his status as State civil servant had been terminated pursuant to section 40(2)(c) of the State Civil Service Act 2001. There had been no breach of the applicable law in that context. 20. On 30 October 2008 the applicant appealed. He argued that his removal from the position of Head of Office had been unlawful and that judicial proceedings concerning that issue were pending. The applicant asked for the proceedings to be discontinued pending the final determination of the action concerning the lawfulness of his removal. 21. On 21 October 2009 the Supreme Court upheld the first-instance judgment. With reference to the reasons for its judgment of 21 October 2009 it concluded that the applicant’s status as civil servant had been terminated in accordance with the law. 22. On 18 January 2010 the applicant lodged a complaint with the Constitutional Court. He alleged that the Supreme Court’s two judgments of 21 October 2009 breached his rights under Articles 6 § 1 and 14 of the Convention, as well as their constitutional equivalents, and also his right under Article 36b of the Constitution to protection against arbitrary dismissal and discrimination in employment. In particular, the applicant asserted that the ordinary courts had decided arbitrarily, while disregarding the discriminatory nature of the legal provision pursuant to which he had been removed. 23. On 5 February 2010 the Constitutional Court dismissed the complaint. It noted that the primary issue was conformity of the relevant statutory provision with the Constitution and international treaties. However, such decisions lay within the power of the Constitutional Court in plenary session, and they could not be addressed in the context of individual complaints under Article 127 of the Constitution. In those circumstances, both the Constitutional Court and the ordinary courts were bound by the presumption that the relevant statutory provision was in conformity with the Constitution. 24. The Constitutional Court concluded that in the judgments complained of the Supreme Court had given relevant reasons for its conclusions which were not arbitrary. 25. Article 7 § 5 provides, inter alia, that international treaties on human rights ratified and promulgated in accordance with the law take precedence over laws. 26. Article 36(b) guarantees protection for employees against arbitrary dismissal and discrimination. 27. Pursuant to Article 125 § 1(a), the Constitutional Court decides on conformity of laws with the Constitution, constitutional laws, and international treaties approved by the National Council which have been duly ratified and promulgated. 28. Article 127 § 1 entitles the Constitutional Court to 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 Slovakia, unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 29. Article 144 § 1 provides for independence of judges in the exercise of their function. When deciding on cases judges are bound by the Constitution, constitutional laws and international treaties referred to, inter alia, in Article 7 § 5 of the Constitution and laws. 30. Pursuant to Article 144 § 2, where a court considers that a legally binding legal rule or a part thereof bearing on the matter before it is contrary to the Constitution, a constitutional law, an international treaty within the meaning of Article 7 § 5, or a law, it is to stay the proceedings and petition for proceedings to be brought under Article 125 § 1 of the Constitution. The legal opinion set out in the Constitutional Court’s decision is binding on the court concerned. 31. Under Article 152 § 4, the interpretation and application of constitutional laws, laws and other generally binding legal rules must conform to the Constitution. 32. Pursuant to Article 109 § 1(b), a court stays proceedings where, before determination of the merits, it concludes that the generally binding legal rule bearing on the case before it is contrary to the Constitution, a law, or an international treaty by which Slovakia is bound. In such an event it petitions the Constitutional Court for determination of that issue. 33. At the material time the relevant provisions of the State Civil Service Act 2001 (Zákon o štátnej službe a zmene niektorých zákonov) provided as follows. 34. Pursuant to section 1(1), the purpose of the Act is to govern legal relations in the context of the State civil service, namely the rights and obligations of the State and the civil servant in that context. Subsection 2 of section 1 lists professionalism, political independence and impartiality among the principles on which the State civil service is built. 35. Section 7(1)(a) lists ministries and other central State administration bodies as “service offices” (služobný úrad) for the purpose of the Act. 36. Pursuant to section 10(1), the head of a service office is the hierarchical superior of all the employees working in that service office. Subsection 3 of section 10 provides for appointment of heads of service offices at ministries at the behest of the minister concerned from among applicants who have been successful in the selection process. 37. Section 10(11) provides for dismissal of a head of a service office at a ministry in the following cases: (a) failure to meet objectives set; (b) inability, for health reasons, to carry out the required duties for more than six months; (c) at his or her own written request; (d) on the Minister’s written recommendation; and (e) where the service office concerned has ceased to exist. 38. Sub-section 12 of section 10 provides for a head of a service office who has been removed to be transferred to a different appropriate civil service post unless a different agreement is reached. 39. Section 40(2)(c) allows for termination of a person’s status as a State civil servant where a head of a service office who has been removed cannot be transferred to an equivalent post because no such equivalent post exists, and where no other agreement has been reached. Two months’ salary is to be paid to the person concerned in such a case. 40. With effect from 1 January 2007 the State Civil Service Act 2001 was amended in that, inter alia, subsections 9 to 13 were deleted from section 10. The reports accompanying the draft amendments indicated that their purpose was to eliminate shortcomings resulting from earlier amendments and to harmonise the removal of heads of service offices who fell under the direct managerial responsibility of politically nominated superiors at ministries and other central authorities of the State administration. | 0 |
dev | 001-23291 | ENG | NLD | ADMISSIBILITY | 2,003 | POLMAN v. THE NETHERLANDS | 4 | Inadmissible | Gaukur Jörundsson | The applicant, Mr Machiel J. Polman, is a Netherlands national, who was born in 1958 and lives in Arnhem. He is represented before the Court by Mr J.H. Sassen, a lawyer practising in Arnhem. The facts of the case, as submitted by the parties, may be summarised as follows. On 21 December 1995 the applicant’s ex-wife requested the Regional Court (arrondissementsrechtbank) of Arnhem to establish a maintenance arrangement (alimentatievoorziening) for herself and the two children born of their marriage. The Regional Court acceded to this request and ordered the applicant to pay monthly amounts of maintenance both to his children and his ex-wife. The applicant lodged an appeal with the Court of Appeal (gerechtshof) of Arnhem, which quashed the decision of the Regional Court and reduced the amount of the applicant’s maintenance obligations. As the applicant considered that the reasoning and calculations applied by the Court of Appeal were both incorrect and incomprehensible, he lodged an appeal on points of law (beroep in cassatie) with the Supreme Court (Hoge Raad). In his advisory opinion of 15 May 1998, one of the advocates-general (advocaten-generaal) of the Supreme Court recommended that the appeal be dismissed. A reply to this opinion was sent to the Supreme Court by counsel for the applicant on 28 May 1998. According to a stamp placed on the reply, it was received on the same day. The Supreme Court (civil-law division, Civiele Kamer) rejected the appeal on 4 September 1998. The decision (beschikking) stated that the applicant’s ex-wife had requested the Supreme Court to reject the appeal and that the advisory opinion of the advocate-general had also proposed that the appeal be dismissed. The decision did not mention that the applicant, or counsel on his behalf, had replied to that opinion or that account had been taken of that reply. In dismissing the appeal, the Supreme Court referred to Article 101a of the Judiciary (Organisation) Act (Wet op de Rechterlijke Organisatie) according to which the Supreme Court, if it considered that a complaint did not provide grounds for overturning the impugned decision and did not require answers to questions of law in the interests of the unity or development of the law, could, when giving reasons for its decision, limit itself to that finding. At the time relevant to the present case, Article 328 § 1 of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering, “CCP”) provided that neither the parties nor their representatives were allowed to address the court after the public prosecution service had presented its opinion (Article 328 § 1 in conjunction with Article 326 CCP). However, pursuant to Article 328 § 2, simple notes (eenvoudige aantekeningen) contesting facts, which the parties believed had been presented incorrectly by the public prosecution service, could be submitted to the President of the court by the parties or their representatives. In a judgment of 28 March 1997, the Supreme Court held that it was free to take cognisance of comments submitted in response to the opinion issued by the public prosecution service by one of the parties unless this ran counter to the requirements of due process, seen also in the light of the interests of the other party (Nederlandse Jurisprudentie (NJ) 1997, no. 581). A similar reasoning was adopted by the Supreme Court in a judgment of 12 September 1997 (NJ 1998, no. 687), in which it held, with reference to the Court’s judgment in the case of Vermeulen v. Belgium (judgment of 20 February 1996, Reports of Judgments and Decisions 1996-I), as follows: “... where Article 328 [of the Code of Civil Procedure] prevents parties from responding to the advisory opinion of the public prosecution service as they see fit, [this provision] should be deemed inapplicable as being incompatible with the provisions of Article 6 of the Convention, as interpreted in the case-law of the European Court of Human Rights (...). No restrictions other than those arising from due process, for instance in connection with the interests of the other party, apply to this document [i.e. the reply to the advisory opinion of the public prosecution service].” In order to observe the principle of due process, the Supreme Court allowed a period of two weeks for the submission of the response to the advisory opinion of the public prosecution service. On 1 January 2002 an amended Article 44 CCP entered into force, paragraph 3 of which gives parties the right to submit written comments in reply to the advisory opinion issued by the Procurator-General of the Supreme Court within two weeks of the transmission of the advisory opinion to them. At the time of the decision in the present case, September 1998, the general practice of the Supreme Court was to mention in its judgment or decision that a reply to the advisory opinion had been submitted. This was established as general practice in an internal decision (intern besluit) of the civil-law division of the Supreme Court of 25 June 1992, but the practice existed even before that time. The internal decision was not published. | 0 |
dev | 001-95756 | ENG | POL | ADMISSIBILITY | 2,009 | ROGOZINSKI AND OTHERS v. POLAND | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | The applicants, Mr Henryk Rogoziński, Mr Marek Bartkowski and Mr Andrzej Kulecki are Polish nationals who were born in 1950, 1948 and 1946 respectively and live in Gietrzwałd. They were represented before the Court by Mr L. Obara, a lawyer practising in Olsztyn. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz. In 1992 the applicants agreed with the local branch of the State-run electricity supply company (“the company”) that they would finance and build on their land an electricity installation connecting their properties to the general electricity network operated by that company (high voltage transformer and cables). They had such an installation built and financed it from their own resources, paying PLZ 270,000,000 in pre-denomination currency – the equivalent of PLN 27,000 (approximately EUR 6,800 today). In 1993, when the installation was ready, a disagreement arose between the applicants and the electricity supply company as to the reimbursement of the costs the applicants had incurred. The company refused to reimburse the costs. As a result, the installation became operational and the company took it over, connected it to the electricity network and started normal exploitation. In October 1993 the applicants refused to sign documents confirming that ownership of the high-voltage transformer, the essential part of the installation, had been taken over by the company ex lege. They only signed documents confirming the transfer of ownership of the cables to the company. In the same month they submitted a letter to the company informing it that they refused to acknowledge the transfer of ownership. In the following years, from 1995 at the earliest, the company connected 24 new electricity users to the network built by the applicants (after the applicants had sold their land to these persons on unspecified dates), charged each of them for this service and for a part of the costs borne in connection with building the installation and operated the service normally, providing electricity to them at normal prices, using the installation built by the applicants. The applicants apparently repeatedly tried to obtain reimbursement of the costs they had incurred in the amount of PLN 112,000, but received oral refusals. In August 2000 the applicants requested the company in writing to reimburse the costs of the construction they had borne in 1992-1993 as well as the amounts the company had charged the 24 users for connecting them to the network. They claimed PLN 112,000 (approximately EUR 27,300 today). The company refused, stating that ownership of the network had been transferred to it in October 1993. In a letter of 6 September 2001 the Ombudsman, in reply to the applicants’ request to intervene in their case, informed them that their case was of a civil-law character and could, as such, be pursued before the civil courts. The Ombudsman also summarised a judgment of the Constitutional Court of 1991 (see Relevant domestic law below) and emphasised that after this judgment had been given, the Anti-Monopoly Court had repeatedly stated in its judgments that the practice of the State-run electricity supply company amounted to an abuse of a dominant market position. The applicants were also informed that there had been judgments of the Supreme Court to the effect that in cases in which contracts concluded as a result of an abuse of a dominant market position were declared null and void, wronged consumers could claim unjust enrichment under the provisions of the Civil Code on liability in tort. In November 2001 the applicants lodged an action against the company with the Olsztyn District Court. They sought payment of PLN 1,000 (EUR 250), seeking a judgment on the principle of their claim, and argued that they had never given their agreement to the company taking over ownership and using the installation which they had built and financed themselves. On 20 February 2003 the court dismissed the claim. It established that the applicants had built the installation and financed the building works from their own resources on the basis of technical documentation given to them by the electricity supply company. Upon completion of the installation they had refused to sign a document confirming the transfer of ownership of the main part of the installation to the company. The court further noted that at the relevant time, the 1984 Energy Act had been in force. The principles governing the settlement of any accounts between the State-run electricity supply company and landowners who had financed the construction of installations necessary to connect their properties to the electricity network were provided for in a 1964 Ordinance. Article 18 of this Ordinance provided that all electricity installations were the property of the State. Consequently, this Ordinance allowed for all the costs arising from the construction of electricity installations to be borne by individual owners, without any corresponding obligation on the part of the electricity company to reimburse them. Hence, the applicants were to bear these costs. At the time of the construction they had been aware of this as the position of the company had been set out in technical documents which they had received from the company. The applicants appealed, submitting that the defendant company had enriched itself at their expense since it had acquired ownership of the installation and had been exploiting it without having to compensate them in return. The appellate court upheld the judgment by a decision of 25 September 2003. It observed that the first-instance court had correctly found that the applicants had been aware that under the 1964 Ordinance the connection of the installation to the electricity network had depended on the transfer of ownership of the installation to the company. However, the lower court had erred in law in that it had overlooked a judgment of the Constitutional Court given in 1991. In that judgment that court had observed that the 1964 Ordinance could no longer be applied after the 1984 Energy Act had entered into force, because it had been passed ultra vires on the basis of the 1962 Energy Act. Hence, the 1964 Ordinance could not constitute the legal basis for the automatic transfer of ownership of the electricity installation to the electricity company. The Constitutional Court had indicated that the provisions of the Civil Code should apply to such a situation. In that connection, the Regional Court observed that under Article 49 of the Civil Code, electricity supply facilities did not constitute parts of land or a building if they were a part of an enterprise, including an electricity supply enterprise. Hence, such installations were not to be considered part of the applicants’ property and were to become the property of the defendant company. On the other hand, the provisions of the Civil Code on the obligation of an owner of property to reimburse expenditure incurred by a person in possession in order to improve the condition of this property or increase its value were not applicable to the applicants’ situation. This was because at the time when the applicants had borne the expenditure for the construction of the electricity installation, they had been the owners of the properties concerned. Hence, they were not users within the meaning of the relevant provisions of the Civil Code: they had incurred expenditure on their own property, not somebody else’s and, consequently, had no claim to reimbursement. The court finally observed that the applicants had known, when they incurred the expenditure for the construction of the electricity supply installation in 1993, that under the laws applicable at that time ownership of the installation would eventually be transferred to the electricity supply company. Hence, the company could not be said to have obtained unjust enrichment at the expense of the applicants. Further, it was the company which was obliged to operate and maintain these installations. Accordingly, it was fair that the company should take over their ownership. On 18 October 1997 the 1997 Constitution entered into force. Article 64 introduced the legal protection of private ownership. It reads: “1. Everyone shall have the right to ownership, other property rights and the right of succession. 2. Everyone, on an equal basis, shall receive legal protection regarding ownership, other property rights and the right of succession. 3. The right of ownership may only be limited by means of a statute and only to the extent that it does not violate the substance of such right.” Under Article 76 of the Constitution, public authorities shall protect consumers, customers, lessors or lessees against activities threatening their health, privacy and safety, as well as against dishonest market practices. The scope of such protection shall be specified by statute. In 1991 the Ombudsman requested the Constitutional Court to issue a binding interpretation of section 45 of the 1962 Energy Act in so far as it empowered the Council of Ministers to issue ordinances concerning the technical conditions on which individually built and financed electricity supply installations could be connected to the general electricity supply network. At that time, the Constitution adopted in 1952 was in force. In a resolution of 4 December 1991 (W 4/91) the Constitutional Court observed that the 1964 Ordinance, including Article 18 passed on the basis of the 1962 Energy Act, could no longer be applied after the 1984 Energy Act had entered into force. It further noted that in any event the ordinance had been passed ultra vires on the basis of the 1962 Energy Act. The court observed further that relations between the electricity supply company and owners of property were to be considered in the light of the Civil Code. As to the ownership of electricity supply installations situated on individual properties, Article 49 of the Civil Code made it clear that they did not constitute a part of such properties if they were a part of an enterprise, including an electricity supply enterprise. Hence, such installations were to become the property of that enterprise. Further, the provisions of the Civil Code on the obligation of an owner of property to reimburse expenditure incurred by a person in possession in order to improve the condition of this property or increase its value were not applicable to the situation of owners who had financed the construction of electricity supply installations. This was so because at the time of the financing and construction of such installations the owners were constructing them on their own properties. Hence, they could not have recourse to claims normally available to persons in possession against owners. Lastly, the court considered that the civil-law provisions on unjust enrichment could not be applied to the settlement of accounts between the owners and the electricity supply company. Owners who built and financed electricity supply installations on their properties knew and accepted in advance that after these installations were connected to the general electricity network they were to become the property of the company. The court was of the view that such an automatic transfer of ownership to the electricity supply company could not be said to run counter to “principles of community life” within the meaning of Article 5 of the Civil Code. This was because the connection of the installations to the electricity supply network was in the interest of owners. Moreover, after the electricity supply company had become the owner of the installations, it was obliged to operate them and to maintain them in proper technical condition; hence the fact that it had taken them over without being obliged to make any reimbursement was compatible with these principles. In a number of judgments given after 1991 the Supreme Court followed the reasoning based on the judgment of the Constitutional Court and dismissed claims for reimbursement of costs borne by owners to finance electricity supply installations, holding that upon their connection to the network the installation had become the property of the electricity supply company (I CRN 72/93, 23 June 1993, I CKN 608/99, 20 September 2000; resolution III CZP 169/94, 13 January 1995). However, in a judgment of 7 November 1997 (II CKN 424/97) the Supreme Court held that if the recipient of the electricity had financed elements of the installation necessary for the property to be connected to the network, he or she was entitled, on the basis of the provisions of civil law on unjust enrichment, to seek from the electricity company a reimbursement of the costs incurred. Subsequently, in judgments given in 2003 and 2004, the Supreme Court held that Article 49 of the Civil Code could not be interpreted to mean that the physical connection of such an installation, financed by a private party, to the electricity supply network automatically entailed a transfer of ownership of that installation to the electricity company (II CK 40/02, 26 February 2003; II CK 125/03, 10 October 2003; III SK 39/04, 13 May 2004; IV CZP 347/04, 3 December 2004). On 8 March 2006 the Supreme Court gave a resolution (III CZP 105/05) purporting to clarify the discrepancies which had arisen in the case-law concerning the relationship between the electricity supply company and owners who had financed electricity supply installations situated on their land. It reiterated the history of the relevant case-law and observed that a transfer of ownership could only originate in legal events, not in factual ones. It observed that the only function of Article 49 of the Civil Code was to establish the limits of operation of the principle superficies solo cedit, not to determine the financial relationship between the owner of the installation and the owner of the electricity network. Hence, the mere fact that an installation was connected to the network operated by the electricity supply company was not, of itself, sufficient to conclude that a transfer of ownership to the company automatically followed. The issue of ownership and of any settlement of accounts between the company and individual owners should be determined by contract, specifically addressing related issues. In 1997 the 1984 Energy Act was repealed and replaced by a new Energy Act. No provisions producing the same effect as Article 18 of the 1964 Ordinance are currently in force. The question of ownership of electricity supply installations and of the settlement of accounts arising out of the building and financing by private parties of electricity supply installations is now left to the parties, to be freely negotiated between the owners and the State-run electricity supply company. Article 49 of the Civil Code provides that water, electricity, power and similar installations do not constitute a part of land or buildings if they are a part of an enterprise. Article 113 § 1 of the Code of Civil Procedure provides that a party to the proceedings may ask the court competent to deal with the case to grant him or her an exemption from court fees provided that he submits a declaration to the effect that the fees required would entail a substantial reduction in his and his family’s standard of living. | 0 |
dev | 001-98152 | ENG | UKR | ADMISSIBILITY | 2,010 | SETTAROV v. UKRAINE | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva | The applicant, Mr Mammed Useinovich Settarov, is a Ukrainian national of Tatar origin who was born in 1975 and lives in Simferopol. He was represented before the Court by Mr N. Gurepka, a lawyer practising in the same city. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 24 April 2002 the applicant was involved in a car accident. According to a report drawn up by the police on the same day, the applicant had been responsible for the accident. On an unspecified date the police transferred the case to the Zaliznodorozhnyy District Court of Simferopol for adjudication. By a resolution of 14 August 2002, the court discontinued the proceedings against the applicant as time-barred. In the same resolution it found that the car accident had been caused by the applicant and that he had committed an offence provided for in Article 124 of the Code on Administrative Offences. The court’s finding was based on the police report, the conclusions of an expert concerning the accident and the victim’s statements. The court did not accept the applicant’s version of the event, though it was confirmed by two witnesses, who had been in the applicant’s car on 24 April 2002. Subsequently, the applicant asked the prosecutors to lodge a protest against the resolution of 14 August 2002. The prosecutors refused. The relevant law is summarised in Rybka v. Ukraine ((dec.), no. 10544/03, 17 November 2009). | 0 |
dev | 001-69667 | ENG | MDA | ADMISSIBILITY | 2,005 | CARMUIREA SPIRITUALA A MUSULMANILOR DIN REPUBLICA MOLDOVA v. MOLDOVA | 4 | Inadmissible | Nicolas Bratza | The applicant, Cârmuirea Spirituală a Musulmanilor din Republica Moldova, is an organisation of Muslims from the Republic of Moldova. They were represented before the Court by Mr S. Ostaf, a lawyer practising in Chişinău. The facts of the case, as submitted by the applicant, may be summarised as follows. On 25 July 2000 several natural persons joined together to form the applicant organisation – Cârmuirea Spirituală a Musulmanilor din Republica Moldova – an organisation of Muslims with the goal of having the Muslim religion officially registered in Moldova and building a Mosque in the city of Chişinău. On the same date the organisation adopted its articles of association. Pursuant to the Religious Denominations Act (see below), which requires religious denominations active in Moldovan territory to be recognised by means of a government decision, the applicant organisation applied for recognition on 6 September 2000. On 18 September 2000 the Government replied that they needed more time in order to examine and observe the activity of the organisation. On 25 October 2000 the applicant organisation lodged a new request with the Government. On 29 November 2000 the applicant organisation brought an action against the Government seeking an order to oblige the Government to reply to their request and to register their religion. On 12 February 2001 the Court of Appeal obliged the Government to give an answer to the applicant's request. It did not oblige the Government to register their religion. The applicant organisation appealed against this judgment. On 30 May 2001 the Supreme Court of Justice upheld the applicant's appeal, quashed the judgment of 12 February 2001 and sent the case for re-examination to the Court of Appeal in a different formation of judges. On 8 October 2001 the Court of Appeal decided that it could not oblige the Government to register the Muslim religion because the applicants had not submitted to the Government all the documents provided for in Articles 14 and 15 of the Religious Denominations Act (see below). The applicant appealed against this judgment. On 24 April 2002 the Supreme Court of Justice upheld the judgment of the Court of Appeal, confirming that the applicant organisation had failed to submit to the Government a document setting out the fundamental principles of their religion. The Supreme Court also noted that the Government had informed the applicant organisation on several occasions that the documentation it had provided was incomplete, but the applicant failed to remedy this. The relevant provisions of the Religious Denominations Act (Law no. 979-XII of 24 March 1992) in force at the material time read as follows: Everyone has the right to freedom of thought, conscience and religion. This right must be manifested in a spirit of tolerance and mutual respect and it includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. ... No one can be forced to practice or not to practice the rites of a denomination... ... The confessional intolerance, manifested through acts which obstruct the freedom of a denomination recognised by the State, constitutes an offence and shall be punished in accordance with the law. ... “Denominations shall be free to organise and operate freely on condition that their practices and rites do not contravene the Constitution, the present Act or the legislation in force. Denominations that do not comply with this condition shall not qualify for State recognition. ... In order to be able to organise and operate, denominations must be recognised by means of a government decision. Where a denomination fails to comply with the conditions laid down by the first paragraph of section 9 of the present Act, recognition may be withdrawn. “To qualify for recognition, each denomination shall submit to the Government, for scrutiny and approval, the articles of association governing its organisation and operation. The articles of association must contain information on its system of organisation and administration and on the fundamental principles of its beliefs.” | 0 |
dev | 001-67632 | ENG | GBR | ADMISSIBILITY | 2,004 | NORWOOD v. THE UNITED KINGDOM | 1 | Inadmissible | null | The applicant, Mr Mark Anthony Norwood, is a United Kingdom national who was born in 1962 and lives in a village near Oswestry, Shropshire. He was represented before the Court by Mr K. Lowry-Mullins, a lawyer practising in London. The applicant was a Regional Organiser for the British National Party (“BNP”: an extreme right wing political party). Between November 2001 and 9 January 2002 he displayed in the window of his first-floor flat a large poster (60 cm x 38 cm), supplied by the BNP, with a photograph of the Twin Towers in flame, the words “Islam out of Britain – Protect the British People” and a symbol of a crescent and star in a prohibition sign. The poster was removed by the police following a complaint from a member of the public. The following day a police officer contacted the applicant by telephone and invited him to come to the local police station for an interview. The applicant refused to attend. The applicant was then charged with an aggravated offence under section 5 of the Public Order Act 1986 (see below), of displaying, with hostility towards a racial or religious group, any writing, sign or other visible representation which is threatening, abusive or insulting, within the sight of a person likely to be caused harassment, alarm or distress by it. The applicant pleaded not guilty and argued, in his defence, that the poster referred to Islamic extremism and was not abusive or insulting, and that to convict him would infringe his right to freedom of expression under Article 10 of the Convention. On 13 December 2002 he was convicted of the offence by District Judge Browning at Oswestry Magistrates' Court, and fined GBP 300. The applicant appealed to the High Court, which dismissed his appeal on 3 July 2003. Lord Justice Auld held that the poster was “a public expression of attack on all Muslims in this country, urging all who might read it that followers of the Islamic religion here should be removed from it and warning that their presence here was a threat or a danger to the British people”. The applicant was charged with the offence of causing alarm or distress contrary to section 5(1)(b) of the Public Order Act 1986, aggravated in the manner provided by sections 28 and 31 of the Crime and Disorder Act 1998 (as amended by section 39 of the Anti-terrorism, Crime and Security Act 2001). Section 5 of the 1986 Act provides: “(1) A person is guilty of an offence if he; ... (b) displays any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby. (2) An offence under this section may be committed in a public or a private place ... (3) It is a defence for the accused to prove – (a) that he had no reason to believe that there was any person within hearing or sight who was likely to be caused harassment, alarm or distress, or (b) that he was inside a dwelling and had no reason to believe that the words or the behaviour used, or the writing, sign or other visible representation displayed would be heard or seen by a person outside that or any other dwelling, or (c) that his conduct was reasonable”. The 1986 Act further provides, in section 6(4): “A person is guilty of an offence under section 5 only if he intends ... the writing, sign or other visible representation to be threatening, abusive or insulting, or is aware that it may be threatening, abusive or insulting ...” The 1998 Act, as amended, introduced a statutory aggravation to a number of offences, including section 5 of the 1986 Act, carrying with it higher maximum penalties. According to sections 28(1)(b) and 31(1)(c) of the 1998 Act, an offence under section 5 of the 1986 Act is “racially or religiously aggravated” if it is “motivated (wholly or partly) by hostility towards members of a racial or religious group based on their membership of that group”. | 0 |
dev | 001-4520 | ENG | SWE | ADMISSIBILITY | 1,999 | ANDRIC v. SWEDEN | 3 | Inadmissible | Josep Casadevall | The applicant, born in 1968, presently resides in Karlskrona, Sweden. In his application form, he states that he has Croatian nationality. On 23 March 1994 the applicant arrived in Sweden and requested asylum. He stated that he was a Bosnian Catholic with Bosnian citizenship. Before leaving for Sweden, he had been living in Kraljeva Sutjeska. He held also a Croatian passport but this was to be considered as a travel document only. In 1992, while serving as a policeman in Utravnic, he refused to join the Muslim forces and, as a consequence, he was accused of having stolen 40 rifles from the police station. Later, he was placed in a special unit from which he could not resign. Resenting police attacks on Muslims and being unable to handle the mental and physical stress, he later deserted from that unit. Further, in June 1993 Kraljeva Sutjeska was occupied by Muslim troops. Along with other residents, the applicant participated in the defence of the village. Later, he was forced to leave the village and, on 15 March 1994, he arrived in Croatia with his parents and siblings. Allegedly, if returned to Croatia, he would risk being sent to Bosnia-Hercegovina where he could be sentenced to 20 years in prison for refusing to bear arms. On 30 September 1994 the National Immigration Board (Statens invandrarverk) rejected the applicant’s request and ordered his deportation to Croatia. The Board called into question the credibility of the applicant’s statements concerning his military and police activities as he had changed the statements during the course of the investigation. Finding that the applicant held both Bosnian and Croatian citizenship, the Board referred to a decision concerning asylum seekers with such double nationality taken by the Swedish Government on 26 May 1994. According to the decision, the prevailing situation in Bosnia-Hercegovina rendered deportations to that country impossible. Consequently, in assessing applications from these asylum seekers, the crucial question was whether they could be afforded protection in Croatia. The Board noted that, according to available information, persons in the applicant’s situation did not risk to be sent from Croatia to Bosnia-Hercegovina against their will. Moreover, no acts of warfare had taken place on Croatian territory for some time and a cease-fire had been agreed upon by the contending parties. Thus, there was no apparent risk that Croatian citizens in general would be forced to take part in armed conflict. Further, the applicant had failed to show that he personally faced such a risk. The applicant appealed to the Aliens Appeals Board (Utlänningsnämnden). On 29 March 1995 the Appeals Board, sharing the opinion of the Immigration Board, rejected the appeal. The applicant later requested a temporary residence permit in Sweden. By a decision of 20 June 1995 the Appeals Board granted the applicant such a permit until 1 December 1995 and quashed the deportation order. In so doing, the Board referred to a Government decision of 5 May 1995 according to which the worsened situation in Croatia constituted an impediment to the deportation of asylum seekers to that country. On 20 November 1995 the applicant submitted a new application for a residence permit. He referred to his previous statements. Further, in a final statement of 23 March 1997 he claimed that he should be granted a residence permit on humanitarian grounds on account of the time he had spent in Sweden. On 27 March 1997 the Immigration Board rejected the applicant’s new application and ordered his deportation to Croatia. The Board had regard to a guiding decision taken by the Swedish Government on 28 November 1996. In that decision the Government stated, inter alia, the following: (Translation) “As regards the situation in Croatia and the region, the ongoing peace process, based on a general agreement on peace in Bosnia-Hercegovina, has lead to stabilisation. The relations between Croatia and the Federal Republic of Yugoslavia have improved. Croatia has been admitted into the Council of Europe. Acts of warfare have not occurred on Croatian territory since August 1995. The risk of further conflicts appears unlikely. The general situation in Croatia has improved in such a way since the Government’s previous assessment in May 1995 that nowadays Croatian citizens can generally be afforded protection in Croatia.” The Immigration Board noted that the Swedish Government’s view had been confirmed by the United Nations High Commissioner for Refugees (UNHCR) and the Croatian Government. As in the previous decisions taken concerning the applicant, the Board found that he could not be sent back to Bosnia-Hercegovina. With regard to the possible deportation to Croatia, the Board noted that no new circumstances had been invoked by the applicant. Consequently, the Immigration Board shared the opinions expressed in its decision of 30 September 1994 and the decision taken by the Aliens Appeals Board on 29 March 1995. Furthermore, the Immigration Board found that there were no reasons of a humanitarian nature to grant the applicant a residence permit. Following the applicant’s appeal, the Appeals Board, on 2 June 1997, quashed the Immigration Board’s decision and referred the case back for re-examination. The Appeals Board found that no oral hearing had been held by the Immigration Board, as required by law. The Immigration Board held an oral hearing in the case on 11 June 1997 during which the applicant stated that, despite the fact that he held a Croatian passport, he did not possess the full rights of a Croatian citizen. Moreover, his parents and one of his brothers lived in Croatia where they had difficulties to support themselves. In Croatia nothing in particular would happen to the applicant but it would be hard for him to find work and a place to live. In a decision of 30 June 1997 the Immigration Board rejected the applicant’s new application on the same grounds as those expressed in the quashed decision. On 17 April 1998 the Appeals Board rejected the applicant’s appeal. The Appeals Board noted that the applicant is an ethnic Croat and, as such, would be at risk in his Bosnian home district, dominated by Muslims. However, the applicant’s statements did not indicate that he would face ill-treatment in Croatia. In medical certificates issued by the psychiatric clinic at the hospital in Karlskrona on 30 November 1998 and 19 January 1999 chief physician G.S. and therapist I.S. stated that the applicant had undergone treatment for some time at the clinic for a post-traumatic stress syndrome. Allegedly, the enforcement of the deportation order would seriously impair his mental state and could lead to a suicide attempt. The clinic submitted the first certificate to the Aliens Appeals Board and requested that the enforcement be suspended. By a decision of 9 December 1998 the Appeals Board suspended the enforcement of the deportation order for an unspecified period of time. | 0 |
dev | 001-61754 | ENG | NLD | CHAMBER | 2,004 | CASE OF MORSINK v. THE NETHERLANDS | 2 | Violation of Art. 5-1;Non-pecuniary damage - financial award | null | 8. The applicant was born in 1959 and is currently staying in a custodial clinic in the Netherlands. 9. Between 1975 and 1995, the applicant was convicted nineteen times of theft, criminal damage, assault and aggravated assault. On 21 January 1997 the Arnhem Regional Court (arrondissementsrechtbank) convicted the applicant of assault and assault occasioning grievous bodily harm committed in 1996. Having found that at the time of the commission of the offence the applicant was able to understand the unlawful nature of his acts but that his mental faculties were so poorly developed that he could only be held responsible for these offences to a limited degree, the Regional Court sentenced the applicant to fifteen months' imprisonment in combination with an order for his confinement in a custodial clinic (hereafter a “TBS order” - terbeschikkingstelling met bevel tot verpleging van overheidswege). 10. On 16 September 1997 the Arnhem Court of Appeal (gerechtshof) upheld the Regional Court's judgment of 21 January 1997. 11. Although the applicant had initially filed an appeal in cassation with the Supreme Court (Hoge Raad) against the judgment of 16 September 1997, he withdrew this appeal on 5 February 1998 when, after having served his prison sentence, the TBS order took effect. However, he was not transferred to a custodial clinic but was held in preplacement detention in an ordinary remand centre (huis van bewaring). 12. On 7 August 1998, the applicant filed an appeal with the Appeals Board (beroepscommissie) of the TBS Section of the Central Council for the Administration of Criminal Justice (Centrale Raad voor Strafrechtstoepassing) against the apparently automatic prolongation by three months of the six-month period of preplacement detention referred to in Article 12 of the Act on confinement to a custodial clinic of persons subject to a TBS order (Beginselenwet verpleging ter beschikking gestelden; hereinafter referred to as “the 1997 Act”). He submitted that this six-month period had expired, that he had not received written notification from the Minister of Justice that his preplacement detention would be extended by three months and, apparently, that the procedure for selection and placement in a custodial clinic in his case had not yet started. 13. Between 11 September and 11 November 1998 the applicant stayed in the Dr. F.S. Meijers Institute for the purpose of selection and subsequent placement in a custodial clinic. 14. On 5 November 1998 the applicant filed a further appeal with the Appeals Board against the second apparently automatic prolongation of his preplacement detention by three months. He requested the Appeals Board to suspend the second prolongation request. 15. On 10 November 1998 the Minister of Justice filed written submissions with the Appeals Board in response to those filed by the applicant. 16. On 11 November 1998 the President of the Appeals Board rejected the applicant's request to suspend the further execution of the Minister's decision of 2 November 1998 to prolong the applicant's preplacement detention in the remand centre by three months. Taking into account the fact that the applicant, at the time of the decision, had spent eight months awaiting placement in a custodial clinic and that, according to the medical report of 15 October 1998, there was no apparent urgent medical need for his placement in a custodial clinic, the President found no pressing interest which required the suspension of the Minister's decision. 17. On 28 January 1999 the applicant filed an appeal against the third apparently automatic prolongation by three months of his preplacement detention. On 15 February 1999 the Minister informed the applicant that he could not yet be admitted to a custodial clinic and that his preplacement detention had been prolonged by a further period of three months, i.e. from 31 January to 30 April 1999. 18. On 10 March 1999, after a hearing held on 19 January 1999, the Appeals Board gave its decision on the applicant's appeals against the first and second automatic prolongations of his preplacement detention. This decision, in so far as relevant, reads: “1. The challenged decisions '1.1 The Minister had not extended by 4 August 1998 the period within which the appellant should have been placed in a custodial clinic for persons subject to a TBS order. Pursuant to Article 12 § 3 of the [1997] Act ... , this failure is to be considered a decision to prolong this period. 1.2 The Minister had not extended by 2 November 1998 the period within which the appellant should have been placed in a custodial clinic for persons subject to a TBS order. Pursuant to Article 12 § 3 of the [1997] Act ..., this failure is to be considered a decision to prolong this period. ... 3. The facts ... The appellant's TBS order took effect on 5 February 1998. Since then, he has spent a transitory period in the G. remand centre awaiting placement in a custodial clinic. By letter of 2 September 1998 the Minister informed the appellant that he could not yet be placed in a custodial clinic and that the transitory period (passantentermijn) pending his placement in a custodial clinic had, for the time being, been ipso jure prolonged by three months from 4 August 1998 to 2 November 1998 ... On 16 October 1998 the appellant was heard by a penitentiary adviser. By letter of 2 November 1998 the Minister informed the appellant that he still could not be placed in a custodial clinic and that his preplacement detention pending his admission to a custodial clinic was to be prolonged further from 2 November 1998 to 31 January 1999. The appellant was admitted for selection purposes between 11 September 1998 and 11 November 1998 to the Dr F.S. Meijers Institute in Utrecht. He was selected for the custodial clinic X in Y. The Utrecht District Psychiatric Service has provided a medical statement dated 15 October 1998 on the appellant's mental condition, which has been supplemented by a report of 16 October 1998. 4. The parties' submissions ... The [applicant's] lawyer further considers, relying on the learned observation by a commentator on the [Bizzotto v. Greece] judgment of the European Court of Human Rights of 15 November 1996, Netherlands Law Reports (Nederlandse Jurisprudentie) 1998, no. 203, that there is already a violation of Article 5 of the Convention when the six-month delay is exceeded. ... [The Minister], as to the [applicant's] reliance on Article 5 of the Convention, points out that the TBS order serves in the first place for the protection of society and, in the second place, for the treatment of the person concerned. According to the Supreme Court's case-law, the execution of a TBS order in a remand centre is not an unlawful deprivation of liberty. Where a reproach can be made of the fact that the 'treatment aspect' is lacking, liability for damage arises. If an appeal is declared well-founded by the Appeals Board, the 'treatment aspect' is also lacking and imputable as from the relevant expiry date. 5. The assessment ... 5.2.1 The following must be first stated in assessing the appeal. On the basis of the history of the enactment of Article 12 of the [1997] Act ..., it must be assumed that it has been the intention of the legislature that a lack of capacity in the custodial clinics may in principle give the Minister reason to prolong by three months, as often as necessary, the period of six months set out in the first paragraph of this provision within which a person subject to a TBS order must be placed in a custodial clinic. A decision by the Minister to prolong this period on grounds of lack of capacity does not, therefore, constitute an automatic ground for declaring the appeal well-founded. ... 5.2.3 ... in examining appeals filed by persons subject to a TBS order against decisions of the Minister to prolong the transitory period, the Appeals Board must at least have at its disposal information to be supplied by or on behalf of the Minister in relation to: – the available capacity or the lack of capacity in custodial clinics at the time of taking the decision to prolong the transitory period, as well as a prognosis on this for the three months' period following the decision; – an indication of the average duration of transitory stays in remand centres of persons subject to a TBS order at the time when the decision to prolong the transitory period was taken; – the pro justitia report in relation to the mental condition of the person concerned who is subject to a TBS order, and a statement by a doctor on the question whether the person concerned, in view of his mental condition, is able to stay any longer, on a transitory basis, in a remand centre. 5.2.4 The Minister is obliged, prior to the expiry of the transitory period referred to in Article 12 of the [1997] Act ..., to take a decision on the prolongation of this period and, in doing so, to comply with the procedural regulations set out in Article 53 § 2 (a) of the [1997] Act ... – the obligation to hear – and Article 54 § 2 of the [1997] Act ... – the obligation to inform. These regulations are of essential importance for the legal position of the person subject to a TBS order and the Minister is therefore obliged to comply with these regulations in the decision-making process concerning the prolongation of the transitory period. ... 5.3 The argument based on Article 5 of the Convention fails. The detention of a person subject to a TBS order in a remand centre is, after all, based on the judicial decision in which the TBS order has been imposed, whereas Article 9 § 1 (b) of the [1951] Prisons Act (Beginselenwet Gevangeniswezen) provides that 'remand centres are intended for the accommodation of all others lawfully deprived of their liberty by a judicial decision ... for as long as their admission to another suitable place is not possible'. 5.4.1 In so far as the appeal is directed against the prolongation of the transitory period for placement from 4 August 1998 until 2 November 1998, the Appeals Board considers as follows: 5.4.2 It has appeared from the examination of the present case that the Minister did not, prior to the expiry of the delay for placement, take a decision to prolong that delay. Nor has the appellant been heard on this subject in a timely manner. The Minister's reliance on the exception contained in Article 53 § 4 (a) of the [1997] Act ..., as regards refraining from hearing requests of an urgent nature, fails. This provision is not applicable as in the present case there was no sudden event requiring an immediate measure and thus no opportunity to hear the person concerned. The Appeals Board is of the opinion that it follows ... that the appeal is wellfounded and that the ... Minister's [implied] decision to prolong the transitory period must be quashed on formal grounds. 5.4.3 The Appeals Board considers that the appellant must be provided with some compensation for the uncertainty in which he was kept as a result of the Minister's conduct referred to in 5.4.2. The Appeals Board fixes this compensation, having heard the view of the Minister, at 100 Netherlands guilders (NLG). 5.4.4 As the Minister, regarding the prolongation at issue, has not sent separate written notification to the appellant, but did inform the appellant, by written notification of 2 November 1998, of the further prolongation of the transitory period after he had been heard on that matter, the Appeals Board will not order the Minister to take a new decision in respect of the period referred to in 1.1. but will examine whether there are also material grounds for quashing the ... decision. Further reference is made to the considerations set out in 5.6. 5.5.1 In so far as the appeal is directed against the prolongation of the transitory period for placement from 2 November 1998 until 30 January 1999, the Appeals Board considers as follows: 5.5.2 It has appeared from the examination of the present case that the Minister did not, prior to the expiry of the delay for placement, take a decision to prolong that delay. The Appeals Board is of the opinion that it follows ... that the appeal is wellfounded and that the ... Minister's decision to prolong the transitory period must be quashed on this formal ground. 5.5.3 The Appeals Board considers that the appellant must be provided with some compensation for the uncertainty in which he was kept as a result of the Minister's conduct referred to in 5.5.2. The Appeals Board fixes this compensation, having heard the view of the Minister, at NLG 100. 5.6 It has been sufficiently established from the examination of the present case that, as a result of a lack of capacity, the appellant has still not been placed in a custodial clinic. It has also been sufficiently established that the Minister, in his decision on this matter, has not deviated from his policy to determine the order of placement in a custodial clinic chronologically according to the date on which the TBS orders in respect of the appellant and other [like] persons ... took effect. 5.7 The total duration of the appellant's stay in a remand centre [awaiting placement in a custodial clinic] ... has not yet been so long that these decisions to prolong the transitory stay, balancing all relevant interests, must be regarded as unreasonable or inequitable. 5.8 It appears from the medical statement of the Utrecht District Psychiatric Service of 16 October 1998 that the appellant's mental condition at that moment was such that a further stay in the remand centre should be regarded as irresponsible. Although the Appeals Board considers it highly desirable that the Minister, as regards subsequent prolongation decisions, should submit on each occasion updated medical reports, it finds, in respect of the present appeals, that the medical report drawn up shortly before the second prolongation suffices. From the report on the selection examination in the period between 11 September 1998 and 11 November 1998 (falling partly within both of the prolongation periods challenged), it does not appear that the detention was unsuitable during the period of admission to the Dr F.S. Meijers Institute. 5.9 The Appeals Board is of the opinion, having regard to the above considerations, that the decisions challenged are not in violation of the substance of the [1997] Act ..., and that the period within which the appellant should be placed in a custodial clinic had to be prolonged from 4 August 1998 to 2 November 1998 and from 2 November 1998 to 31 January 1999. 5.10 As the decisions challenged must be quashed on formal grounds, the Appeals Board rules, pursuant to Article 66 § 3 (b) in conjunction with Article 69 § 5 of the [1997] Act ..., that its decision in respect of the prolongations of the transitory period should replace those which were challenged. ...” 19. No further appeal lay against this decision. 20. On 22 April 1999 the Minister of Justice decided to prolong the applicant's preplacement detention by a further period of three months as from 1 May 1999. The applicant filed an appeal against this decision on 4 May 1999 with the Appeals Board. 21. The applicant was admitted to a custodial clinic on 17 May 1999. 22. On 15 June 1999, following a hearing held on 19 April 1999, the Appeals Tribunal quashed the Minister's decision to prolong the applicant's preplacement detention from 31 January to 30 April 1999 on formal grounds, namely the Minister's failure to comply with the procedural regulations under Article 53 § 2 (a) and Article 54 § 2 of the 1997 Act. Finding also that the total duration of the applicant's preplacement detention could not be regarded as having been so long that, balancing all relevant interests, it should be considered unreasonable or inequitable, and having found no indication that the applicant's mental condition required a priority placement in a custodial clinic, the Appeals Board did not find that the impugned decision should be quashed for being in material breach of the 1997 Act. It decided that the applicant's preplacement detention should be prolonged until 30 April 1999. The Appeals Tribunal decided to replace the Minister's decision with its own decision to prolong the applicant's preplacement from 31 January to 30 April 1999. It awarded the applicant compensation in an amount of NLG 100 in respect of the procedural shortcomings in the Minister's decision. 23. In so far as the applicant had claimed that his preplacement detention was contrary to Article 5 of the Convention, the Appeals Board held: “The argument based on Article 5 of the Convention fails. After all, the preplacement detention in a remand centre of a person subject to a TBS order is based on the judicial decision in which the TBS order has been imposed whereas, according to Article 9 § 1 (b) of the 1951 Prisons Act, as in force until 1 January 1999, casu quo Article 9 § 2 (f) of the [new 1999] Prisons Act as in force as from that date, persons subject to a TBS order can be held in a remand centre for as long as their admission to a place suitable for them is not possible. Under Article 12 of the 1997 Act, the duration of such a stay in a remand centre can, after six months, be prolonged by periods of three months.” 24. On 11 November 1999, after a hearing held on 17 September 1999, the Appeals Board ruled on the applicant's appeal of 4 May 1999. Having found it established that, contrary to Article 53 § 2 of the 1997 Act, the applicant's view had not been heard prior to the taking of the decision, the Appeals Board considered that, on this procedural ground alone, the impugned decision had to be quashed. In addition, it found that, also on material grounds, the decision of 22 April 1999 had to be quashed as at the expiry of that prolongation decision the applicant would have spent more than fifteen months in preplacement detention. A delay of more than fifteen months, balancing all relevant interests, should be regarded as unreasonable and inequitable. It awarded the applicant compensation of NLG 100 on account of the procedural shortcomings and NLG 1,250 for the sixteen days he had spent in preplacement detention on the basis of the decision of 22 April 1999. 25. On 18 February 2000 the Arnhem Regional Court (arrondissementsrechtbank) extended the applicant's TBS order by two years. An appeal by the applicant against this decision was rejected by the Arnhem Court of Appeal on 13 November 2000. No further appeal lay against this decision. 26. The relevant provisions of the Netherlands Criminal Code (Wetboek van Strafrecht), as in force at the relevant time, read as follows: “Article 13 1. A person sentenced to imprisonment who, on grounds of the inadequate development or pathological disturbance of his mental faculties, is eligible for this, may be placed in a judicial institution (justitiële inrichting) for the treatment (verpleging) of persons subject to a TBS order; in that case Articles 37c, 37d and 37e shall apply by analogy. ... Article 37 1. The judge may order that a person who, owing to the inadequate development or pathological disturbance of his mental faculties, cannot be held responsible for an offence, be committed to a psychiatric hospital (plaatsing in een psychiatrisch ziekenhuis) for a period of one year, but only if he represents a danger to himself, to others, or to the general safety of persons or property. ... Article 37a 1. The judge may impose a TBS order (terbeschikkingstelling) on a suspect whose mental faculties were inadequately developed or pathologically disturbed at the time of the commission of the offence if: 1o the offence he has committed is one which, according to its statutory definition, renders offenders liable to a term of imprisonment of four years or more, or if the offence is defined in Articles 132, 285 § 1, 318, 326a or 395 of the Criminal Code, Article 175 § 2 of the 1994 Road Traffic Act (Wegenverkeerswet), Article 11 § 2 of the Opium Act (Opiumwet), or Article 432, under 3o, of the Criminal Code, and 2o the said measure is necessary in the interests of the safety of others or the general safety of persons or property. 2. In applying paragraph 1, the judge may refrain from imposing a penalty, even if he finds that the suspect may be held criminally responsible for the offence. 3. In making an order referred to in paragraph 1, the judge shall take account of the statements contained in the reports made concerning the suspect's personality, and shall take account of the seriousness of the offence committed and the number of previous convictions for indictable offences. 4. Paragraph 1 of this Article and Article 37 § 1 may be applied in conjunction with regard to the same offence. Article 37b 1. The judge may order that a person who is subject to a TBS order be confined to a custodial clinic (verpleging van overheidswege) if this is necessary in the interests of the safety of others or the general safety of persons or property. ... Article 37c 1. Treatment shall be provided in custodial clinics for persons subject to TBS orders in accordance with rules to be laid down by Order in Council (algemene maatregel van bestuur). 2. The Minister of Justice shall ensure that persons subject to TBS orders who are confined to a custodial clinic receive the necessary treatment. In respect of specific patients, the Minister may issue special instructions to the head of the custodial clinic in the interests of the safety of others or the general safety of persons or property. 3. The rules to be laid down pursuant to paragraph 1 shall make provision for persons subject to TBS orders to appeal against decisions which restrict their freedom of movement or correspondence, or their right to receive visitors. Article 37d 1. Persons subject to TBS orders may be confined to the following institutions, on condition that the institutions have been designated for this purpose by the Minister of Justice: a. private institutions managed by legal persons established in the Netherlands; b. State institutions. 2. Treatment shall preferably take place in a private institution. ... Article 37e The costs of the confinement of persons subject to TBS orders shall be borne by the State in so far as no other provision is made for them by or pursuant to any Act of Parliament. Rules shall be laid down by Order in Council concerning payment for confinement elsewhere than in State institutions.” 27. A TBS order with confinement to a custodial clinic is not intended to have a punitive effect, but to protect society from any risk posed by the person concerned. It is initially imposed for a period of two years and may be prolonged by a judge for further periods of one or two years where the safety of others or the general safety of persons or property so require (Article 38d of the Criminal Code). The total duration of a TBS order may not exceed four years, unless it has been imposed on the ground of an offence directed against, or constituting a danger to, the physical integrity of one or more persons. In the latter case, there is in principle no restriction on the number of extensions that can be granted by a judge (Article 38e of the Criminal Code). 28. The provisions relating to the proceedings on the extension of a TBS order are set out in Articles 509o – 509x of the Code of Criminal Procedure (Wetboek van Strafvordering). Article 509o § 1 provides that the public prosecutor's office (openbaar ministerie) may submit a request (vordering) for the prolongation of a TBS order no sooner than two months and no later than one month before the date on which the order is due to expire. The request must be accompanied by a recent and reasoned recommendation prepared by the custodial clinic where the person concerned is receiving treatment (Article 509o § 2 CCP). The court competent to decide on such a request is the Regional Court that tried the person concerned at first instance for the crime that gave rise to the TBS order (Article 509p). 29. Article 9 of the 1951 Prisons Act (Beginselenwet gevangeniswezen), as in force until 1 January 1999, provided: “Remand centres are intended: a. for the accommodation of those who must undergo punishment by imprisonment or military detention; b. for the accommodation of all others lawfully deprived of their liberty by a judicial decision, court order or public authority, in so far as there is no other place suitable for their accommodation or for as long as their admission to another suitable place is not possible.” 30. On 1 January 1999, a new Prisons Act (Penitentiaire Beginselenwet) entered into force, replacing the 1951 Act. Article 9 § 2 of the 1999 Act, in so far as relevant, reads: “The following may be held in remand centres: ... f. persons subject to a TBS order with confinement to a custodial clinic within the meaning of Articles 37b or 38 c of the Criminal Code for as long as their admission to a suitable clinic is not possible.” 31. On 1 October 1997 Articles 1–11 and 13–80 of the Act on confinement to a custodial clinic of persons subject to a TBS order (“the 1997 Act”) entered into force. The custodial clinics, of which there were seven at the material time, are top-security institutions as the persons placed there have been found to pose a great danger to society as well as to themselves. The treatment provided in these clinics is aimed at reducing this danger and preventing recidivism. 32. The 1997 Act distinguishes between care (verpleging) and treatment (behandeling). The provision of care in a custodial clinic is aimed at the protection of society against the risks posed by persons subject to a TBS order by keeping them confined in a secure institution. The treatment provided in a custodial clinic is geared to individual disorders and personalities. It is aimed at helping persons subject to a TBS order to gain insight into and control over their disorders, to make them aware of their responsibilities and to adjust their behaviour accordingly so that they no longer pose a threat to society. 33. Pursuant to Article 12 of the 1997 Act, which provision had already entered into force on 11 July 1997, a person subject to a TBS order must be admitted to a custodial clinic within six months after the TBS order has taken effect. This period can be extended by the Minister of Justice by further periods of three months each time if placement proves impossible. A failure to give an explicit prolongation decision is considered to be a decision to prolong the preplacement detention. In such a situation, the preplacement detention is extended automatically. Consequently, a failure to give a prolongation decision can never result in the release of the person concerned, who may challenge such an implicit decision by taking appeal proceedings before the Appeals Board. 34. Article 11 of the 1997 Act provides that the Minister of Justice must decide in which specific custodial clinic the person concerned is to be placed, and that such a decision should – at least – take into account the requirements of the protection of society against the dangerousness of the person subject to a TBS order, the safety of persons other than the detainee or the general safety of persons or property, and the requirements of the treatment of the person concerned in view of the nature of the established inadequate development or pathological disturbance of his or her mental faculties. 35. The decision on the selection of the most appropriate custodial clinic – given the differences between the various institutions as regards their security levels, patient population (gender, psychiatric diagnosis of the patients and their ability to function in a group setting, etc.), methods of treatment and the average stay of patients – is in most cases preceded by a seven-week period of psychiatric observation in the Dr F.S. Meijers Institute, an institution specialised in this field. 36. In the National Ombudsman's report no. 96/575 of 5 December 1996, which concerned the situation prior to the entry into force of the 1997 Act, it was stated that, in principle, taking into account the seven-week observation period and a margin of some weeks for the administrative processing of the selection application and the admission procedure, a delay of three months between the date on which a sentenced person became eligible for early release and the date of admission to a custodial clinic was acceptable. Acknowledging that incidental friction between the available and necessary capacity of custodial clinics could not be wholly excluded, the National Ombudsman further held that an additional delay of no longer than three months at the very most might still be acceptable. However, given the responsibility of the Minister of Justice for adequate capacity planning, the Ombudsman did emphasise that reliance on force majeure would only be acceptable if the Minister could demonstrate unforeseen circumstances that indeed rendered a longer period of preplacement detention unavoidable. 37. Since September 1999 a simplified system has been used for the selection and placement of persons subject to a TBS order. This has resulted in a reduction of the delay in effecting admission to a custodial clinic. In 2002 this delay was, on average, 248 days. 38. In the report of 15 July 1993 of the European Committee for the Prevention of Torture and Inhuman Treatment (the “CPT”) on its visit to the Netherlands from 30 August to 8 September 1992 (CPT/Inf (93)15), it is stated: “130. ... the delegation also met (for instance, in the De Schie Prison, the De Singel Prison and the FOBA) some male and female prisoners in respect of whom treatment measures (eg. a TBS placement) had been decided, in some cases a long time before, but who had not yet been transferred because of a lack of places. The CPT would like to receive the Dutch authorities' comments on this subject.” 39. In their response to the CPT report (CPT/Inf (93)20), the Netherlands Government stated: “The increase in the number of persons under a TBS order has placed the existing capacity under severe strain, causing a rise in the number of prisoners awaiting transfer to a TBS clinic. The Netherlands Government shares the CPT's view that such prisoners should be placed in an appropriate hospital facility within a reasonable length of time. The situation has changed, however, since the delegation's visit. A programme has been set up to increase the capacity through building projects and the creation of more places in existing establishments, and outpatient departments for part-time treatment have been added to some TBS clinics, widening the prospect for earlier probationary leave. These measures will reduce waiting times considerably.” 40. In the CPT report of 29 September 1998 on its second visit to the Netherlands from 17 to 27 November 1997 (CPT/Inf (98)15), it is stated: “111. Since the beginning of the 1990s, the Dutch authorities have been confronted by a significant increase in TBS orders, a problem which has been exacerbated by the prolonged stays – for more than six years – of some 160 persons within the TBS system. As a result, the number of persons waiting in prisons for admission to TBS establishments rose from 26 in 1991 to over 200 at the time of the CPT's second periodic visit. In response to this situation, the Dutch authorities have decided to increase the number of TBS places, in order to reach a capacity of 1,000 in 1999. However, the CPT notes that, in a letter sent to the Lower House of Parliament on 2 April 1998, ... the Minister of Justice indicated that the shortage of TBS places in 2002 is estimated at 340. Concern has been expressed in the Netherlands about the position of inmates waiting in prison for admission to a TBS institution. During this waiting period, currently averaging 9 months, the persons concerned do not receive the treatment they require, a situation which, it has been pointed out, is likely to provoke feelings of anxiety, self-doubt and anger in the persons concerned. Further, as they are considered dangerous, those inmates run a serious risk of being placed in restrictive regimes in the prison establishments where they are temporarily being held.” 41. In their response to the CPT report (CPT/Inf (99)5), the Netherlands Government informed the CPT of the measures taken by the Dutch authorities in order to overcome the difficulties flowing from the large number of prisoners awaiting admission to a custodial clinic and of the steps taken to ensure that such prisoners received at least minimally adequate treatment whilst awaiting admission. According to the Netherlands Government, efforts were being made to improve/accelerate the outflow of TBS patients to mainstream psychiatric facilities and the new statutory provision for the conditional lifting of TBS orders was expected both to increase the outflow of TBS patients as well as to reduce the number of patients entering custodial clinics. 42. The Government further informed the CPT that lengthy waiting lists for places in custodial clinics would continue to exist pending a resolution of the capacity problem, but that experiments had started in a few places providing special psychiatric treatment for inmates awaiting admission to a custodial clinic in ordinary prisons. In these experiments, therapists attached to forensic outpatient departments offered a form of preparatory therapy designed to alleviate anxiety about the eventual TBS treatment and to reduce the growing hostility felt by these people towards the justice system. According to the Government, the initial results of these experiments were encouraging in that the persons involved – therapists, prison staff and inmates – had all responded positively, and there was a growing demand among prisoners awaiting admission to a TBS institution for this kind of support (pp. 40-41). | 1 |
dev | 001-82746 | ENG | MDA | CHAMBER | 2,007 | CASE OF VITAN v. MOLDOVA | 4 | Violation of Art. 6-1;Violation of Art. 13+6-1;Violation of P1-1 | Nicolas Bratza | 6. The applicant was born in 1956 and lives in Chişinău. 7. In July 1994 the applicant concluded a contract with ASITO (a private insurance company incorporated in Moldova) whereby she paid an insurance premium in exchange for a fixed annuity of 500 Moldovan lei (MDL) (the equivalent of 122.55 United States dollars (USD) at the time) in addition to her pension (“annuity”). She started receiving her annuity in August 1996. In January 1999 ASITO stopped paying it, invoking a change in the interest rate of the National Bank of Moldova. 8. On 4 March 1999 the applicant brought an action against ASITO, seeking the payment of the annuity to date and requiring the company to abide by the contract. 9. On 21 June 1999 the Râşcani District Court ruled in favour of the applicant and ordered ASITO to pay her the pension arrears in the amount of MDL 3,421.50 (the equivalent of 282.32 euros (EUR) at the time). ASITO lodged an appeal with the Chişinău Regional Court, which dismissed it on 25 April 2000. ASITO did not appeal and the judgment became final and enforceable. 10. On 29 May 2000 the applicant lodged a request with the Râşcani District Court seeking enforcement of the judgment in her favour. The latter did not reply, but sent the enforcement warrant to a Bailiff only on 17 May 2002. 11. In the meantime, since in its judgment of 21 June 1999 the Râşcani District Court had ruled only on the payment of the pension arrears, on 24 November 2000 it issued an additional judgment in favour of the applicant and ordered ASITO to abide by the contract and to resume the monthly payments. That judgment became final. 12. Between 2000 and 2002 the applicant lodged other complaints about the non-enforcement of the judgments in her favour with the Râşcani District Court, the Bailiff, the Ministry of Justice and the Superior Council of Magistrates. On 8 May 2002 the Ministry of Justice requested the Râşcani District Court to take all necessary steps, including the sanctioning of the persons responsible, in order to enforce the judgments in favour of the applicant and to inform her about the outcome of the enforcement proceedings. The applicant did not receive any further reply; nor were any sanctions imposed on the debtor company or its employees. 13. The final judgment of 25 April 2000 and the additional judgment of 24 November 2000 were enforced on 5 September 2003. 14. The relevant domestic law was set out in Prodan v. Moldova, no. 49806/99, § 31, ECHR 2004III (extracts). | 1 |
dev | 001-57436 | ENG | NLD | CHAMBER | 1,985 | CASE OF BENTHEM v. THE NETHERLANDS | 2 | Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient | C. Russo | 10. Mr. Albert Benthem, who was born in 1927, lives at Noordwolde (municipality of Weststellingwerf), where he used to own and run a garage. 11. On 5 April 1976, he applied to the municipal authorities, in accordance with the Nuisance Act 1952 (see paragraphs 19-22 below), for a licence to bring into operation an installation for the delivery of liquid petroleum gas ("LPG") to motor vehicles. The installation comprised a surface storage tank with a capacity of 8 cubic metres. The application was made public in order to enable those wishing to object to do so. On 2 June 1976, three neighbours expressed their fear of fire and an explosion being caused by lightning. 12. On 11 August 1976, the municipal authorities granted the licence, subject to fifty-six conditions which they considered would counter the dangers in question. They referred to a letter in which an official of the Groningen Labour Inspectorate had indicated that he agreed with such a course. 13. On 9 August 1976, the Regional Health Inspector had written to the municipal authorities to advise them to refuse a licence; in his view, the proximity of houses involved excessive risks. On 17 September, he lodged an appeal with the Crown (Kroonberoep; see paragraphs 24-26 below). The municipal authorities informed Mr. Benthem of the appeal on 6 October 1976. They stated that since it had no suspensive effect, he could erect the installation. However, they added that if he did so, they would not be liable for any financial losses he might sustain in the event of the licence being cancelled. 14. The Chairman of the Administrative Litigation Division of the Council of State (Afdeling voor Geschillen van Bestuur van de Raad van State) - to which Division it fell to investigate the matter and then advise the Crown - sought information from the Minister of Public Health and Environmental Protection (sections 26 and 32(c) of the Council of State Act; see paragraphs 24 and 25 below). This information was supplied, in a letter of 7 February 1977, by the Director General for Environmental Protection; he expressed the view that the appeal was well-founded as he considered that further conditions ought to be attached to the licence. 15. After a hearing in the presence of the parties, during which the applicant was heard on 22 December 1977, the Chairman of the Division asked the Director General for additional information. The latter explained, in a letter of 18 May 1978, that the situation had changed: greater importance was now attached to the dangers involved in storage and delivery. He shared the view of the Chief Inspector of Public Health that, pending revision of the current officially-recommended standards, there should not be more than twenty-five houses within a radius of 150 metres from the gas tanks and dispensers, nor less than 25 metres between the installation and the nearest houses. The Director General therefore concluded that the licence sought by Mr. Benthem should be refused, as these conditions were not satisfied. 16. At a hearing held on 12 September 1978, the applicant argued that the Chief Inspector’s "interim position", as well as being inadequately motivated, was not based on sufficiently sound technical grounds. Having been asked by the Chairman of the Division to elaborate on his opinion, the Director General provided, on 30 November 1978, further details concerning the safety hazards; he stated that, pending the results of a study (which was being undertaken because of the many appeals outstanding), a cautious attitude should be adopted when granting licences. He thus confirmed his earlier position. 17. On 8 June 1979, the Administrative Litigation Division sent to the Minister of Public Health and Environmental Protection an opinion recommending that the licence be refused; a draft of the Decree to be adopted was attached thereto. 18. On 30 June 1979, by a Decree in the same terms as the draft, the Crown quashed the municipal authorities’ decision. It considered that a different view should be taken regarding the distance between an LPG installation and the neighbouring houses and that, in the particular circumstances, the risks could not be eliminated merely by the imposition of additional conditions. As a result, the municipal authorities issued an order directing Mr. Benthem to cease operating his installation. He lodged an appeal against this decision, but it was confirmed by the Crown by a Decree of 13 June 1980. A second decision - dated 10 October 1980 and providing for the closure of the installation by the authorities themselves - was quashed, on formal grounds, by the Judicial Division (Afdeling Rechtspraak) of the Council of State on 26 July 1982. According to information which was given to the Court at the hearings and was not contested, the installation was not closed down until February 1984. At the beginning of that year, Mr. Benthem had been declared bankrupt. 19. The Nuisance Act 1952 prohibits, in the absence of a licence, the erection, bringing into operation, exploitation, extension or modification of certain installations which may be a source of danger, damage or nuisance to their surroundings (section 2 (1)). The installations concerned are listed in a Decree, and they include those for delivering LPG. 20. Licence applications, which are submitted to the municipal authorities, are first of all notified to the public, who may make oral or written objections. Certain government bodies - such as the Regional Health Inspector - are also given an opportunity to express their views. The decision lies with the municipal authorities (section 4). They may refuse a licence only if the erection, bringing into operation, exploitation, extension or modification of the installation would result in danger or, as regards property, industry or health, damage or serious nuisance, and if such danger, damage or nuisance could not be sufficiently averted by the imposition of conditions (section 13 (1) in the version in force at the relevant time). Once issued, a licence covers both the original holder and his assignees (section 14). It may be granted by the municipal authorities for a limited period or subject to conditions binding upon the licensee (sections 16 and 17). 21. After the persons and authorities involved have been informed of the decision, the applicant for the licence, anyone who duly raised objections and the government bodies concerned may lodge an appeal with the Crown within a certain period (section 20, which was then in force). The Crown determines the appeal on the advice of the Administrative Litigation Division of the Council of State (section 29). An appeal has no suspensive effect but, under section 60 (a) of the Council of State Act (Wet op de Raad van State), the appellant may ask the Chairman of the Division to defer implementation of the decision or to order interim measures. 22. At the close of the proceedings, the Crown will confirm, amend or quash the initial decision. 23. Under the Constitution, the person of the King - or the Queen - is inviolable. The King takes his decisions on the responsibility of a Minister, who has to countersign them. The expression "the Crown", when decision-making powers are being exercised, is commonly used to denote the King together with the Minister or Ministers. 24. The Crown gives rulings in administrative litigation which is brought before it on appeal. In carrying out this function, the Crown will not take a decision until the Administrative Litigation Division of the Council of State has investigated the matter and prepared a draft decision (section 26 (1) of the Council of State Act). The members of the Division, whose number is fixed by the Crown but cannot be less than five including the Chairman, are chosen by the Crown from amongst the members of the Council of State and on its recommendation. The Administrative Litigation Division is to be distinguished from the Judicial Division which itself decides cases falling within its competence. 25. The Chairman of the Administrative Litigation Division calls for the necessary official reports and informs the Minister concerned thereof (section 32 (c) (1)). The interested parties may submit such documentary evidence as they consider necessary (section 34). A public hearing enables them, if they so wish, to argue their cases (section 45). Like the Chairman of the Division, they may call witnesses or experts, put questions to them and comment on any evidence given (sections 41 (4), 46 (5) and (6) and 48). The Division deliberates in camera (section 51); it may carry out on-site inspections (section 52), ask for additional official reports, on which the interested parties may comment (section 54), and hold further hearings (section 55). It then draws up a draft Royal Decree, which it submits to the Crown together with its advice (section 56). The Minister concerned has six months to inform the Division of any objections he may have and ask it to reconsider the case (section 57). 26. After receiving the Division’s advice or further advice, the Crown issues a Royal Decree within six months. This time-limit may be extended by three months (section 58 (1)). After it has expired, the Crown must decide in accordance with the Division’s advice (section 58 (a)). Prior to that, it may depart from the advice, but only if the Minister concerned has first consulted the Minister of Justice or, where the latter is himself concerned, if he has first consulted the Prime Minister (sections 57 and 58 (2) (a) and (b)). In practice, the Crown very rarely takes this course. The Crown’s decision, against which no further appeal is available, may be based on considerations of law or of expediency. The Decree, which incorporates the reasons therefor, is immediately sent to the interested parties and the Division. It is then made available for one month for public inspection at the Secretariat of the Council of State (section 59 (2)). If the Decree departs from the advice, it is published in the Official Gazette (Staatsblad) together with the Minister’s report, which contains the Division’s draft and the Minister’s correspondence with the Division and with the Minister of Justice or the Prime Minister (section 58 (3)). | 1 |
dev | 001-101560 | ENG | HUN | CHAMBER | 2,010 | CASE OF LANCHID HITEL ES FAKTOR ZRT. v. HUNGARY | 3 | Remainder inadmissible;Violation of P1-1;Pecuniary damage - award | András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria | 5. The applicant is a company limited by shares with its seat in Budapest. 6. By way of assignments for consideration, done in October 2001 and July 2002, the applicant acquired – through intermediaries – the debts of V. Rt and M. Rt from the Tax Authority. The debts consisted mostly of unpaid payroll taxes and social security contributions and originated in the period before 1998. 7. Since the debtors had become insolvent, the applicant brought an action against the State-owned Hungarian Privatisation and State Holding Company (ÁPV Rt) before the Budapest Regional Court in order to recover the assigned claims. Relying on section 328 of the (Old) Companies Act 1988, it argued that ÁPV Rt – the majority owner of the two debtor companies – bore vicarious liability for the outstanding debts. 8. On 25 September 2003 the Regional Court partly found for the applicant. The court awarded some 47.3 million Hungarian forints (HUF) to the applicant, which corresponded to the debts of V. Rt other than the payroll taxes and social security contributions. It dismissed the action in respect of the latter items. The applicant was obliged to pay HUF 9.6 million to the respondent in legal fees. 9. The applicant appealed. It claimed 22,482,500 Hungarian forints (HUF) plus accrued interest on account of the remaining debts of V. Rt and HUF 177,975,985 plus accrued interest on account of those of M. Rt. 10. The Budapest Court of Appeal upheld the first-instance decision on 9 July 2004. The applicant was obliged to pay HUF 3 million as procedural fees. 11. The applicant lodged a petition for review with the Supreme Court in respect of the social security contributions owed by M. Rt. It submitted that their amount altogether was approximately HUF 160 million – a sum including the principal of HUF 84,515,225 – but susceptible to further taking of evidence in resumed proceedings. 12. On 5 April 2005 the Supreme Court upheld the Court of Appeal's decision. It was satisfied that ÁPV Rt indeed bore vicarious liability in the circumstances. Relying on Uniformity Decision no. 2/2004.PJE, it held however that – pursuant to sections 3(3) and 25(2) of the (Old) Taxation Order Act 1990 – for the impugned social security contributions to be enforceable by the applicant, a decision should have been issued by the Tax Authority establishing the vicarious liability. For want of such a decision, the contributions could not be enforced by the applicant, since the assignment had not conferred any public law powers on it. The applicant was obliged to pay once more HUF 3 million as procedural fee. 13. Section 328 of the (Old) Companies Act 1988 provided as follows: “(1) If [the majority-owner, i.e. controlling] joint-stock company acquires such part of the shares of [the controlled joint-stock company] as exceeding three-fourth of [the latter's] share capital, the board of directors of the controlling ... company ... may give instructions concerning the management of the [controlled] ... company to [its] board of directors, which the latter must carry out (“joint-stock company under direct control”). (2) The controlling ... company shall bear unlimited liability for the debts of the joint-stock company under direct control.” 14. Section 3(3) c) of the (Old) Taxation Order Act 1990 (no. XCI of 1990) (as in force at the material time) provides that the Act is to be applied to the payment of social security contributions. Section 25(2) f) provides that, if a taxpayer fails to pay the tax and it cannot be recovered from that taxpayer, the Tax Authority is entitled to the adoption of a decision establishing vicarious liability to cover the outstanding debt. Sections 6(1) and 6(2), 35(2)f) and 120(1)a) of the (New) Taxation Order Act 2003 (no. XCII of 2003) contain identical rules. 15. The interpretation that assignees cannot claim in civil courts outstanding taxes from those with vicarious liability was upheld by the Supreme Court in Uniformity Decision no. 2/2004.PJE. It considered that, under both Taxation Order Acts, vicarious liability for tax debts was to be established by a decision of the Tax Authority. 16. However, the above legislation was subsequently repealed by Act no. LVI of 2005. According to the reasoning of the bill, the interpretation of the Supreme Court in Uniformity Decision no. 2/2004.PJE – an economically unjustified misconception of the law running counter to the intentions of the lawmaker – rendered unenforceable and thus worthless those tax debts which could not be recovered in the liquidation of the original debtors. Therefore the legal avenue of a civil action was to be opened for the assignees of such claims vis-à-vis those with vicarious liability, so as to restore constitutionality in terms of the right to access to a court in this context. | 0 |
dev | 001-138929 | ENG | LVA | ADMISSIBILITY | 2,013 | IĻJINS v. LATVIA | 4 | Inadmissible | Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Robert Spano;Vincent A. De Gaetano | 1. The applicant, Mr Juris Iļjins, is a Latvian national born in 1978 currently being detained in a prison in Olaine. He was represented before the Court by Ms B. Didrihsone, a lawyer practising in Riga. 3. It appears that the applicant was held in pre-trial detention in Valmiera Prison from 21 December 2007 to 1 April 2008 and from 13 May 2008 to 20 January 2009. 4. During these periods the applicant was placed in various disciplinary cells on fourteen occasions, for a total of 135 days. The first time he was detained in a disciplinary cell was on 9 January 2008, as punishment for a disciplinary offence (not complying with a warden’s instructions to stay in the cell allocated to him). 5. The applicant submitted that the conditions in the disciplinary cells in Valmiera Prison had been as follows. There had been no natural light, as the window in each cell had been covered by a metal plate; the artificial lighting provided had not been sufficient. The cells had been damp and stuffy, as there had been no ventilation. Paint had chipped off every surface. The walls and ceiling had been mouldy. The toilets had not been partitioned, had been visible from corridor and there had been no toilet seats. There had been no sinks either; the water supply had been mounted above the toilets. The cells had been infested with insects and bugs. 6. On 24 July 2008 the applicant lodged a complaint with the Ombudsman’s Office (Tiesībsarga birojs), among other things, about the conditions of detention in the disciplinary cells in Valmiera Prison. 7. On 1 September 2008 the applicant was informed that the Ombudsman had opened an inquiry. 8. On 24 September 2008 the Ombudsman delivered his opinion. He mentioned that on 13 February 2008 his employees had visited the disciplinary cells in Valmiera Prison, and had described the conditions there as follows. The cells had measured approximately 7 sq. m. The toilets had not been partitioned, had been visible through a window in the door and there had been no toilet seats. There had been no sinks either; the water supply had been mounted above the toilets. There had been one foldable plank bed and a small table, but no other furniture. Paint had chipped off part of the walls. The ceiling had been cracked and mouldy. The cells had been damp, as ventilation (natural and artificial) had not been sufficient. The cells had not been well-lit (only one light bulb above each door). There had been a window in each cell but it had been covered with a metal plate, meaning there had been no natural light. 9. The Ombudsman concluded that the conditions in the cells did not comply with either domestic law or international standards. He advised the applicant to institute administrative proceedings under section 91 of the Administrative Procedure Law (an “action of a public authority”) by lodging a complaint with the head of the Prisons Administration (Ieslodzījuma vietu pārvalde) and subsequently with the administrative courts. 10. On 6 October 2008 the applicant lodged a complaint with the Prisons Administration about the conditions of detention in Valmiera Prison. He indicated that his complaint related to an “action of a public authority” (faktiskā rīcība) and claimed compensation in the amount of 10,000 Latvian lati (LVL) (approximately 14,245 euros (EUR)). 11. On 10 November 2008 the Prisons Administration dismissed the applicant’s complaint and considered that the conditions in the disciplinary cells complied with domestic law. The applicant was informed that he had one month to appeal against this decision to the Administrative District Court (Administratīvā rajona tiesa). 12. The applicant had lodged an application with the Administrative District Court prior to submitting his complaint to the Prisons Administration. He subsequently amended his application on two occasions and asked to be exempted from the payment of State duty (court fees). 13. On 20 January 2009 the Administrative District Court stayed the proceedings and requested that the relevant authorities submit information. 14. On 15 April 2009 the Administrative District Court decided to exempt the applicant from the payment of State duty, accepted his application and commenced the administrative proceedings (under case no. A42746109). His application was deemed to have been submitted on 14 August 2008, the date of his initial application. 15. It appears that hearings were scheduled for 15 September 2010 and 20 October 2010. It is not clear why these did not take place. The case was eventually heard on 23 March 2011. 16. On 13 April 2011 the Administrative District Court delivered a judgment upholding the applicant’s claim. The court largely relied on the Ombudsman’s conclusions and found that the applicant’s account of the conditions largely coincided with the conditions as established by the Ombudsman’s inquiry. The court awarded compensation for non-pecuniary damage in the amount of LVL 2,000 (approximately EUR 2,849). 17. The applicant and his representative, a State-appointed lawyer, did not lodge an appeal against this judgment, but the Prisons Administration did. It appears that an appeal hearing was scheduled for 25 October 2012, but did not take place. The case was eventually heard on 10 January 2013. 18. On 22 February 2013 the Administrative Regional Court (Administratīvā apgabaltiesa – “the Regional Court”) delivered a judgment quashing the lower court’s ruling and upholding the applicant’s claim in part. It specified that the claim concerned an action of a public authority (Valmiera Prison), and examined its lawfulness. The Regional Court took into account the lack of toilet partitioning and the fact that the toilets did not have seats, that the water supply had been mounted above the toilets, and that there had been inadequate lighting and ventilation. These conditions were considered to be degrading, and their cumulative effects contrary to Article 95 of the Constitution (Satversme) and Article 3 of the Convention. Therefore, the action of a public authority (Valmiera Prison) in placing the applicant in those conditions was found to be unlawful. 19. As concerns compensation for non-pecuniary damage, the Regional Court noted that an adequate award of compensation would be LVL 3,000 (approximately EUR 4,273). However, given that the applicant had been placed in disciplinary cells for his own actions and had waited for several months after his initial placement there before lodging his first complaint, the amount had to be reduced in accordance with domestic law. The Regional Court awarded the applicant LVL 600 (approximately EUR 855) and dismissed the remainder of his non-pecuniary damage claim (LVL 1,400, approximately EUR 1,994). An appeal on points of law could be lodged against this judgment within one month of its delivery. 20. The applicant’s lawyer lodged an appeal on points of law, indicating that the applicant considered the Regional Court’s ruling to be unlawful. No further reasons were provided. 21. By a final decision on 12 April 2013, three senators of the Senate of the Supreme Court refused to open cassation proceedings on the basis of section 328(1)(5) and section 338.1 of the Administrative Procedure Law. The proceedings did continue, however, as regards the applicant’s (other) claim examined within the same proceedings about an action of a public authority (Valmiera Prison) as regards its refusal to transfer him to another cell or to another prison for security reasons. The applicant eventually withdrew that claim, and on 9 May 2013 the Senate of the Supreme Court adopted a final decision relating to it. 22. On 22 April 2013 the applicant’s lawyer attempted to lodge an ancillary complaint (blakus sūdzība) against the Senate’s decision. She explained that she had not been made aware of the Regional Court’s judgment until 20 March 2013. She could not submit a fully reasoned appeal on points of law within the necessary time-limit, so in accordance with the applicant’s instructions, she had lodged the appeal on points of law without specifying its scope. In doing so, she had relied on section 333 of the Administrative Procedure Law. She requested that the Senate’s ruling be quashed. 23. On 24 April 2013 these submissions were returned back to the applicant’s lawyer with a handwritten note by a judge stating: “in accordance with section 324(4) of the Administrative Procedure Law [the complaint] is to be considered as not submitted and to be returned”. 24. It appears that the applicant attempted to lodge another appeal on points of law, which was received at the Supreme Court on 25 April 2013. No further information has been submitted to the Court in this regard. 25. The relevant parts of the Administrative Procedure Law (Administratīvā procesa likums), which took effect on 1 February 2004, have been summarised in the case of Melnītis v. Latvia (no. 30779/05, §§ 24-26, 28 February 2012). 26. In accordance with sections 307(5) and 267 of the Administrative Procedure Law, an appellate court judgment is to be sent to parties within three days of its delivery, unless it has been served on them in person. 27. Section 324(4) provides, inter alia, that an ancillary complaint lodged against a final decision must be considered as not submitted and returned. 28. Section 328(1)(4) provides that an appeal on points of law must contain the extent to which a judgment is appealed. 29. Section 328(1)(5) provides that an appeal on points of law must indicate what provisions of substantive or procedural law a court has breached and how this breach is manifested. 30. Section 333(1) provides that where an appeal on points of law does not comply with the criteria laid down in paragraphs 1, 2, 3, 4 or 6 of section 328(1) a senator must take a decision not to proceed with it (atstāt bez virzības). In the decision a time-limit for rectifying the deficiencies shall be set. 31. Section 338.1 provides that three senators shall refuse to open cassation proceedings (atteikties ierosināt kasācijas tiesvedību) if an appeal on points of law does not comply with the criteria laid down in sections 325, 326, 327, 328 and 329. | 0 |
dev | 001-69529 | ENG | ITA | CHAMBER | 2,005 | CASE OF HERMI v. ITALY | 3 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 8. The applicant was born in 1969 and is currently in Frosinone Prison. 9. On 28 November 1999 the applicant was discovered in possession of a package containing 485 grams of heroin and was arrested by the Rome carabinieri. Proceedings were instituted against him for drug trafficking. On 23 December 1999 the applicant appointed a lawyer of his own choosing, Mr M., who represented him throughout the proceedings. 10. The applicant subsequently requested, through the intermediary of his lawyer, adoption of the summary procedure (giudizio abbreviato) provided for in Articles 438 to 443 of the Code of Criminal Procedure (“the CCP”). The representative of the Public Prosecutor’s Office gave a favourable opinion. The Rome preliminary hearings judge, taking the view that the charges against the applicant could be determined on the basis of the steps in the proceedings taken at the preliminary investigation stage (allo stato degli atti) ordered that the summary procedure be adopted. 11. At the private hearing held on 24 March 2000 in the presence of the applicant, the latter, through the intermediary of his lawyer, pleaded not guilty on the ground that the drugs had been intended for his personal use and not for sale. 12. In a judgment of 24 March 2000 the Rome preliminary hearings judge sentenced the applicant to six years’ imprisonment and a fine of 40,000,000 lire (approximately 20,658 euros). He observed that the quantity of drugs permitted for personal use must not exceed what was required to meet immediate needs. At the time of his arrest, the applicant had just purchased a quantity corresponding to more than 8,000 average daily doses. 13. The applicant appealed against the judgment, reiterating the arguments adduced at first instance. He contended that interpreting the law on drugs in a way that penalised drug users was in breach of the Constitution. 14. On 1 September 2000 Mr M. was informed that the hearing had been set down for 3 November 2000. On that day Mr M. objected to the continuation of the proceedings in the absence of his client and requested that the latter be brought from the prison to the hearing room. The Rome Court of Appeal dismissed his request, observing that the applicant had not informed the authorities in advance that he wished to participate in the appeal proceedings. 15. In a judgment of 3 November 2000 the Court of Appeal upheld the judgment at first instance. 16. The applicant appealed on points of law. He alleged that the appeal judges had not allowed him to attend his trial and that the summons to appear at the appeal hearing had not been translated into Arabic. 17. In his final submissions, the public prosecutor requested that the impugned decision be set aside. 18. In a judgment of 24 January 2002 the Court of Cassation dismissed the applicant’s appeal. It observed that neither the Convention nor the CCP required the steps in the proceedings to be translated into the language of a non-national defendant in Italy. However, the latter had the right to be assisted free of charge by an interpreter in order to be able to understand the charges against him and follow the progress of the proceedings. As to the other complaints, the Court of Cassation observed that the presence of the defendant was not required under the summary procedure, the adoption of which had been requested by the applicant himself of his own free will. Furthermore, the applicant had not made clear his wish to participate in the appeal hearing. 19. The summary procedure is governed by Articles 438 to 443 of the CCP. 20. Under the terms of these provisions as they applied at the time when the applicant was arrested, the defendant could request, subject to a favourable opinion from the representative of the Public Prosecutor’s Office, that the case be decided at the preliminary hearing. If the judge deemed that the charges could be determined on the basis of the steps performed at the preliminary investigation stage and recorded in the file held by the Public Prosecutor’s Office (fascicolo del pubblico ministero), he ordered the summary procedure to be adopted. The summary procedure was subsequently amended by Law no. 479 of 16 December 1999. Under the new rules, a favourable opinion from the representative of the Public Prosecutor’s Office is no longer required, and the judge cannot reject the request for the summary procedure to be adopted if the defendant does not request that any evidence be produced (integrazione probatoria). 21. Where the summary procedure is adopted, the hearing takes place in private and is devoted to hearing the arguments of the parties, which must be based on the documents contained in the file held by the Public Prosecutor’s Office. If the judge decides to convict the defendant, the sentence is reduced by onethird (Article 442 § 2). The judgment is delivered in private. 22. Under the terms of Article 597 § 1 of the CCP: “The appeal judge shall be empowered to rule (la congnizione del procedimento) solely (limitatamente) on those aspects of the decision referred to in the grounds of appeal.” | 1 |
dev | 001-102837 | ENG | CHE | CHAMBER | 2,011 | CASE OF MOUVEMENT RAËLIEN SUISSE v. SWITZERLAND | 3 | No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) | Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 6. The applicant association, which was set up in 1977, is a non-profit association registered in Rennaz (Canton of Vaud). It is the national branch of the Raelian Movement, an organisation based in Geneva and founded in 1976 by Claude Vorilhon, known as “Raël”. According to its constitution, its aim is to make the first contacts and establish good relations with extraterrestrials. 7. On 7 March 2001 the applicant association requested authorisation from the police administration for the city of Neuchâtel (the “police administration”) to conduct a poster advertising campaign in the period between 2 and 13 April 2001. The poster in question, measuring 97x69 cm, featured in the upper part the following wording in large yellow characters on a dark blue background: “The Message from Extraterrestrials”; in the lower part of the poster, in characters of the same size but in bolder type, the address of the Raelian Movement’s website, together with a telephone number in France, could be seen; at the very bottom was the phrase “Science at last replaces religion”. The middle of the poster was taken up by pictures of extraterrestrials’ faces and a pyramid, together with a flying saucer and the Earth. 8. On 29 March 2001 the police administration denied authorisation, referring to two previous refusals. It had been indicated in a French parliamentary report on sects, dating from 1995, and in a judgment of the president of the Civil Court for the district of La Sarine (Canton of Fribourg), that the Raelian Movement engaged in activities that were contrary to public order (ordre public) and immoral. 9. In a decision of 19 December 2001 the municipal council of the city of Neuchâtel dismissed an appeal from the applicant association, finding that it could not rely on the protection of religious freedom because it was to be regarded as a dangerous sect. The interference with freedom of expression had been based on Article 19 of the Administrative Regulations for the City of Neuchâtel (the “Regulations”); its purpose was to protect the public interest and it was proportionate, since the organisation advocated, among other things, human cloning, “geniocracy” and “sensual meditation”. 10. On 27 October 2003 the Neuchâtel Land Management Directorate upheld that decision. It noted that, for the Raelian Movement, life on earth had been created by extraterrestrials, who were also the founders of the various religions and were capable of saving the world, and accepted that this amounted to a religious conviction protected by freedom of conscience and belief. It further accepted that the Neuchâtel Regulations constituted a sufficient legal basis in such matters. The Directorate observed that there was nothing offensive in the text and picture on the poster, or in the allusion to extraterrestrials. However, it pointed to the fact that the Raelian Movement advocated “geniocracy” (a political model based on intelligence), and human cloning. Moreover, in a judgment of 13 February 1998, concerning a right of reply, the Fribourg Cantonal Court had found that the movement also “theoretically” advocated paedophilia and incest, especially in the works of Raël himself. The practice of “sensual meditation” could also easily lead to abuse. In addition, the website of Clonaid, to which the Raelian Movement’s site had a link, proposed specific services in the area of cloning, and eugenism was contrary to the principle of non-discrimination. The poster advertising campaign was prejudicial to morals and to the rights of others. In any event, the Raelian Movement had other means to disseminate its ideas. 11. The applicant association appealed to the Administrative Court for the Canton of Neuchâtel. It claimed, among other things, that the mere defence of “geniocracy”, cloning and sensual meditation were not offensive opinions. Moreover, it argued that the movement denounced paedophilia through its association Nopedo. The refusal to authorise its poster thus amounted purely and simply to censorship, especially as the applicant association’s website was, in any event, accessible through a search engine. 12. In a judgment of 22 April 2005 the Administrative Court dismissed the appeal, after acknowledging, however, that the applicant association defended a global vision of the world and was entitled to both freedom of opinion and religious freedom. It found first that the impugned measure was based on the Administrative Regulations, which constituted a law in the substantive sense, and that the poster had to be assessed in relation to the message conveyed by the books and websites that could be accessed from the movement’s website. The services proposed by Clonaid were manifestly contrary to Swiss public order. The court further observed that criminal complaints had been filed against the Raelian Movement alleging the existence of sexual practices that were intended to systematically corrupt young teenagers. The content of the works on “geniocracy” and “sensual meditation” could lead certain adults to sexually abuse children, the child being described in certain works as a “privileged sexual object”. The comments on “geniocracy” and the criticisms of contemporary democracies were likely to undermine public order, safety and morality. For those reasons the Administrative Court concluded that it was not justifiable to authorise the dissemination of such ideas on the public highway. 13. The applicant association lodged a public-law appeal against that judgment with the Federal Court, requesting that it be set aside and that the case be referred back to the respondent authority for a new decision. 14. In a judgment of 20 September 2005, served on the applicant association on 10 October 2005, the Federal Court dismissed the appeal. The relevant passages read as follows: “The Directorate, then the Administrative Court, acknowledged that the [applicant] association could rely on the right to freedom of religion (Art. 15 of the Constitution, Art. 9 ECHR and Art. 18 UN Covenant II), in so far as it defended a global vision of the world, especially as regards its creation and the origin of the various religions. The City of Neuchâtel disputes this, noting that the aim of the [applicant] association as defined in Article 2 of its Constitution, is not religious in nature. According to a report on ‘sects’ produced in 1995 for the French National Assembly, the Raelian Movement is classified among the movements that present dangers for the individual, especially on account of the excessive financial demands made of its members and practices that cause bodily harm, and also dangers for the community, in particular through an antisocial discourse. Many of the movement’s publications contain passages described as offensive. There is no need to ascertain whether a religious movement may, on account of the dangers it represents, be precluded from relying on the right to freedom of religion, or whether the [applicant] association presents such dangers. Indeed, the parties agree that the applicant is entitled to rely on the right to freedom of opinion. As to the conditions in which such freedom may be restricted, as laid down in Article 36 of the Constitution, it makes little difference whether Article 15 or Article 16 of the Constitution is relied on (see also Articles 9 § 2 and 10 § 2 ECHR). The applicant association does not argue that the impugned measure impairs the very essence of its religious freedom, or that the restrictions . On the contrary, the applicant association relies on the principles of proportionality and public interest, without distinction as to the constitutional right invoked. ... 5.2 According to case-law, citizens do not have an unconditional right to an extended use of public space, in particular when a means of advertising on the public highway involves activity of a certain scale and duration, and excludes any similar use by third parties (Federal Court judgment 128 I 295 point 3c/aa p. 300 and the judgments cited therein). When it wishes to grant authorisation for extended or private use of public space, or when it supervises the conditions under which a licence is used, the State must nevertheless take into account, in balancing the interests at stake, the substantive content of the right to freedom of expression (Federal Court judgment 100 Ia 392 point 5 p. 402). 5.3 In the present case, the grounds given by the Cantonal Court to confirm the refusal by the City of Neuchâtel relate to respect for morality and the Swiss legal order. The Administrative Court took the view that it was necessary to take into account not only the content of the poster but also the ideas conveyed by the Raelian Movement, together with the works and websites that could be accessed from the movement’s website. Three different criticisms are thus directed against the [applicant] association. Firstly, the [applicant] association’s website contains a link to that of Clonaid, via which this company offers specific cloning-related services to the general public and announced, in early 2003, the birth of cloned babies. Cloning is prohibited under Swiss law, pursuant to Art. 119 of the Constitution and to the Medically-Assisted Reproduction Act (RS 814.90). Secondly, the Administrative Court referred to a judgment of the District Court of La Sarine, which mentioned possible sexual abuse of children. Numerous members of the movement had, moreover, been investigated by the police because of their sexual practices. Thirdly, the promotion of ‘geniocracy’, a doctrine according to which power should be given to the most intelligent individuals, and the criticism consequently directed at contemporary democracies, was likely to undermine the maintaining of public order, safety and morality. 5.4 The applicant no longer contests, at this stage, the existence of a sufficient legal basis, namely, in this case, Article 19 of the Regulations. A municipal by-law offers the same guarantees, in terms of democratic legitimacy, as a Cantonal law, and thus constitutes a sufficient legal basis (judgment 1P.293/2004 of 31 May 2005 point 4.3 Federal Court judgment 131 I xxx; Federal Court judgment 122 I 305 point 5a p. 312; 120 Ia 265 point 2a p. 266/267 and the references cited therein). The applicant invokes, however, the principle of public interest and criticises the respondent authorities for going beyond the content of the poster and engaging in an assessment of the [applicant] association’s activities. It argues that if it had generally engaged in conduct that was immoral or in breach of public order, it would have been dissolved by the courts pursuant to Article 78 of the Civil Code. If no decision had been taken to that effect, it would not be possible to prohibit it from publicising its philosophy and world vision. 5.5 The poster in itself does not contain anything, either in its text or in its illustrations, that was unlawful or likely to offend the general public. Above the central drawing representing extra-terrestrials appears the text ‘The Message from Extraterrestrials’, without any explanation. Below that, the [applicant] association’s website address and a telephone number are printed in bolder type. The phrase ‘Science at last replaces religion’ is admittedly capable of offending the religious beliefs of certain persons, but it is merely the expression of the movement’s doctrine and cannot be described as particularly provocative. The poster as a whole can thus clearly be seen as an invitation to visit the website of the [applicant] association or to contact it by telephone. Faced with such advertising, the authority must examine not only the admissibility of the advertisement’s message as such, but also that of its content. It is therefore legitimate to ascertain whether the website in question might contain information, data or links capable of offending people or of infringing the law. Moreover, contrary to the applicant’s allegation, an association may be criticised for opinions or activities which, without constituting grounds for dissolution within the meaning of Article 78 of the Civil Code, nevertheless justify a restriction on advertising. 5.5.1 As regards cloning, it was not the opinions expressed by the [applicant] association in favour of such practices (particularly in the book Yes to Human Cloning, published in 2001 and available via the applicant’s website) that were penalised, but the link with the company Clonaid, set up by the association itself, which proposes various practical services in this area for payment. The issue is thus not simply, contrary to what the applicant has argued, the expression of a favourable opinion of cloning, protected by Article 16 of the Constitution, but the practice of that activity, in breach of its prohibition under Article 119 § 2 (a) of the Constitution. That provision, accepted in 1992 by the majority of the population and of the Swiss Cantons (in the form of Article 24novies (a) of the Constitution), falls in particular within a policy of protection of human dignity, according to the conception thereof that is generally shared in this country (FF 1996 III 278; see also the response of the Federal Council to a question from R. Gonseth of 9 June 1997). The applicant does not contest the unlawfulness of human cloning, especially if it is carried out for commercial gain (Section 36 § Medically-Assisted Reproduction Act; Art. 119 § 2 (e) of the Constitution). Nor can it seriously contest the fact that the link to the Clonaid website contributes to the promotion of an unlawful activity, and goes further than the mere expression of an opinion. On that first point, which already justifies the decision under appeal, the applicant has not put forward any real relevant argument within the meaning of Art. 90 § 1 (b) of the Judicial Organisation Act. 5.5.2 On 15 October 2003 the Intercantonal Beliefs Information Centre provided information on the Raelian Movement. This information shows, among other things, that the movement apparently has a political mission. Virulently attacking democracies, which are referred to as ‘mediocracies’, it defends the notion of ‘geniocracy’, a political model based on individuals’ level of intelligence. A world government would consist of geniuses, elected by individuals whose intelligence is 10% higher than average. Admittedly, “geniocracy” is presented as a utopia and not as a genuine political project; contrary to the finding of the Administrative Court, this doctrine does not appear likely to undermine public order or safety. However, apart from the fact that the doctrine appears to be largely inspired by eugenism, it is manifestly capable of offending the democratic and anti-discriminatory convictions that underpin the rule of law (see, in particular, the wording of the preamble to the Federal Constitution of 18 April 1999, together with Article 8 of the Constitution concerning equality and the prohibition of discrimination). 5.5.3 Lastly, according to the judgment under appeal, it cannot be considered that the Raelian Movement advocates paedophilia. However, numerous members have apparently been investigated by the police on account of their sexual practices. According to a judgment delivered on 28 November 1997 by the District Court of La Sarine, concerning a right of reply requested by the Mouvement raëlien suisse, the remarks made by Raël in his works could lead certain adults to commit acts of sexual abuse against children. The judgment quotes extracts from works by Raël that can be downloaded from the website of the [applicant] association, according to which the sexual education of children should not only be theoretical but should consist of a sensual education aimed at showing them how to derive pleasure from it. That judgment further indicates that, notwithstanding the denial subsequently issued on this point, certain articles published in the quarterly newsletter Apocalypse described the child as a ‘privileged sexual object’. Lastly, it is stated that a friend and a member of the Raelian Movement were convicted by the Vaucluse Assize Court and sentenced to five years’ imprisonment for sexually assaulting a 12-year-old girl. The judgment was upheld on 13 February 1998 by the Fribourg Cantonal Court. An ordinary appeal and a public-law appeal by the Mouvement raëlien were dismissed on 24 August 1998 by the Federal Court, having regard in particular to the equivocal writings of the movement’s founder or members (judgments 5P.172/1998 and 5C.104/1998). The case-file, moreover, contains various documents concerning criminal proceedings brought against members of the [applicant] association for sexual assault. A judgment of 24 January 2002 of the Lyon Court of Appeal clearly shows that acts of sexual abuse were committed by leaders of the movement against minors. The movement’s leaders are thus said to have advocated ‘a broad sexual freedom strongly encouraging commission of the act’; they had thus corrupted young teenagers by supposedly philosophical discourse, by increasingly specific sexual fondling and by inciting them more and more forcefully, in order to satisfy ‘their sexual needs and fantasies with young girls who had just turned fifteen, and who were changing partners very quickly’. The fact that the impugned articles date from the 1980s and that there has been no conviction in Switzerland does not negate the involvement of members of the [applicant] association in acts leading to criminal sanctions. The applicant association does not dispute the fact that certain passages in the books available via its website could lead adults to abuse children. On that point also, the applicant’s arguments do not address the grounds set out in the decision under appeal. Since acts of abuse have indeed been recorded on the part of certain members of the Raelian Movement, the argument that paedophilia is strongly condemned by the movement’s official doctrine is not decisive. 5.6 Having regard to the foregoing, the refusal issued to the applicant association appears to be justified by sufficient public-interest grounds, because it is necessary to prevent the commission of acts constituting criminal offences under Swiss law (reproductive cloning and sexual acts with children). Moreover, certain passages in the works available via the applicant’s website (in particular about the ‘sensual awakening’ of children, and ‘geniocracy’) are likely to be seriously offensive to readers. 5.7 The applicant association invokes the principle of proportionality. It points out that the poster itself contains nothing that is contrary to public order, and maintains that the measure is not appropriate to the aim pursued. 5.7.1 In accordance with Article 36 § 3 of the Constitution., any restriction on a fundamental right must be proportionate to the aim pursued. It must be appropriate to the fulfilment of that aim and any damage to private interests must be kept to a minimum (Federal Court judgment 125 I 474 point 3 p. 482 and the references cited therein). 5.7.2 In the present case, the public interest does not only consist in limiting the publicity given to the [applicant] association’s website, in view of the reservations expressed above about public order and morality; it is even more important to ensure that the State does not provide any support for such publicity by making public space available for it, which might suggest that it endorses or tolerates the opinions or conduct in question. From that perspective, the prohibition of the posters is appropriate to the aim pursued. Furthermore, the measure criticised by the applicant is confined to the display of posters in public spaces. The [applicant] association remains free to express its beliefs by many other means of communication at its disposal (see the Murphy judgment of 10 July 2003, ECHR 2003-IX, p. 33, § 74). 5.7.3 The applicant takes the view that the authority should have suggested that it make changes to the poster in order to make the content admissible. However, even though it was aware of the objections raised against its poster campaign, the applicant itself never proposed a version of the poster that was likely to be authorised. The Administrative Court, for its part, found that the poster should be prohibited even without the reference to the website, but this seems questionable; there is no doubt, however, that the removal of the address in question would deprive the poster campaign of its object, which, as has been shown, is essentially to advertise the website itself. It is therefore difficult to see what comprehensible meaning the poster could have had without that reference to the website and to the telephone number. 5.7.4 The impugned measure therefore respects the principle of proportionality, in all its aspects. It constitutes, for the same reasons, a restriction that is necessary ‘in a democratic society’, in particular for the protection of morals, within the meaning of Articles 9 § 2 and 10 § 2 of the ECHR.” 15. Article 119 of the Federal Constitution concerns reproductive medicine and gene technology involving human beings. That provision reads as follows: “Human beings shall be protected against the misuse of reproductive medicine and gene technology. The Confederation shall legislate on the use of human reproductive and genetic material. In doing so, it shall ensure the protection of human dignity, privacy and the family and shall adhere in particular to the following principles: (a) All forms of cloning and interference with the genetic material of human reproductive cells and embryos are unlawful. (b) Non-human reproductive and genetic material may neither be introduced into nor combined with human reproductive material. (c) Methods of medically-assisted reproduction may be used only if infertility or the risk of transmitting a serious illness cannot otherwise be overcome, but not in order to conceive a child with specific characteristics or for research purposes; the fertilisation of human egg cells outside a woman’s body is permitted only under the conditions laid down by the law; no more human egg cells may be developed into embryos outside a woman’s body than are capable of being immediately implanted. (d) The donation of embryos and all forms of surrogate motherhood are unlawful. (e) Trade in human reproductive material and in products obtained from embryos is prohibited. (f) The genetic material of a person may be analysed, registered or made public only with the consent of the person concerned or if the law so provides. (g) Everyone shall have access to data relating to their ancestry.” | 0 |
dev | 001-61246 | ENG | GBR | CHAMBER | 2,003 | CASE OF EDWARDS AND LEWIS v. THE UNITED KINGDOM | 2 | Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings | Matti Pellonpää;Nicolas Bratza | 9. The first applicant was born in 1946 and lives in Woking. 10. On 9 August 1994, following a surveillance and undercover operation, he was arrested in a van in the company of an undercover police officer known only as “Graham”. In the van was a briefcase containing 4.83 kilograms of 50% pure heroin. On 7 April 1995 the applicant was convicted in Snaresbrook Crown Court of possessing a Class A drug with intent to supply and was sentenced to nine years' imprisonment. 11. The first applicant's defence was that at the time of his arrest he believed he was taking part in a transaction to sell stolen jewellery. He alleged that his participation had been organised by a man named Geoffrey Lerway, whom he had met the previous year while both were detained on remand in Brixton Prison. According to the applicant, the week before his arrest Lerway had introduced him to a man called Jim Humphries and a man presented to him only as “Martin”. The day before the arrest, the applicant was contacted by Lerway and asked if he would be interested in going to Birmingham in connection with a jewellery deal in which Lerway was acting as intermediary to Martin. He would be given a cut of the purchase price. The applicant agreed that Lerway would pick him up from his home the next day. 12. The following morning he was told that the plans had changed as Martin was now coming to London. The first applicant agreed to accompany Lerway to a public house where, at approximately 12.45 p.m., a red Jaguar car and a white van drew up. The driver of the Jaguar was introduced to the applicant as “Jeff”; he was accompanied by a man and a woman, subsequently called “Terry” and “Carol”. The driver of the van was introduced as “Graham”. Jeff gave Lerway a briefcase containing GBP 125,000. They all then left in convoy for the Clive Hotel, Primrose Hill, where they were to meet Martin. 13. At the hotel, Lerway decided to stay with the money in the car and asked the applicant to see if Martin had arrived. The applicant therefore went into the hotel where he met Jim Humphries, who told him that the arrangements had changed again as Martin was now in Euston. Humphries and Lerway asked the applicant to take a taxi to Euston and ask Martin to return with him to the Clive Hotel. The applicant followed these instructions and found Martin, who told him he had to leave immediately for another meeting. Martin, having spoken to Humphries or Lerway by mobile phone, gave the applicant the key to a room in the nearby Ibis Hotel, and explained that the “goods” were in a briefcase in the room. 14. According to the applicant, Graham came from Primrose Hill in his van and met the applicant outside the Ibis. Graham then suggested that the applicant should accompany him up to the room and offered to give him a lift back to Primrose Hill afterwards. In the hotel room, Graham forced the lock on the case while the applicant was in the bathroom and when he came out Graham was ready to go. They returned to the van where the briefcase was opened and within moments the applicant had been arrested. 15. Of all the participants in the above transaction, only the applicant was arrested and charged. The applicant suspects that the other participants were undercover police officers or informers acting on police instructions, but their identities and status have never been revealed to him. In this regard he considers it relevant that at the time of the alleged dealings, Lerway was on bail to the Middlesex Crown Court in respect of a large scale conspiracy to supply cannabis. One of the conspirators was a former Flying Squad Detective. It was known to the applicant that Lerway had acted as a participating police informer in that case and it was further known that the police officers involved in the applicant's case had also investigated the conspiracy for which Lerway was on bail. The applicant believes that sentencing in Lerway's trial was deliberately postponed until 12 April 1995, some five days after the conclusion of the applicant's own trial, as a disincentive for Lerway to come forward and give evidence concerning the true nature of the transaction. 16. Prior to the commencement of the applicant's trial the prosecution gave notice to the defence that an application to withhold material evidence had been made ex parte in advance of the trial under the procedure approved in R. v. Davis, Johnson and Rowe (see paragraph 34 below). Judge Owen Stable QC, who considered the material in the absence of the defence, concluded that it would not assist the defence and that there were genuine public interest grounds for withholding it. This ruling was subsequently reconsidered by the trial judge, who had the benefit of a document prepared by the defence, outlining the issues in the case, as well as of the oral submissions of defence counsel. In the course of the present proceedings before the European Court, the Government revealed for the first time that the material placed before the trial judge included information indicating that the applicant had been involved in the supply of heroin before the start of the undercover operation. The subject matter of the public interest immunity evidence was not disclosed to the applicant during the domestic proceedings, either at first instance or on appeal. He denies any prior involvement in drug dealing. The trial judge, who directed himself in accordance with the approach set out by the Court of Appeal in R. v. Keane (see paragraph 36 below), decided that the evidence in question would not assist the defence and found genuine public interest grounds in favour of non-disclosure. 17. Following the ruling on disclosure, the defence made an application to the trial judge under section 78 of the Police and Criminal Evidence Act 1984 (“PACE”: see paragraph 29 below) to exclude the evidence of Graham, on the basis that the applicant had been entrapped into committing the offence. These submissions were rejected. The judge held that in the course of the ex parte application he had heard nothing and seen no material which would have assisted the defence in their argument that evidence should be excluded under section 78 on grounds of entrapment. He continued that, if he had seen or heard any such material, he would have ordered disclosure. 18. Apart from the applicant, Graham was the only participant in the offence to give evidence at the trial. He testified that the applicant had made a number of incriminating statements to him when they were alone together in the van and hotel room. Although Graham claimed to have made a full note of the alleged conversations, these notes were never shown to the applicant and the applicant was not questioned in connection with their content by the investigating police officers. According to the applicant it was, however, difficult for the defence to undermine Graham's credibility because his full name and other identifying details were not disclosed. 19. Following his conviction the applicant appealed to the Court of Appeal on the ground, inter alia, that the judge had been wrong to refuse to order disclosure. Dismissing the appeal on 18 July 1996 the Court of Appeal, having itself examined the undisclosed evidence, observed that “each one of us reached the clearest possible view that nothing in the documents withheld could possibly have assisted the defence at trial; indeed quite the reverse”. 20. Prior to the events in question, the applicant was of good character. He had been employed as accounts director in a firm which had gone into liquidation a year earlier, and at the time of his arrest in July 1995 he was unemployed and in considerable debt. 21. The applicant's version of events, which he maintained from the time of his first interview with the police, was that he had been introduced to a man named “Terry” by an acquaintance, Colin Phelps, since Terry appeared interested in purchasing from the applicant some bankrupt stock. At a meeting in July 1995 Terry had started talking about counterfeit currency and had pressed the applicant to obtain some as part of the transaction. Although the applicant had never hitherto been involved with counterfeit currency, he did have a contact, “John”, who was able to supply forged bank notes. 22. Terry went on to introduce the applicant to two men called “Jag” and “Jazz”. At a third meeting on 14 July 1995, Jag turned up with “Chris”, who was subsequently revealed to be an undercover police officer, and an order for a large amount of currency was placed. It appears from the transcript of covert tape recordings made during this meeting that, while the applicant was not unwilling to become involved, he was actively encouraged to do so by Jag and Chris, who pressurised him to a certain degree to supply more notes of a higher denomination than had at first been agreed. On 25 July 1995 the applicant met Chris and another undercover officer, “Ian”, in a public house car park. He showed them some counterfeit notes, and was immediately arrested by uniformed officers. More counterfeit notes were found when his house was searched. 23. The applicant maintained that he had been entrapped by undercover police officers and/or participating informers into committing the offences. On 11 November 1996 he applied to the Crown Court judge for an order that the indictment should be stayed on the grounds that, as a result of the covert activities of undercover police officers and/or participating informers, (a) it was not possible for him to have a fair trial and (b) the moral integrity of the criminal proceedings had been impugned. He also requested the judge to order the prosecution to provide more information and documents, including information relating to the question whether Colin Phelps, “Terry” or “Tel”, “Jazz” or “Jag” were participating informers or undercover police officers. 24. Prior to making his ruling on the defence application, the judge heard, ex parte, an application by the prosecution to withhold certain material evidence on grounds of public interest immunity. The judge refused to grant a stay or to order further disclosure, indicating that most of the information sought was subject to public interest immunity. He also ruled that, while it was clear that “Chris” was coaxing the applicant, there was no evidence of pressure being applied. 25. A second submission was then made on the applicant's behalf to exclude the evidence of undercover police officers under section 78 of PACE. However, before evidence was called from the officers in question – “Chris” and “Ian” – the defence counsel sought guidance from the judge as to the areas of cross examination which would or would not be allowed, given that certain issues relating to the investigation were covered by public interest immunity. It became apparent that most of the areas of cross examination necessary to develop the submission were not to be allowed. Accordingly, the submission was withdrawn and the applicant entered guilty pleas to the indictment on 12 November 1996. 26. On 20 November 1996 he was sentenced to a total of four and a half years' imprisonment. 27. On 28 November 1996 counsel advised that the applicant had no prospects of success in appealing against conviction, since he would have to demonstrate that the convictions were unsafe before an appeal could succeed. This would be impossible given that, on his own account, he had been motivated by money to enter into the deal to sell counterfeit currency. Counsel also expressed the view that: “Had there been anything within the [public interest immunity] material which could have assisted the Defendant in developing his case to exclude the evidence under s.78 PACE I am confident the Judge would have released it. In those circumstances, I advise that there are no grounds of appeal against conviction.” 28. The fact that a defendant would not have committed an offence were it not for the activity of an undercover police officer or an informer acting on police instructions does not provide a defence under English law. The judge does, however, have a discretion to order a stay of a prosecution where it appears that entrapment has occurred, as the House of Lords affirmed in R. v. Looseley; Attorney General's Reference (No. 3 of 2000) ([2001] UKHL 53), a judgment which followed and approved earlier case-law, including case-law which applied at the times of the applicants' trials (for example, the judgment of the House of Lords in R. v. Latif [1996] vol. 1 Weekly Law reports p. 104). In Looseley, Lord Nicholls of Birkenhead explained, (§ 1): “My Lords, every court has an inherent power and duty to prevent abuse of its process. This is a fundamental principle of the rule of law. By recourse to this principle courts ensure that executive agents of the state do not misuse the coercive, law enforcement functions of the courts and thereby oppress citizens of the state. Entrapment ... is an instance where such misuse may occur. It is simply not acceptable that the state through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so. That would be entrapment. That would be a misuse of state power, and an abuse of the process of the courts. The unattractive consequences, frightening and sinister in extreme cases, which state conduct of this nature could have are obvious. The role of the courts is to stand between the state and its citizens and make sure this does not happen”. 29. In addition, the court has a discretion, under section 78 of the Police and Criminal Evidence Act 1984, to exclude evidence obtained by an undercover police officer where, inter alia, the defendant would not have committed the offence without the police incitement (R. v. Smurthwaite; R. v. Gill (1994) vol. 98 Criminal Appeal Reports p. 437, judgment of the Court of Appeal; and Looseley, cited above). Of the two remedies, the grant of a stay, rather than the exclusion of evidence, is the more appropriate remedy because a prosecution founded on entrapment is an abuse of the court's process and should not have been brought in the first place. 30. In Looseley, their Lordships agreed that it was not possible to set out a comprehensive definition of unacceptable police conduct or “state created crime”. In each case it was for the judge, having regard to all the circumstances, to decide whether the conduct of the police or other law enforcement agency was so seriously improper as to bring the administration of justice into dispute. Factors to be taken into account included the nature of the offence, the reason for the particular police operation, the possibility of using other methods of detection and the nature and extent of police participation in the crime; the greater the inducement held out by the police, and the more forceful and persistent the police overtures, the more readily might a court conclude that the police had overstepped the boundary, since their conduct might well have brought about the commission of a crime by a person who would normally avoid crime of that kind. The police should act in good faith to uncover evidence of criminal acts which they reasonably suspected the accused was about to commit or was already engaged in committing, and the police operation should be properly supervised. The defendant's criminal record was unlikely to be relevant unless it could be linked to other factors grounding reasonable suspicion that he or she had been engaged in the criminal activity in question prior to the involvement of the police (per Lord Nicholls, §§ 26-29; Lord Hoffmann, §§ 50-71). 31. At common law, the prosecution has a duty to disclose any material which has or might have some bearing on the offence charged. This duty extends to any earlier written or oral statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial and statements of any witnesses potentially favourable to the defence. 32. In December 1981 the Attorney-General issued Guidelines, which did not have the force of law, concerning exceptions to the common law duty to disclose to the defence evidence of potential assistance to it ((1982) 74 Criminal Appeal Reports, p. 302 (“the Guidelines”)). According to the Guidelines, the duty to disclose was subject to a discretionary power for prosecuting counsel to withhold relevant evidence if it fell within one of the categories set out in paragraph 6. One of these categories (6(iv)) was “sensitive” material which, because of its sensitivity, it would not be in the public interest to disclose. “Sensitive material” was defined as follows: “... (a) it deals with matters of national security; or it is by, or discloses the identity of, a member of the Security Services who would be of no further use to those services once his identity became known; (b) it is by, or discloses the identity of, an informant and there are reasons for fearing that the disclosure of his identity would put him or his family in danger; (c) it is by, or discloses the identity of, a witness who might be in danger of assault or intimidation if his identity became known; (d) it contains details which, if they became known, might facilitate the commission of other offences or alert someone not in custody that he is a suspect; or it discloses some unusual form of surveillance or method of detecting crime; (e) it is supplied only on condition that the contents will not be disclosed, at least until a subpoena has been served upon the supplier – e.g. a bank official; (f) it relates to other offences by, or serious allegations against, someone who is not an accused, or discloses previous convictions or other matters prejudicial to him; (g) it contains details of private delicacy to the maker and/or might create risk of domestic strife.” 33. In R. v. Ward ([1993] vol. 1 Weekly Law Reports p. 619) the Court of Appeal stressed that the court and not the prosecution was to decide whether or not relevant evidence should be retained on grounds of public interest immunity. It explained that “... a judge is balancing on the one hand the desirability of preserving the public interest in the absence of disclosure against, on the other hand, the interests of justice. Where the interests of justice arise in a criminal case touching and concerning liberty or conceivably on occasion life, the weight to be attached to the interests of justice is plainly very great indeed”. 34. In R. v. Davis, Johnson and Rowe ([1993] vol. 1 Weekly Law Reports p. 613), the Court of Appeal held that it was not necessary in every case for the prosecution to give notice to the defence when it wished to claim public interest immunity, and outlined three different procedures to be adopted. The first procedure, which had generally to be followed, was for the prosecution to give notice to the defence that they were applying for a ruling by the court and indicate to the defence at least the category of the material which they held. The defence would then have the opportunity to make representations to the court. Secondly, however, where the disclosure of the category of the material in question would in effect reveal that which the prosecution contended should not be revealed, the prosecution should still notify the defence that an application to the court was to be made, but the category of the material need not be disclosed and the application should be ex parte. The third procedure would apply in an exceptional case where to reveal even the fact that an ex parte application was to be made would in effect be to reveal the nature of the evidence in question. In such cases the prosecution should apply to the court ex parte without notice to the defence. 35. The Court of Appeal observed that although ex parte applications limited the rights of the defence, in some cases the only alternative would be to require the prosecution to choose between following an inter partes procedure or declining to prosecute, and in rare but serious cases the abandonment of a prosecution in order to protect sensitive evidence would be contrary to the public interest. It referred to the important role performed by the trial judge in monitoring the views of the prosecution as to the proper balance to be struck and remarked that even in cases in which the sensitivity of the information required an ex parte hearing, the defence had “as much protection as can be given without pre-empting the issue”. Finally, it emphasised that it was for the trial judge to continue to monitor the position as the trial progressed. Issues might emerge during the trial which affected the balance and required disclosure “in the interests of securing fairness to the defendant”. For this reason it was important for the same judge who heard any disclosure application also to conduct the trial. 36. The leading case on disclosure at the time of the applicant's trial was the judgment of the Court of Appeal in R. v. Keane ([1994] vol. 1 Weekly Law Reports p. 746). The Lord Chief Justice, giving the judgment of the court, held that the prosecution should put before the judge only those documents which it regarded as material but wished to withhold on grounds of public interest immunity. “Material” evidence was defined as evidence which could be seen, “on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence which the prosecution proposes to use; (3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2)”. 37. Once the judge was seized of the material, he or she had to perform the balancing exercise between the public interest in non-disclosure and the importance of the documents to the issues of interest, or likely to be of interest, to the accused. If the disputed material might prove the defendant's innocence or avoid a miscarriage of justice, the balance came down firmly in favour of disclosing it. Where, on the other hand, the material in question would not be of assistance to the accused, but would in fact assist the prosecution, the balance was likely to be in favour of non-disclosure. 38. In the case of R. v. Turner ([1995] vol. 1 Weekly Law Reports p. 264), the Court of Appeal returned to the balancing exercise, stating inter alia: “Since R. v. Ward ... there has been an increasing tendency for defendants to seek disclosure of informants' names and roles, alleging that those details are essential to the defence. Defences that the accused has been set up, and allegations of duress, which used at one time to be rare, have multiplied. We wish to alert judges to the need to scrutinise applications for disclosure of details about informants with very great care. They will need to be astute to see that assertions of a need to know such details, because they are essential to the running of the defence, are justified. If they are not so justified, then the judge will need to adopt a robust approach in declining to order disclosure. Clearly, there is a distinction between cases in which the circumstances raise no reasonable possibility that information about the informant will bear upon the issues and cases where it will. Again, there will be cases where the informant is an informant and no more; other cases where he may have participated in the events constituting, surrounding, or following the crime. Even when the informant has participated, the judge will need to consider whether his role so impinges on an issue of interest to the defence, present or potential, as to make disclosure necessary ...” 39. The requirements of disclosure have since been set out in a statutory scheme. Under the Criminal Procedure and Investigations Act 1996 (“the 1996 Act”), which came into effect in England and Wales immediately upon gaining Royal Assent on 4 July 1996, the prosecution must make “primary disclosure” of all previously undisclosed evidence which, in the prosecutor's view, might undermine the case for the prosecution. The defendant must then give a defence statement to the prosecution and the court, setting out in general terms the nature of the defence and the matters on which the defence takes issue with the prosecution. The prosecution must then make a “secondary disclosure” of all previously undisclosed material “which might reasonably be expected to assist the accused's defence as disclosed by the defence statement”. Disclosure by the prosecution may be subject to challenge by the accused and review by the trial court. 40. Following the judgments of the Court in Chahal v. the United Kingdom (15 November 1996, Reports of Judgments and Decisions 1996-V) and Tinnelly v. the United Kingdom (10 July 1998, Reports 1998-IV), the United Kingdom has introduced legislation making provision for the appointment of a “special counsel” in certain cases involving national security. The provisions are contained in the Special Immigration Appeals Commission Act 1997 (“the 1997 Act”), and the Northern Ireland Act 1998 (“the 1998 Act”). Under this legislation, where it is necessary on national security grounds for the relevant tribunal to sit in camera, in the absence of the affected individual and his or her legal representatives, the Attorney General may appoint a special counsel to represent the interests of the individual in the proceedings. The legislation provides that the special counsel is not however “responsible to the person whose interest he is appointed to represent”, thus ensuring that the special counsel is both entitled and obliged to keep confidential any information which cannot be disclosed. The relevant rules giving effect to the 1997 and 1998 Acts are set out in the Court's judgment in Jasper v. the United Kingdom ([GC], no. 27052/92, § 36, ECHR 2000). 41. In December 1999 the Government commissioned a comprehensive review of the criminal justice system, under the chairmanship of a senior Court of Appeal judge, Sir Robin Auld. The report, published in September 2001 after extensive consultation and entitled “The Review of the Criminal Courts in England and Wales” (“the Auld Report”), recommended, inter alia, the introduction of a “special counsel” scheme in cases where the prosecution wished to seek, ex parte, non-disclosure on grounds of public interest immunity. The recommendation was explained in the Report as follows (footnotes omitted): “193. The scheme [developed by the common law since R v. Ward and reflected in the 1996 Act: see above] is an improvement on what went before and has been generally welcomed on that account. But there is widespread concern in the legal professions about lack of representation of the defendant's interest in the [ex parte] forms of application, and anecdotal and reported instances of resultant unfairness to the defence. ... A suggestion, argued on behalf of applicants in Strasbourg and widely supported in the Review, is that the exclusion of the defendant from the procedure should be counterbalanced by the introduction of a 'special independent counsel'. He would represent the interest of the defendant at first instance and, where necessary, on appeal on a number of issues: first, as to the relevance of the undisclosed material if and to the extent that it has not already been resolved in favour of disclosure but for a public interest immunity claim; second, on the strength of the claim to public interest immunity; third, on how helpful the material might be to the defence; and fourth, generally to safeguard against the risk of judicial error or bias. 194. In my view, there is much to be said for such a proposal, regardless of the vulnerability or otherwise of the present procedures to Article 6. Tim Owen QC, in a paper prepared for the Review, has argued powerfully in favour of it. It would restore some adversarial testing of the issues presently absent in the determination of these often critical and finely balanced applications. It should not be generally necessary for special counsel to be present throughout the trial. Mostly the matter should be capable of resolution by the court before trial and, if any question about it arises during trial, he could be asked to return. If, because of the great number of public interest immunity issues now being taken in the courts, the instruction of special counsel for each would be costly, it simply indicates, as Owen has commented, the scale of the problem and is not an argument against securing a fair solution. 195. The role would be similar to that of an amicus curiae brought in to give independent assistance to a court, albeit mostly on appeal. In rape cases, where an unrepresented defendant seeks to cross-examine a complainant, the court must inform him that he may not do so, and should he refuse to instruct counsel, the court will appoint and instruct one. After the decisions of the European Court of Human Rights in Chahal and Tinnelly, the Government introduced such a procedure in immigration cases involving national security. Although such cases are extremely rare, it is sufficient that the principle of a 'third' or 'special' counsel being instructed on behalf of a defendant has been conceded in a number of areas. 196. The introduction of a system of special independent counsel could, as Owen has also noted, in part fill a lacuna in the law as to public interest immunity hearings in the absence of a defendant appellant in the Court of Appeal, to which the 1996 Act and supporting Rules do not apply. Where there has been a breach of Article 6 because a trial judge did not conduct a public interest immunity hearing due to the emergence of the material only after conviction, the European Court of Human Rights has held that the breach cannot be cured by a hearing before the Court of Appeal in the absence of the appellant. The Court's reasons for so holding were that the appeals court is confined to examining the effect of non-disclosure on the trial ex post facto and could possibly be unconsciously influenced by the jury's verdict into underestimating the significance of the undisclosed material. 197. However, even the introduction of special counsel to such hearings would not solve the root problem to which I have referred of police failure, whether out of incompetence or dishonesty, to indicate to the prosecutor the existence of critical information. Unless, as I have recommended, the police significantly improve their performance in that basic exercise, there will be no solid foundation for whatever following safeguards are introduced into the system. I recommend the introduction of a scheme for instruction by the court of special independent counsel to represent the interests of the defendant in those cases at first instance and on appeal where the court now considers prosecution applications in the absence of the defence in respect of the non-disclosure of sensitive material.” | 1 |
dev | 001-61374 | ENG | ITA | CHAMBER | 2,003 | CASE OF BRIENZA v. ITALY | 4 | Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 4. The applicant was born in 1956 and lives in San Cesareo (Rome). 5. P.C. was the owner of a flat in Rome, which she had let to A.C. 6. In a writ served on the tenant on 3 March 1986, the owner informed her of her intention to terminate the lease and summoned her to appear before the Rome Magistrate. 7. By a decision of 12 June 1986, which was made enforceable on 6 November 1986, the Rome Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1988. 8. On 30 April 1990, a notice was served on the tenant requiring her to vacate the premises. 9. On 18 May 1990, a notice was served on the tenant informing her that the order for possession would be enforced by a bailiff on 11 July 1990. 10. Between 11 July 1990 and 5 October 1999, the bailiff made thirty attempts to recover possession, but they proved unsuccessful as the owner and then the applicant were not entitled to police assistance in enforcing the order for possession. 11. On 21 June 1991, the applicant became the owner of the flat and pursued the enforcement proceedings 12. On 13 October 1997, he made a statutory declaration that he urgently required the premises as accommodation for himself. 13. On 2 May 2000, the applicant recovered possession of the flat. 14. Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession. The relevant domestic law concerning the extension of tenancies, the suspension of enforcement and the staggering of evictions is described in the Court's judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V. 15. As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows. 16. The first relevant measure was the Law no. 392 of 27 July 1978 which provided machinery for “fair rents” (the so-called equo canone) on the basis of a number of criteria such as the surface of the flat and its costs of realisation. 17. The second step of the Italian authorities dated August 1992. It was taken in the view of progressive liberalisation of the market of tenancies. Accordingly, a legislation relaxing on rent levels restrictions (the so-called patti in deroga) entered into force. Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price. 18. Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents. 19. The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat. In this regard, Article 1591 of the Italian Civil Code provides: “The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until the date when he leaves, together with other remaining damages.” 20. However, Law no. 61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law no. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat. 21. In the judgment no. 482 of 2000, the Constitutional Court was called upon to decide whether such a limitation complied with the Constitution. The Constitutional Court held that it was compatible with the Constitution with regard to periods of time during which the suspension of the evictions was determined by law. The Constitutional Court explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation, when the housing shortage made the suspension of the enforcement necessary. While evictions were suspended ex lege, the law predetermined the quantum of the reimbursement chargeable to the tenant, both measures being temporary and exceptional. Besides, the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages. 22. The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention. Accordingly, it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant. | 1 |
dev | 001-69469 | ENG | POL | CHAMBER | 2,005 | CASE OF ZAWADKA v. POLAND | 3 | Violation of Art. 8;Pecuniary damage - finding of violation sufficient;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings | null | 8. The applicant was born in 1960 and lives in Celestynów, Poland. 9. The applicant and O. had a relationship and were living together for an unspecified period. In 1994 O. gave birth to the applicant's son, P. In August 1996 during the applicant's stay abroad, P.'s mother, O., moved out from their house and took P. with her, apparently as a result of growing tensions and disagreements in the couple. Afterwards she refused to allow the applicant to have contact with P. Subsequently, on an unspecified date, the applicant took P back to his place, without O.'s agreement. 10. On an unspecified later date O. filed with the Białystok District Court (sąd rejonowy) a request for limitation of the applicant's parental responsibility for P. 11. On 12 September 1996 the court issued an interim order to place P. with his mother. It relied on P.'s age, on the fact that O. breast-fed P. and, also, on the fact that he was suffering from allergy. On the following day a court-appointed guardian assisted by a police officer arrived at the applicant's place and after a two-hour skirmish took P. away. 12. On 8 November 1996 the applicant and O. concluded a friendly settlement as to the access arrangements. They agreed that P.'s place of residence would be with his mother. The applicant had a right to take P. to his place at specified dates and times in 1996. Starting from 1 January 1997 he was supposed to spend every second weekend with his son at his home. As to the exact dates of meetings in 1997 the parties agreed to determine them at a later date. 13. At the beginning of 1997 O. refused to hand over her son to the applicant, maintaining that P. was ill at that time. 14. In February 1997 the applicant requested that a court guardian assist him in meetings with P., submitting that O. failed to comply with the settlement they had concluded in November 1996. 15. On an unspecified date the applicant petitioned the Białystok District Court to fine O. for obstructing his contacts with P. as established in the settlement of 8 November 1996. He also requested the prosecution authorities to institute criminal proceedings against O. 16. On an unspecified date at the requests of the applicant and O. proceedings concerning parental responsibility were instituted. 17. On 4 April 1997 the Białystok District Court stayed the proceedings concerning the applicant's petition, considering that only after the completion of the parental-responsibility proceedings would it be possible to examine them. The court observed that the parties to the court settlement of November 1996 had not specified the dates of the applicant's meetings with P. and that therefore the settlement was impossible to enforce. It was therefore impossible to examine the applicant's petition to have a fine imposed on O. 18. On 19 May 1997 the applicant went to O. and, after an altercation, took his son away. Subsequently, O. informed prosecution authorities that the applicant had kidnapped P. and threatened her. 19. On 22 May 1997 the applicant sent letters to the Białystok District Court and the prosecution authorities informing them that he had taken over the custody of P. and would continue to exercise his parental rights until the completion of the parental-responsibility proceedings pending before the District Court. He declared that O. would be able to meet her son at the applicant's home. 20. On 17 July 1997 the District Court, at O.'s request, ordered the applicant to hand over P. to O. within seven days. Initially, he declared his willingness to do so, but, subsequently, went into hiding together with his son. 21. On 5 August 1997 the Białystok District Prosecutor (prokurator rejonowy) discontinued the proceedings initiated at the applicant's request, considering that O. had not committed the criminal offence of obstructing his contacts with P. It was established that O. had ceased to comply with the terms of the November 1996 settlement at the beginning of 1997, relying on the fact that P. had been sick at that time. She also objected to the applicant taking P. to his home as he lived far away from O.'s residence. The applicant's appeal against that decision was dismissed by the Regional Prosecutor (prokurator wojewódzki). 22. On 25 August 1997 the prosecutor discontinued the investigations instituted at O.'s request. He considered that the applicant had not committed a criminal offence. It had been established that since 22 March 1997 O. had not allowed the applicant to take his son to his home, despite the fact that P. had got better. The applicant had only been allowed brief visits at her home to see P. The applicant had informed the police and requested to be given assistance, but his efforts failed to affect the mother's conduct. It was further pointed out that after taking away P. from his mother the applicant had informed the prosecution authorities in Białystok and Otwock about the incident. In the light of the fact that the applicant had full parental rights in respect of P. the prosecutor did not consider his acts a criminal offence. O.'s allegations about having been threatened by the applicant proved unsubstantiated. 23. On 21 August 1997 and 16 September 1997 the Otwock District Court ordered the applicant to reveal P.'s place of residence and warned him that in case of failure to comply with its order he would be fined, with imprisonment in default. He did not comply with these orders. 24. On 5 February 1998 the Otwock District Court issued an enforcement order in respect of the Białystok District Court's decision of 17 July 1997. It ordered a bailiff to take P. from the applicant by force and hand him over to O. 25. On 24 February 1998 in the course of the parental-responsibility proceedings the Białystok District Court limited the applicant's parental rights to a right to information about his child's health. It amended the settlement of 8 November 1996 in that it decided that further contacts between the applicant and his son should take place on the third Saturday of each month at the mother's home from 10 a.m. to 4 p.m. without the possibility to take P. anywhere. 26. The court referred to the November 1996 settlement between the parties, to the subsequent difficulties in the applicant's access to P. and to the fact that on 19 May 1997 he had taken P. to his place. The court considered that although there was nothing in the case-file to suggest that the applicant's parenting skills were insufficient and it was difficult to establish to which of the parents P. was more attached, the applicant's conduct in the course of the proceedings proved his disrespect to the organs of justice and disregard of the interest of the child. 27. The court dismissed O.'s request to divest the applicant of parental rights, considering that at that stage it was too early to adopt such a serious measure. 28. The applicant and O. appealed against that decision. 29. On 27 April 1998 the Warsaw Regional Court (sąd wojewódzki) dismissed the applicant's appeal against the enforcement order of 5 February 1998. 30. On 19 June 1998 the Białystok Regional Court amended the District Court's decision of 24 February 1998 in that it deprived the applicant of all parental rights in respect of P. It considered that he had abused his rights by making it impossible for the son to contact his mother, whereas the mother's care at that stage of the child's development was indispensable. The court further found that the applicant's continuing hiding was to the child's detriment, especially because he was apparently working and his son was taken care of by other people. It emphasised that the child had the right to decent life conditions, home and stability, of which the applicant had deprived him. The court further pointed out that the difficulties in enforcing court orders in the past could not justify the applicant's conduct and he should have availed himself of legal remedies. 31. On 8 August 1998 the police took P. away from the applicant. 32. On 17 August 1998 the applicant requested the District Court to prevent the issue of a passport for P., submitting that O. intended to abduct P. abroad. In reply, he was informed that until the date when the judgment of 19 June 1998 obtained legal force the passport would not be issued without the applicant's approval. 33. On 28 August and 23 September 1998 the applicant informed the Białystok District Court about instances of obstructing his contact with P. by O. and requested assistance in the enforcement of his access rights. 34. On 9 September 1998 the Białystok Regional Court dismissed the applicant's request for the appointment of a legal-aid lawyer for the purpose of lodging a cassation appeal and exemption from courts costs. The court found that he ran a business and in July 1997 his income had reached 700 Polish zlotys (PLN), whereas he would have to pay only a PLN 30 fee for his cassation appeal and the legal fees in a case like his would not exceed PLN 300. The court further noted that the applicant was single and owned a plot of land with a building under construction, as well as a car. On 6 October 1998 the Regional Court rejected the applicant's cassation appeal against that decision, as it was not provided for by law. On 16 December 1998 the Supreme Court rejected his appeal against the latter decision. 35. On 24 November 1998, in reply to the applicant's complaint, the Office of the Prime Minister requested the Białystok District Court to submit information and documents concerning the applicant's case, as it had certain doubts as to the decision to restrict his parental responsibility for P. 36. On 16 December 1998 the Head of the Family Department at the Białystok District Court informed the applicant that none of the court guardians had agreed to assist in the arrangements for his contact with P. 37. On 24 February 1999 the Ombudsman's office requested the Warsaw Regional Prosecutor to indicate the policemen who on 8 August 1998 had taken P. away from his father, as well as the person who had ordered it, in breach of the provisions of the Code of Civil Procedure. The applicant submits that no further measures were taken by the Ombudsman. 38. On 16 March 1999 the Białystok District Court dismissed the applicant's and O.'s petitions concerning his contact with his son. The court relied on the opinion prepared by two experts, according to which the relations between the child and parents were disturbed, and because of the child's age it was recommended that the meetings with the father would take place at the mother's home. The experts noted that P. would not want to leave his father. They pointed out that the need to maintain P.'s contacts with his father existed, but that the parents did not show understanding for the needs of the child and were driven by the wish to harm each other. 39. On 18 June 1999 the applicant filed with the Białystok Regional Court a petition in which he requested that O. be deprived of her parental rights and he be granted parental responsibility. Subsequently, he asked the court to issue an interim order to the effect that P.'s place of residence would be with the father. 40. In 2000 the applicant filed an unsuccessful request for the reopening of the proceedings terminated on 19 June 1998. 41. On 8 February 2001 the Białystok District Court refused the applicant's request for the enforcement of the part of the judgment given on 24 February 1998 concerning his contacts with his son. The court considered that the place of residence of O. and the son was unknown and therefore enforcement was impossible. 42. On 20 February 2001 the District Court dismissed the applicant's petition to deprive O. of parental responsibility for P. It noted that the applicant's submissions as to the allegedly improper manner in which the mother looked after P. were unsubstantiated. On the contrary, the experts were of the opinion that there were strong emotional bonds between her and P. The applicant appealed. 43. In her letter of 26 February 2001, written in reply to the applicant's complaint, the President of the Białystok Court of Appeal agreed with his contention that the proceedings were lengthy. 44. On 27 March 2001 the police authorities informed the applicant that O. with his son had left for London on 30 May 2000. 45. On 17 May 2001 the Białystok Regional Court quashed the District Court's decision of 8 February 2001. On 10 August 2001 the District Court, following the Regional Court's instructions, stayed the enforcement of the orders concerning contact between the applicant and his son because the applicant was unable to indicate O.'s place of residence. 46. On 27 September 2001 the Regional Court dismissed the applicant's appeal against the decision of the District Court. 47. The proceedings are stayed. 48. The Family and Custody Code (Kodeks Rodzinny i Opiekuńczy) provides: “In a decision on divorce, the court is competent to issue orders concerning the manner in which the care of the parties' minor children should be carried out (...). The court may grant custody right to one parent and limit the custody rights of the other one.” The Code of Civil Procedure (Kodeks Postępowania Cywilnego) provides: “The custody court can change its decision if the best interest of person whom it concerns so require. “ According to the Supreme Court's resolution, if a parent who has been obliged by a court decision to respect the other parents' 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. | 1 |
dev | 001-66824 | ENG | POL | CHAMBER | 2,004 | CASE OF SIKORA v. POLAND | 4 | Violation of Art. 6-1 with regard to the length of the proceedings;Inadmissible under Art. 6-1 with regard to the fairness of the proceedings;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | Nicolas Bratza | 4. The applicant was born in 1925 and lives in Praszka. 5. On 28 March 1991 the applicant lodged a motion with the Oleśno District Court, claiming a division of inheritance and dissolution of co-ownership of a certain property. 6. The court held hearings on: 15 May 1991, 28 August 1991, 29 January 1992, 10 April 1992, 18 May 1992, 24 August 1992, 30 September 1992, 23 February 1993, 7 June 1993 and 28 March 1994. 7. Having regard to the lack of progress in the proceedings, and apparently aiming at obtaining possession of the property by other legal means, on 13 April 1993 the applicant lodged a motion with the Oleśno District Court, claiming acquisitive prescription of half of the property in question. By a decision of 11 May 1994 the Oleśno District Court dismissed her motion. By a decision of 27 September 1994 the Częstochowa Regional Court dismissed her further appeal and upheld the contested decision. 8. Further hearings in the dissolution case were held on 3 June 1998, 30 December 1999, 29 March 2000 and 23 May 2000. 9. The court ordered a number of expert opinions. They were submitted to the court on: 22 December 1991, 3 July 1992, 8 September 1997, 12 May 1998, 16 June 1998, 9 December 1998, 9 February 1999, 16 April 1999, 11 May 1999, 8 October 1999 and 27 November 2000. 10. By a decision of 10 January 2001 the Oleśno District Court stayed the proceedings due to the fact that one of the parties to the proceedings had died. By virtue of the same decision the court resumed the proceedings, having regard to his heirs' request that the proceedings be resumed. 11. On 3 June 2003 the Oleśno District Court gave a judgment on the merits. 12. On 16 December 2003 the Opole Regional Court dismissed the applicant's appeal. 13. By a decision of 28 June 2004 the Supreme Court declined to examine the cassation appeal, considering that it had not been shown that arguable public interest grounds existed which would justify the examination of the appeal. | 1 |
dev | 001-86980 | ENG | GBR | CHAMBER | 2,008 | CASE OF KEHOE v. THE UNITED KINGDOM | 3 | No violation of Art. 6;No violation of Art. 13 | David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä | 6. The applicant married Mr K in 1983. They had four children. The marriage broke down and the applicant applied for divorce. Mr K left the marital home at the beginning of 1994. The children remained with the applicant who, in December 1993, had applied to the Child Support Agency (“the CSA”) to obtain financial support from their father for bringing up the children. There had been an oral agreement that he pay GBP 150 maintenance per week towards the support of the children. According to the applicant, some payments had been voluntarily made but they had rapidly ceased. She only had a limited income from a part-time evening job and child benefit and even when she obtained full-time secretarial employment in 1994 she was struggling financially. 7. The CSA did not send a Maintenance Enquiry Form (MEF) to Mr K until 25 May 1995, which resulted in the applicant losing the opportunity to receive maintenance for the period prior to that date. 8. On 13 July 1995 Mr K returned the MEF accepting paternity. Insufficient information was given to allow a full maintenance assessment to be made. An interim maintenance assessment (IMA) was issued with effect from 5 October 1995. 9. Mr K’s liability changed many times after that date, inter alia as his employment changed and it proved difficult to obtain information. 10. According to the summary in the later High Court judgment, the key features were as follows: 11. By March 1996 arrears of GBP 4,244 had accumulated. 12. The CSA negotiated an agreement with Mr K that he would pay under the IMA, GBP 124.33 per week plus GBP 25.67 towards arrears. 13. On 21 June 1996 a liability order was applied for because he had breached the agreement. The order was discontinued when regular payments were resumed. 14. On 1 February 1999 the Secretary of State issued an apology to the applicant for the inconvenience caused by the delay in issuing the MEF and paid her GBP 10,381.14, comprising the amount of child support she might have received up to that point if the MEF had been sent at the proper time, namely GBP 8,632.04 (inclusive of interest), and GBP 1,749.10 ex gratia compensation. 15. On 1 September 1999, the CSA issued a further apology about the service which she had received and made an additional "consolatory" compensation payment of GBP 110. 16. In December 1999 and April 2000, the CSA paid the arrears not yet received plus interest for the delay. 17. On 15 December 2000 a second application for a liability order was granted for GBP 6,329.24, covering arrears from May 1995 to 11 September 2000. Payments were not made and bailiffs were instructed to levy distress, but were unsuccessful. 18. On 31 January 2001 the liability order was registered as a county court debt. Consideration was given to a committal order but the policy was to use this only as a last resort. 19. On 9 October 2001 a deduction of earnings order (EO) was issued for GBP 608.80 per month, increased to GBP 889.06 on 21 February 2002. Following this Mr K again stopped paying. EOs on the company of which he was a director proved unsuccessful. In an interview with the CSA Mr K alleged that he had stopped paying as two of the qualifying children had been living with him for five years and a third had moved in recently, while the fourth had gone to live with the mother in Spain. The CSA was aware of the changed circumstances of the children and had taken this into account in assessments. Having established that the applicant was permanently resident in Spain the case was closed on 13 January 2003 with effect from 30 September 2002. Arrears remained due however and the CSA continued to seek to enforce them. 20. On 8 November 2002 a committal hearing was held. Mr K admitted owing GBP 6,329.24 for the period 25 May 1995 to 11 September 2000 and GBP 13,859.12 for the period 12 September 2000 until 4 September 2002. He agreed to pay the former sum by 8 July 2003 and the latter sum at GBP 500 per month from November 2002. 21. Payment was not made in November 2002. He was contacted on 10 December 2002 and told that unless payment was made by 13 December 2002 committal proceedings would be restored. A payment of GBP 1,500 was made on 30 December 2002. 22. The applicant brought proceedings under the Human Rights Act 1998 (HRA), seeking a declaration that the provisions of the Child Support Act 1991 were incompatible with Article 6 § 1 of the Convention as they denied a parent with care of children access to court in connection with disputes as to whether the absent parent had paid or ought to pay sums due under a maintenance assessment or as to the manner in which the obligations under the maintenance assessment should be enforced and seeking damages under section 7 of the HRA based on the CSA’s undue delay after 2 October 2000 in taking steps to enforce the child maintenance assessments obtained in this case. She maintained that she had expended much energy and suffered much stress in attempting to get the CSA to obtain payments for her and had been repeatedly told that the dispute was between the CSA and Mr K and did not involve herself; she believed that she would not have received a fraction of the money eventually paid if she had not continually pressurised the CSA and complained of their inaction and inability to obtain maintenance for her. 23. On 16 May 2003, Mr Justice Wall found that the applicant had a civil right to seek maintenance for her children from their father, such right being an autonomous substantive right, plainly recognised in English law and provided for by domestic legislation. The exclusion of the claimant from the enforcement process imposed a procedural bar on the prosecution/enforcement of the claim which engaged Article 6. He found that the court was given jurisdiction by the HRA such that if the CSA had acted in any way incompatible with the claimant’s Article 6 rights she could bring an action for damages under section 7, while any decision by the CSA not to enforce or any failure to enforce timeously or effectively would be subject to challenge by judicial review. On this basis the scheme under the 1991 Act was HRA compliant and she was not entitled to a declaration of incompatibility. He issued directions with a view to an eventual trial as to whether there had been undue delay and to determine any damages. This part of the order was stayed pending appeal to the Court of Appeal. 24. On 5 March 2004, the Court of Appeal upheld the Secretary of State’s appeal and dismissed the applicant’s cross-appeal. It held, as summarised in the head note: "that the Child Support Act 1991 introduced a new child support system, its self- contained nature being a critical feature of its effect in domestic law; that the scheme was built firmly on the central premise that the assessment, collection and enforcement of maintenance orders should be in the hands of the Child Support Agency and consequentially it redefined the rights and obligations of parents and those caring for children; that there was no justification for departing from the general principle that Article 6 was concerned only with disputes recognisable as such under domestic law and founded on the existence of an underlying right; that under the scheme the applicant had no legal right in domestic law to a child maintenance payment of any particular amount or at all; and that, accordingly, she was unable to assert that she had an arguable civil right under Article 6 which entitled her to a determination by a court.” 25. The Court of Appeal further held that the judge had erred in finding that she had a right to damages to supplement her limited right of judicial review; damages could only be awarded where the Act was incompatible with Article 6, and the Act did not become incompatible because of a lack of entitlement to damages for its incompatibility. 26. On 14 July 2005, the House of Lords, by a majority of four to one, rejected the applicant’s appeal. 27. Lord Bingham of Cornhill stated in rejecting the appeal: "[6] That a caring parent in the position of Mrs <K.> was given no right of recovering or enforcing a claim to child maintenance against an absent or non-resident parent was not a lacuna or inadvertent omission in the 1991 Act: it was the essence of the new scheme, a deliberate departure from the regime which had previously obtained. The merits of that scheme are not for the House in its judicial capacity to evaluate. But plainly the scheme did not lack a coherent rationale. The state has an interest, most directly in cases where public funds are disbursed, but also more generally that children should be adequately supported. It might well be thought that a single professional agency, with the resources of the state behind it and an array of powers at its command, would be more consistent in assessing and more effective and economical in enforcing payment than individual parents acting in a random and uncoordinated way. It might also be thought that the interposition of an independent, neutral, official body would reduce the acrimony which had all too frequently characterised applications for child maintenance by caring against absent or non-resident parents in the past which, however understandable in the aftermath of a fractured relationship, rarely enured to the benefit of the children. For better or worse, the process was deliberately changed. [7] The 1991 Act cannot in my opinion be interpreted as conferring any right on a parent in the position of Mrs <K>. She is of course the person to whom child maintenance will be paid, directly or indirectly and subject to any deduction of benefit, as the person who incurs the expense of bringing up the children. But the right which she had enjoyed under the former legislation was removed, and the right to recover the maintenance has been vested in the CSA..." 28. Baroness Hale of Richmond, dissenting, found that prior to the 1991 Act a father had, at common law, a duty to maintain his legitimate minor children which had always been unenforceable in the courts. However it had been expanded and reinforced by two kinds of statutory obligation: a private law obligation to make the payments ordered by a court under various statutes (e.g. matrimonial and family proceedings) and a public law obligation to reimburse the State for benefits paid for the children. The new scheme which transferred the task of assessing and collecting maintenance from the courts did not however remove these obligations or the corresponding right of the child to benefit from them. The obligation of a parent to maintain his children and the right of the children to have the benefit of the parental obligation to maintain them were not wholly contained in the 1991 Act. The 1991 Act left all previous law intact save precluding courts from using their powers in cases where the CSA was supposed to do it for them. Accordingly the children’s civil right to parental support survived the 1991 Act which acted not only as a limit to the extent of the obligation but also as a limit to its enforcement. Article 6 was therefore engaged. 29. In assessing whether the limitations on enforcement of those rights was compatible with the Convention, Baroness Hale noted that there was undoubtedly a legitimate aim. Although the non-enforceability by the custodial parent in non-benefit cases was not a necessary feature of comparable child support schemes elsewhere in the common law world, the matter had been debated. That possibility was rejected as the Government did not want to create one law for the rich and one for the poor. There were also cases where the parent with care was sometimes in receipt of benefits and at other times not. She concluded that this was just the sort of policy choice in a socio-economic field which the courts were usually prepared to leave to the judgment of Parliament, which was best able to make the decision as to which scheme would most effectively secure the recognition and enforcement of the children’s rights generally. It would be difficult to hold that the scheme as a whole was incompatible with the children’s rights to a speedy determination and enforcement of their claims. That said, she considered that the public authority charged by Parliament with securing those rights was under a duty to act compliantly with Article 6. She would therefore have allowed the appeal and restored Mr Justice Wall’s order. 30. Meanwhile, all money owed to the applicant was paid by 27 April 2005 and her case was closed. | 0 |
dev | 001-4748 | ENG | NLD | ADMISSIBILITY | 1,999 | VERDAM v. THE NETHERLANDS | 3 | Inadmissible | Elisabeth Palm;Gaukur Jörundsson | The applicant is a Dutch national, born in 1965 and currently serving a prison sentence in the Netherlands. He is represented before the Court by Ms E. Prakken, a lawyer practising in Amsterdam. On 24 December 1993 the applicant was arrested on suspicion of having raped three prostitutes (“Ms A”, “Ms B” and “Ms C”). In a statement made to police after this arrest, a fourth prostitute (“Ms D”) reported that she had also been raped. The applicant’s lawyer was notified by the police and, without having had the opportunity to discuss the matter with the applicant, attended Ms D’s making of this statement, at which occasion the lawyer was able to question Ms D. Ms B, Ms C and Ms D subsequently recognised the applicant as the man who had raped them from a series of photographs; in the case of Ms B and Ms D this identification took place in the presence of the applicant’s lawyer. A DNA-examination was carried out on sperm found in a swab taken from Ms B. According to the results of the examination it could not be excluded that the sperm was the applicant’s - the lowest possible degree of probability to be attached to such results. The applicant was convicted of attempted rape of Ms A and of rape of Ms B, Ms C and Ms D by the Regional Court (Arrondissementsrechtbank) of Amsterdam on 29 June 1994. He was sentenced to six years’ imprisonment. The applicant lodged an appeal with the Court of Appeal (Gerechtshof) of Amsterdam. He requested that Ms B, Ms C and Ms D be heard as witnesses by the Court of Appeal and the court granted this request. However, at the hearing on 21 December 1994 none of these witnesses appeared. It transpired that, although properly summoned, Ms B and Ms D did not have a known place of residence or abode (zonder bekende woon- of verblijfplaats). An address was known for Ms C but the summons had not been sent there. The Court of Appeal adjourned the proceedings in order for Ms B, Ms C and Ms D to be summoned again. At the hearing on 1 March 1995 the witnesses again failed to appear, although all three had been properly summoned. The proceedings were once more adjourned and the witnesses summoned again. This time, the Court of Appeal also issued an order to have Ms C brought before it. At the hearing on 28 April 1995 none of the witnesses appeared. A police officer told the Court of Appeal that none of the three witnesses had been seen at the local community centre for prostitutes (“huiskamerproject”) since 1 March 1995. Ms C had not been seen near the Central Station since December 1994. The police had let other prostitutes in that area know that they were looking for Ms C. An address was known for her but when police went there on the morning of the hearing she was not there. The officer had furthermore been told that Ms B had gone to Germany where she was said to be staying at a drug rehabilitation centre but her address in Germany was not known. Ms B was said not to want to have anything to do with the case anymore. Ms D, finally, could not be found and her address was not known. Hereupon the Court of Appeal decided to dispense with a further summoning of Ms B, Ms C and Ms D as in the circumstances it considered it unlikely that they would appear before it within an acceptable time. Before the Court of Appeal the applicant acknowledged that he had had intercourse with Ms A, saying that she had screamed and that he had not paid her, but he denied having raped her. He further denied the charges against him in relation to Ms B, Ms C and Ms D, submitting that he had been elsewhere when the alleged offences had supposedly been committed. Counsel for the applicant argued that in violation of Article 6 §§ 1 and 3 (d) of the Convention the defence had not had sufficient opportunity to test the statements of Ms B, Ms C and Ms D. Counsel further complained of the manner in which the collection of photographs from which Ms B, Ms C and Ms D had recognised the applicant had been compiled. Regardless of the fact that the witnesses had described the perpetrator as having long or shoulder-length hair, only two photographs in the collection shown to them had featured a person with such a hair style. Finally, counsel requested that the proceedings be adjourned so that a second DNA-examination could be carried out. By judgment of 12 May 1995 the Court of Appeal convicted the applicant of attempted rape of Ms A and of rape of Ms B, Ms C and Ms D, and sentenced him to six years’ imprisonment. The Court of Appeal found that the use in evidence of the statements made to the police by Ms B, Ms C and Ms D without the defence having been able to examine these witnesses was not contrary to Article 6 of the Convention. In this respect it took into account that considerable effort had been made to procure the appearance of the witnesses before the Court of Appeal, that a further summoning of those witnesses appeared to serve no useful purpose, that the statements made by the witnesses were supported by other evidence, and that, as regards Ms D, the applicant’s lawyer had been present both when she had been questioned and when she had identified the applicant from a photograph. In respect of the series of photographs shown to Ms B, Ms C and Ms D, the Court of Appeal referred to the testimony given by an expert witness according to whom a computerised system had been used to select photographs of persons of a similar appearance. The Court of Appeal also examined the photographs itself. It found that the fact that only two of the nine photographs featured men with long hair could not detract from its opinion that the collection had been compiled with the requisite care, since a hair style was only of relative importance in this respect. The Court of Appeal further noted that each witness had, separately and with certainty, recognised the applicant. The Court of Appeal further noted that the applicant had not disputed the findings of the DNA-examination, but that he had rather expressed the hope that a second such examination might exonerate him completely. However, as the Court of Appeal did not use the findings of this examination in evidence against him, it considered that to refuse a second examination would not be prejudicial to the applicant’s interests. The Court of Appeal based its conviction of the applicant of the rape of Ms B, Ms C and Ms D on the following means of evidence, in respect of the particular charge to which each of them related only: - the applicant’s statement before the Court of Appeal that he wore tattoos, that he used to drive a blue-grey Buick which was registered in the name of a Mr H, and that he had subsequently obtained a Chevrolet van; - Ms B’s statement to the police in which she related, inter alia, that the perpetrator had been driving a big, metallic-blue coloured American car, and in which she described him as having long blond hair, tattoos on both arms and wearing a number of chains; - Ms B’s recognition of the applicant as her assailant from nine photographs shown to her, at which occasion she stated, “That is Peter the rapist. He told me himself that he was called Peter”; - a procès verbal drawn up by a police officer to the effect that the applicant’s girlfriend had told this police officer that the applicant was generally known as ‘Peter’; - Ms C’s statement to the police in which she related, inter alia, that the perpetrator had been driving a big, silver-blue coloured American-style car and that he had pulled a chain around her neck. She further stated that the man had long blond hair worn in a pony tail and a tattoo on his upper arm; - a procès verbal drawn up by a police officer to the effect that the registration number of the car indicated by Ms C as the car driven by her assailant had proved incorrect; - a procès verbal drawn up by a police officer to the effect that Mr H used to have a Buick registered in his name with a registration number that differed one digit from the number indicated by Ms C; - Ms C’s recognition of the applicant as her assailant from a number of photographs shown to her; - Ms C’s confirmation that the chain featured on a photograph shown to her was of the kind that she had mentioned in her statement; - a procès verbal drawn up by two police officers to the effect that a silver-coloured chain had been found in the Chevrolet van which they had investigated in relation to the suspicion that a number of rapes had taken place inside the vehicle; - Ms D’s statement to the police in which she related, inter alia, that the perpetrator had been driving a large silver-grey car and that he had long hair; - Ms D’s recognition of the applicant as her assailant from nine photographs shown to her; - a procès verbal drawn up by a police officer to the effect that the owner of a breaker’s yard had recognised the applicant from a photograph shown to him as the man whom he had given a purple-blue Chevrolet in exchange for a metallic-grey Buick. The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad), raising the same arguments as he had before the Court of Appeal. In a judgment of 7 May 1996, the Supreme Court found that Article 6 of the Convention did not prevent the use in evidence of Ms C’s statement to the police despite the fact that counsel had not been able to question her as a witness. In this respect the Supreme Court did not find unreasonable the conclusion that further attempts to make Ms C appear before the Court of Appeal would serve no useful purpose. The Supreme Court noted, moreover, that counsel had taken no initiative to examine the police officers who had taken Ms C’s statement. It also considered that Ms C’s statement was corroborated by other means of evidence used in respect of this charge, in particular concerning the physical appearance of the applicant and the car he used. As regards the use in evidence of Ms D’s statement, the Supreme Court observed that counsel had attended Ms D’s interview with the police and that the applicant had thus had the opportunity to have this witness questioned on his behalf. The Supreme Court found no issue with the manner in which the Court of Appeal had rejected the complaint concerning the compilation of the series of photographs from which the applicant had been recognised. The Supreme Court quashed the judgment of the Court of Appeal in so far as it concerned the charge of rape of Ms B and the determination of the sentence. The Supreme Court held that a second DNA-examination could not be refused for the sole reason that the examination already carried out had been complete and that the results were not used in evidence. The Supreme Court referred this part of the case to the Court of Appeal of The Hague, which court was also to impose a sentence relating to the other offences of which the applicant had been found guilty. On 24 December 1996 the Court of Appeal of The Hague convicted the applicant of the rape of Ms B. It sentenced the applicant to six years’ imprisonment with deduction of the time spent in pre-trial detention. In these proceedings the applicant again complained of his not having been able to question Ms B. The applicant filed an appeal in cassation against the judgment of the Court of Appeal, which proceedings are currently still pending before the Supreme Court. | 0 |
dev | 001-95920 | ENG | HUN | CHAMBER | 2,009 | CASE OF KARSAI v. HUNGARY | 2 | Violation of Art. 10;Non-pecuniary damage - award | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria | 5. The applicant was born in 1950 and lives in Budapest. 6. The applicant is a historian and university professor. His main subject of research is the Second World War and, in particular, the extermination of Jews and Roma. He is the author of numerous publications on the subject. 7. In 2004 a heated public debate took place in Hungary as to whether a statue should be raised to commemorate Pál Teleki. In a wider context, the debate also concerned the question of Hungary’s failure to face up to its role in World War II and the Holocaust, as well as the attitude of Hungarians to this chapter of the country’s twentieth-century history – issues which had political implications, given that certain right-wing parties in the country identified their roots in the pre-World-War-II political system, of which Pál Teleki was an emblematic figure. 8. In that context the applicant publicly stated that Teleki had been one of the most reprehensible figures of Hungarian history, responsible for substantial anti-Semitic legislation as well as for dragging Hungary into World War II. 9. In issue no. 11/2004 of the weekly paper Élet és Irodalom, the applicant published an article on this subject, criticising the right-wing media, including a certain Mr B.T., for embellishing Teleki’s role and for making anti-Semitic statements in the process. The article presented examples of, and refuted, various misconceptions about Teleki’s political acts, endorsed by right-wing authors in order to diminish his responsibility for the persecution of Hungarian Jews, which, in the applicant’s view, amounted to “cautious Jew-bashing”. One of these examples reads as follows: “In B.T.’s charming words, two anti-Semitic laws ‘fell’ within Teleki’s two premierships. ... If we are counting, let us be accurate: not two, but 12 (twelve) anti-Semitic laws are linked to Teleki’s name. ...” The applicant also noted that: “... [I]t is rare that those supporting [the plan to erect a] statue of Teleki are trying to defend their position using overtly anti-Semitic arguments.” 10. Mr B.T. brought an action against the applicant before the Budapest Regional Court. He claimed that his reputation had been tarnished by another passage in the applicant’s article which read as follows: “In the Parliamentary Library’s PRESSDOC database there are hundreds of articles and studies praising Pál Teleki, written in a sometimes uninhibited, sometimes more moderate style. In 1994-95, the extremely anti-Semitic and irredentist Hunnia Brochures devoted a 15-episode series to the ex-PM. The amateur historian [B.T.] wrote several articles extolling the virtues of Pál Teleki – the devout Catholic, the enthusiastic Scout leader – who in his view was an anti-Nazi ‘Realpolitiker’. These articles and studies prompted very little reaction. There are very few of us who, at least from time to time, pick up the products of the right-wing or extreme right-wing press, which, perhaps encouraged by this [indifference], keeps lying, keeps slandering, keeps stirring feeling against and bashing the Jews (zsidóznak), in an increasingly uninhibited way.” 11. According to the plaintiff, the last sentence of the quotation could have been aimed at him and was prejudicial to his reputation. 12. On 1 June 2005 the Regional Court dismissed the action, holding in essence that the impugned sentence, especially the expression “bashing the Jews” did not concern the plaintiff himself but the right-wing and extreme right-wing media in general. 13. On 17 January 2006 the Budapest Court of Appeal reversed that decision on appeal and found for the plaintiff. Relying on sections 75, 78 and 84 of the Civil Code, it ordered the applicant to arrange for the publication of a rectification at his expense and to pay the legal costs, which amounted to 69,000 Hungarian forints (HUF). Assessing the applicant’s statements in the context of the whole article, the Court of Appeal held that the impugned expression could be seen as relating to the plaintiff personally and that the applicant had failed to prove that it was true. In the court’s opinion, to accuse the plaintiff, even contextually, of “Jew bashing” was a statement of fact that presented Mr B.T. in a false light and was thus capable of prejudicing his reputation. 14. On 28 June 2006 the Supreme Court upheld that decision, imposing another HUF 46,000 in legal fees. It reaffirmed that “the impugned statement – which was made, in general terms, with regard to the right-wing (extreme right-wing) press – could also be considered to concern the plaintiff”. | 1 |
dev | 001-110171 | ENG | POL | CHAMBER | 2,012 | CASE OF KAPERZYNSKI v. POLAND | 3 | Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva | 5. The applicant was born in 1964 and lives in Olsztyn. 6. At the material time the applicant was editor-in-chief of the local weekly newspaper “Iławski Tydzień”. 7. On 17 October 2005 the newspaper published an article coauthored by the applicant, entitled “Municipality in danger; authorities fail to see problem”. It described in detail the situation concerning the sewage system in the Iława municipality. The thrust of the article was that the sanitary situation in the municipality was a matter of concern and posed significant public health risks; extensive investments were necessary to improve it; there was a serious shortage of available funds; the municipal authorities were dealing with the problems in a slow and incompetent manner; it was more important for them to save money than to prevent serious health risks and to avert a danger to the population; the quality of water was unsatisfactory; and the mayor, despite the fact that he had been in office for two terms, had failed to deal with the problems properly. 8. In a letter to the newspaper of the same date the mayor of Iława complained about the article. The first paragraph of that letter was couched in ironic terms. The mayor expressed doubts about the applicant’s intentions and suggested that the applicant had been acting in his own personal interest. He maintained that the general tone of the article was inappropriate. He also voiced doubts as to whether the newspaper had any readers at all and whether it was therefore worth his while to react to the article. 9. He further requested, referring to section 31 § 1 read together with section 32 of the Press Act 1984, that the applicant publish a rectification (see paragraph 22 below). He stated that the development of the sewage network was a priority for the municipal authorities and listed a number of projects undertaken by the municipality during the preceding five years. Further, three projects planned for the years 2007-2013 were listed. The mayor stated that the quality of the water was monitored by the appropriate services and referred to several projects for modernising and overhauling the existing sewage and sanitary systems. 10. The applicant did not reply to this letter and did not publish it. 11. On an unspecified later date the municipality of Iława brought a private bill of indictment against the applicant before the Elbląg District Court for the offence of failure to publish a rectification or reply as prescribed by section 46 § 1 of the Press Act (see paragraph 24 below). 12. In his written pleadings of 4 December 2005 the applicant argued that the mayor’s letter could not reasonably be regarded as a request for rectification within the meaning of section 31 of the Press Act, because its content lacked the essential characteristics of a “rectification”. It was not related to the facts and it was not couched in objective terms, as stipulated by that provision. In fact, its first part, in particular, was very critical of the applicant and contained innuendos about his character, motives and about the newspaper and its journalists. This alone made it impossible to regard the letter as a request for rectification. Furthermore, the style of the letter lacked the objectivity which could be expected of a rectification. It could therefore not be reasonably seen as such. It resembled rather a “reply”, within the meaning of the same provision of the Press Act, expressing the value judgments and views of its author vis-à-vis the impugned article. Even assuming that the letter could be seen as a rectification, it did not comply with the relevant requirements laid down by section 33 of the Press Act as it was more than twice the length of the contested article. 13. The applicant further submitted that the letter could not be seen as a rectification request because it breached his personal rights and the rights of other journalists working for the “Tydzień Iławski”, by calling into doubt their professionalism and personal integrity. The applicant referred to section 33 of the Press Act, which obliged an editor-in-chief to refuse the publication of a rectification or a reply if its form or content were incompatible with the principles of co-existence with others (“zasady współżycia społecznego”). 14. On 13 December 2006 the Elbląg District Court found the applicant guilty of an offence punishable by section 46 § 1 of the Press Act in conjunction with its section 31 § 1. The court sentenced the applicant to four months’ restriction of liberty in the form of twenty hours’ community service per month and suspended the sentence for a period of two years. It further deprived him of the right to exercise the profession of journalist for a period of two years and ordered that the judgment be made public by being displayed at the Iława Municipal Office. 15. The court noted that the facts of the case, for the most part, were not disputed by the parties. It found that the applicant had not replied to the mayor’s letter and had not published that letter or excerpts thereof, either as a rectification or reply. It noted that he was clearly obliged to do so under the provisions of the Press Act. He was aware of his obligation as he had previously published rectifications in the newspaper. No objective grounds existed which could be said to have legitimately prevented the applicant from complying with that obligation and, in any event, he had not invoked any such grounds. It was the applicant’s own decision to refuse to publish the rectification requested. Similarly, he had failed to reply to the mayor, explaining to him the reasons for his refusal to publish. His failure corresponded to the offence specified in section 46 of the Press Act read together with section 31 of that Act. 16. The judgment further read: “The above assessment of the [applicant’s conduct] is additionally supported by the fact that in the impugned article he had discussed a question of significant importance for the municipality of Iława, namely the condition of its sewage system, by saying that the mayor had failed to take effective steps in order to have the sewage system installed. Assuming that the accused took into consideration the significance of his article, he should have, as a diligent journalist and editor-in-chief, either published the rectification demanded by the municipality, which directly concerned the questions raised in the article and outlined the steps which the municipality had already taken, or informed the municipality of the grounds for his refusal to publish a rectification.” 17. The court further held that the applicant’s failure to publish the mayor’s letter had been to the serious detriment of the Iława municipality as by making it impossible for a fair and public debate to develop it had undermined the confidence which a democratically elected municipal executive authority should enjoy. 18. The applicant appealed, essentially reiterating his arguments as submitted to the first-instance court. 19. On 29 March 2007 the Elbląg Regional Court upheld the contested judgment. 20. Article 54 of the Constitution provides: “1. Freedom to express opinions, and to acquire and disseminate information shall be ensured to everyone. 2. Preventive censorship of means of social communication and licensing of the press shall be prohibited.” Article 31 of the Constitution reads: “1. Freedom of the person shall receive legal protection. 2. Everyone shall respect the freedoms and rights of others. No one shall be compelled to do that which is not required by law. 3. Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.” Article 190 of the Constitution, regarding the effects of judgments of the Constitutional Court, provides, in so far as relevant: “1. Judgments of the Constitutional Court shall be universally binding and final. 2. Judgments of the Constitutional Court, ... shall be published without delay. 3. A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such a time-limit may not exceed eighteen months in relation to a statute or twelve months in relation to any other normative act. ... 4. A judgment of the Constitutional Court on non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... is given, shall be a basis for reopening the proceedings or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings.” 21. The relevant provisions concerning the correction of information in the press and other media are contained in the Press Act (Prawo prasowe) of 26 January 1984. Section 31 provides, in so far as relevant, as follows: “At the request of a natural or legal person or other organisational entity, the editorin-chief of the relevant daily or magazine is under an obligation to publish, free of charge: 1. a factually based (rzeczowe i odnoszące się do faktów) rectification of untrue or inaccurate statements, 2. a factually based (rzeczową) reply to any statement which might infringe someone’s personal rights” 22. Section 32 provides, in so far as relevant, as follows: “...Without the consent of the claimant, it is forbidden to shorten or make any other amendments to the correction or reply which would weaken its significance or alter the intentions of the author. The correction may not be commented upon in the same edition or broadcast ...” 23. Section 33 provides, in so far as relevant, as follows: “1. The editor-in-chief is under an obligation to refuse publication of the rectification or reply if: 1) it does not fulfil the requirements laid down in section 31 (...) 3. The editor-in-chief, when refusing to publish a rectification or reply, shall, without undue delay, send the claimant written notification of the refusal and the reasons for it. If the refusal is based on reasons referred to in subsection (1), the editorin-chief shall indicate those parts which cannot be published; the seven-day time-limit for producing an amended correction or reply starts running again from the day on which the refusal and its justification were delivered. The editor cannot refuse to publish a rectification or reply which has been amended in accordance with his or her indications.” 24. Section 46 provides for the following penal provision: “Whosoever, in breach of the statutory obligation, refuses to publish a rectification or reply, as referred to in section 31, or who publishes such a rectification or reply contrary to the conditions laid down in this Act, shall be subject to a fine or a restriction of liberty.” 25. In a judgment of 5 May 2004 the Constitutional Court (P 2/03) examined the constitutionality of the prohibition on making editorial comments on a request for rectification in the same issue of a newspaper in which the rectification was published, which was at that time provided for by section 32 § 6 of the Press Act 1984 and backed up by a criminal sanction provided for by section 46 § 1 of that Act. 26. In the light of section 32 § 6 of the 1984 Act, the prohibition on publishing comments on requests for rectifications was not absolute, since it was permissible to include such comments in the next issue or broadcast. That prohibition was necessary to protect the freedom of expression of the person having submitted the request for rectification. The challenged provisions of the Press Act made it possible to maintain a balance of power between the media and persons submitting requests for rectifications to be published, with the latter generally having more limited opportunity to publicly express their views. 27. The court further noted that the practical application of section 46 had given rise to serious difficulties in judicial practice; the Press Act did not formulate any conditions concerning either the form or the substance that would allow for a clear categorisation of a given request submitted to an editor-in-chief as a “rectification” or a “reply”. Hence, editors could have – and in practice did have – serious problems in classifying such submissions. Since it was impossible to provide an unambiguous interpretation of the relevant criminal law norm and no uniform interpretation had been developed in practice, the challenged provision (that is, section 32 § 6 of the Press Act) failed to respect the principle nullum crimen sine lege, enshrined in Article 46 of the Constitution. As a result, the prohibition on commenting on a rectification in the same issue, hitherto based on that provision, was deprived of its criminal sanction. The remaining elements of the criminal law provision contained in section 46 § 1 of the Press Act retained their binding force. 28. The court further observed that the prohibition expressed in section 32 § 6 of the Press Act should be secured by an adequately effective sanction, independently of civil liability. It should take into account the principle of proportionality and assume, on the one hand, the protection of the interests of those harmed by press publications and, on the other hand, values linked to the freedom of expression. 29. On 1 December 2010 the Constitutional Court held that section 46 § 1, sections 31 and 32 § 1 of the Press Act were incompatible with Article 46 of the Constitution. It reiterated its findings concerning the lack of precision in the manner in which criminal offences punishable under those provisions were defined. It further held that as a result of the judgment those provisions were to lose their binding force no later than eighteen months after the judgment was officially published. Until that time, they should be applied by the courts. 30. Article 23 of the Civil Code contains a non-exhaustive list of rights known as “personal rights” (dobra osobiste). This provision states: “The personal rights of an individual, such as, in particular, health, liberty, reputation (cześć), freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements shall be protected by the civil law regardless of the protection laid down in other legal provisions.” 31. Article 24 of the Civil Code provides for ways of redressing infringements of personal rights. In accordance with that provision, a person facing the threat of an infringement may demand that the prospective perpetrator refrain from the wrongful activity, unless it is not unlawful. Where an infringement has taken place, the person affected may, inter alia, request that the wrongdoer make a relevant statement in an appropriate form, or claim just satisfaction from him or her. If an infringement of a personal right causes financial loss, the person concerned may seek damages. 32. Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads: “The court may grant an adequate sum as pecuniary compensation for non-material damage (krzywda) caused to anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...” | 1 |
dev | 001-96208 | ENG | POL | ADMISSIBILITY | 2,009 | PACIEJ v. POLAND | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | The applicant, Mr Stefan Paciej, is a Polish national who was born in 1927 and lives in Lubań. 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 4 December 2000 the applicant applied to the Polish-German Reconciliation Foundation (“the Foundation”) for payment of a benefit on account of his deportation and forced labour during the Second World War. He submitted that from April 1942 to December 1943 he had been a forced labourer on a farm in Gerlachshain. In December 1943 he had been relocated to Königstein (near Dresden) where he had been required to work as a forced labourer for the company Grün&Bilfinger AG. He alleged that in Königstein he had been imprisoned in a penal camp (obóz karny). The applicant’s request was made under the scheme for slave and forced labourers (“the second compensation scheme”) established under the Joint Statement of 17 July 2000, the German Law of 2 August 2000 on the Creation of the “Remembrance, Responsibility and Future” Foundation (“the German Foundation Act; GFA”) and the subsequent Agreement of 16 February 2001 between the Remembrance, Responsibility and Future Foundation (“the German Foundation”) and the Polish-German Reconciliation Foundation. On 11 September 2001 the Foundation’s Verification Commission found that the applicant was eligible for payment of a benefit, his persecution falling under the 4th category which included persons who had been deported to Germany and subjected to forced labour in agriculture. On 1 October 2001 the applicant appealed against the decision of 11 September 2001. He claimed that he had performed forced labour both in agriculture and later during his internment in the penal camp, and that the Verification Commission had failed to grant him compensation on account of the latter persecution. He submitted that by doing so the Foundation breached the relevant rules which required it to grant benefit to a claimant on account of a more favourable category of eligibility. The applicant produced three items of documentary evidence in support of his claims: a/ a statement by a daughter of a German farmer where he used to work that in December 1943 he had been transported to a camp; b/ a certificate of work for the company Grün&Bilfinger AG which attested, according to the applicant, that he had been interned in a camp; c/ a certificate issued by the Polish Red Cross in June 1945 that the applicant had returned from a camp in Dresden. On 18 April 2002 the Appeal Commission changed the decision of 11 September 2001. It held that the applicant’s persecution came under the 3rd category of eligibility, i.e. persons who had been deported to Germany and subjected to forced labour in industry. Consequently, the applicant was awarded DEM 4,000. The Appeal Commission informed the applicant that his request for consideration of his internment in the penal camp as falling under the 2nd category of eligibility could not be granted. It stated that the only persons who came under the 2nd category of eligibility were the detainees of those camps which were included on the list approved by the German Foundation. However, the applicant’s camp was not included on that list. On 17 July 2002 the applicant appealed against the latter decision. He contested the fact that the Appeal Commission had not taken into account his forced labour during his internment in the penal camp. On 27 September 2002 the Appeal Commission informed the applicant that his appeal could not be allowed. As regards the applicant’s submissions to the effect that his internment in a labour camp (obóz pracy) should have been classified as persecution falling under the 2nd category of persecution, it referred to its findings in the decision of 18 April 2002. The applicant was further informed that his certificate of work (Arbeitsleistungsbescheinigung) attested that he had worked for the company Grün&Bilfinger AG, but did not confirm that he had been detained in a penal camp. The Government submitted that the applicant had been subjected to forced labour for the Grün&Bilfinger AG company in Königstein and had stayed in a camp for forced labourers. However, that camp had not been a penal camp and did not appear on the list of “other places of confinement” adopted by the German Foundation. From 1998 to 2000 international negotiations took place on the issue of compensation for persons subjected to slave or forced labour by Nazi Germany. The government of Poland was one of the parties to these negotiations. They were prompted by a number of lawsuits against certain German companies before the courts in the United States in which compensation was sought on account of forced labour during the Second World War. The German companies against which the lawsuits had been brought wished to bring them to an end and secure legal peace. The negotiations concluded on 17 July 2000 with the adoption of a Joint Statement which was signed by all the parties to the negotiations, including the government of Poland. The parties to the Joint Statement acknowledged the intention of the Government of Germany and of the German companies concerned to accept moral and historic responsibility arising from the use of slave and forced labourers and from other injustices committed during the National Socialist era and the Second World War. They affirmed their consensus of 17 December 1999 on the establishment of the Remembrance, Responsibility and Future Foundation, which was to be a means of providing funds for victims from central and eastern Europe, most of whom had benefited little from prior German compensation and restitution programmes. The parties to the Joint Statement further agreed to base their decisions regarding the distribution of funds on the eligibility criteria set out in the German Foundation Act. According to the Joint Statement, the Government of Germany and the German companies concerned undertook to contribute DEM 5 thousand million to the Remembrance, Responsibility and Future Foundation. The Joint Statement stipulated that the governments of the participating central and eastern European States, including Poland, and the government of Israel agreed to implement the necessary specific measures within the framework of their national legal systems to achieve legal peace. Subsequently, on 2 August 2000 the German parliament enacted the Law on the creation of the Remembrance, Responsibility and Future Foundation (Gesetz zur Errichtung einer Stiftung “Erinnerung, Verantwortung und Zukunft”). It came into force on 12 August 2000. However, the disbursement of payments only started on 30 May 2001, once the relevant guarantees had been secured by the German companies concerned with regard to the dismissal of the lawsuits filed against them in the United States courts. The disbursement of payments terminated at the end of 2006. The relevant parts of the Law on the creation of the Remembrance, Responsibility and Future Foundation provide: Recognising that the National Socialist State inflicted severe injustice on slave labourers and forced labourers, through deportation, internment and exploitation, which in some cases extended to destruction through labour, and through a large number of other human-rights violations, that German companies which participated in the National Socialist injustice bear a historic responsibility and must accept it, that the companies which have come together in the Foundation Initiative of German Industry [Stiftungsinitiative der deutschen Wirtschaft] have acknowledged this responsibility, that the injustice committed and the human suffering it caused cannot be truly compensated by financial payments, that the Law comes too late for those who lost their lives as victims of the National Socialist regime or have died in the meantime, the German Bundestag acknowledges political and moral responsibility for the victims of National Socialism. The Bundestag also intends to keep alive the memory of the injustice inflicted on the victims for coming generations. (...) (1) A legally recognised Foundation with the name ‘Remembrance, Responsibility and Future’ shall be established under public law. (...) (1) The purpose of the Foundation is to make financial compensation available through partner organisations to former forced labourers and to those affected by other injustices from the National Socialist period. (...) (1) The approval and disbursement of one-off payments to those persons eligible under section 11 will be carried out through partner organisations. The Foundation is neither authorised nor obligated in this regard. The board of trustees may opt for another mode of payment. (...) (1) Eligible under this Law are: 1. persons who were held in a concentration camp as defined in section 42(2) of the German Indemnification Act [Bundesentschädigungsgesetz] or in another place of confinement outside the territory of what is now the Republic of Austria or a ghetto under comparable conditions and were subjected to forced labour; 2. persons who were deported from their homelands into the territory of the German Reich within the borders of 1937 or to a German-occupied area, subjected to forced labour in a commercial enterprise or for public authorities there, and held under conditions other than those mentioned in paragraph 1, or were subjected to conditions resembling imprisonment or similar extremely harsh living conditions; (...) (2) Eligibility shall be demonstrated by the applicant by submission of documentation. The partner organisation shall take into account relevant evidence. If no relevant evidence is available, the claimant’s eligibility may be substantiated in some other way. (1) Specific characteristics of other places of confinement referred to in Section 11, Paragraph 1, Number 1 are inhumane conditions of detention, insufficient nutrition and lack of medical care. (...)” Section 42 § 2 of the German Indemnification Act (Bundesentschädigungsgesetz) provided that the German Government would issue a decree containing a list of concentration camps within the meaning of the Act. The German Government issued the decree in 1967 with an annex listing concentration camps. It was twice amended, most recently in 1982. The German Foundation adopted the list of “other places of confinement” which contained, inter alia, penal camps. Persons detained in one of the camps included on the list were considered to come under the 2nd category of eligibility. The list was binding on all partner organisations, including the Polish Foundation. On 10 August 2000 the Polish government submitted to Parliament a bill on the exemption from tax and duties of payments received in connection with Nazi persecution. In the explanatory memorandum to the bill, the government stated that payment of benefits in respect of forced labour for the Nazi regime had been agreed in the course of negotiations involving the respective governments, German companies and the victims. They further stated that, as a result of the agreement with the Germans, Poland would receive more than DEM 1.8 thousand million. On 21 September 2000 the Polish parliament enacted the Law on exemption of payments received in connection with Nazi persecution from tax and duties. That Law also exempted the Polish-German Reconciliation Foundation from taxes due on funds received by the Foundation for the distribution of payments. The Law came into force on 17 November 2000. On 16 February 2001 an agreement was concluded between the Remembrance, Responsibility and Future Foundation and the PolishGerman Reconciliation Foundation (“the partnership agreement”). Under its terms the PolishGerman Reconciliation Foundation was to act as a partner organisation of the German Foundation, with a view to securing prompt disbursement of compensation payments to slave and forced labourers (paragraph 1 of the agreement). Both parties agreed to implement fully the provisions of the GFA and declared that their agreement was in compliance with the Joint Statement of 17 July 2000. The above agreement further stipulated that the Polish Foundation, as a partner organisation, was entrusted with determining eligibility for compensation payments in respect of all claimants who resided on the territory of Poland on 16 February 1999 (paragraph 2). The partner organisation was to verify and determine whether the relevant conditions for awarding payment had been established or substantiated in some other way (paragraph 5.1). A claimant could appeal against a decision taken by the partner organisation in respect of the grounds of the decision or the amount of compensation awarded before an independent appeal body established within the partner organisation (paragraph 5.5). Under paragraph 6.3 of the agreement, decisions taken by the appeal body were final and could not be challenged before a court (paragraph 3). The Agreement of 16 February 2001 was accompanied by three annexes. Annex no. 3 contained a declaration by the Polish government with regard to responsibility for the disbursement of compensation payments. The relevant parts provide: “Since 1998 the government of the Republic of Poland has made exceptionally concerted efforts to secure payment of compensation for slave and forced labour imposed by Nazi Germany. In the negotiations, the government has played a significant role on behalf of the representatives of the victims. Due to the government’s efforts, former slave and forced labourers will receive in total DEM 1.812 thousand million, which constitutes a very positive outcome to the negotiations. The government of the Republic of Poland will endeavour to ensure that the payments from the Remembrance, Responsibility and Future Foundation, handled by the Polish-German Reconciliation Foundation with the participation of Polish financial institutions, will be processed properly. To that end the Polish authorities will take steps with regard to the Polish-German Reconciliation Foundation within their founding and supervisory competences.” The statutes of the Polish-German Reconciliation Foundation were amended on the initiative of its founder, namely the Minister of the State Treasury, with a view to implementing the provisions of the GFA and the Agreement of 16 February 2001; those amendments were subsequently registered by the Warsaw District Court on 26 June 2001. The amended statutes stipulated that the Foundation was to disburse compensation payments to the victims specified in section 11 of the GFA from the funds contributed by the German Foundation on the basis of the same Act (paragraphs 6.2 and 9.2). It further specified that the Foundation’s decisions in individual cases were to be taken on the basis of internal regulations. A decision in an individual case could be appealed against; however, a decision taken after an appeal had been considered was final and no appeal lay against it (paragraphs 6.4 and 6.5). Pursuant to paragraph 20 of the amended statutes, the Verification Commission was to determine individual claims for assistance filed by victims of Nazi persecution. Decisions taken by the Verification Commission could be appealed against to the Appeal Commission. In 1997 the Ombudsman referred to the Supreme Court a question of law (pytanie prawne), as to whether decisions given by the organs of the Foundation could be appealed to the Supreme Administrative Court and, if not, whether they could be subjected to judicial review in civil proceedings. On 31 March 1998 the Supreme Court adopted resolution no. III ZP 44/97, holding that, since administrative functions could only be delegated by statute, which was not the case with regard to the Polish-German Reconciliation Foundation, its decisions did not meet the requirements of an administrative decision and thus could not be appealed to the Supreme Administrative Court. However, the Supreme Court refused to give a definite answer as to whether the Foundation’s decisions could be subject to judicial review in civil proceedings. It nevertheless observed that entitlement to receive a benefit from the Foundation did not fall within the scope of civil law, and thus could not be raised before a civil court. In exceptional cases, such as where the claimant’s eligibility had been established but the benefit was not paid, a claim could arise under civil law. In Resolution no. OPS 3/01 of 3 December 2001, the Supreme Administrative Court upheld the earlier case-law to the effect that it did not have jurisdiction to review the decisions of the Foundation and observed that: “The Polish-German Reconciliation Foundation, which awards benefits to the victims of Nazi persecutions using the financial resources allocated to it by foreign entities, does not perform functions in the area of public administration. Thus, the source of the entitlement to receive an award from the Foundation does not stem from actions of the public administration.” It further observed: “There is no doubt that the Agreement of 16 October 1991, concluded between the Polish and German Governments, which was not ratified, as well as subsequent acts [starting with the Joint Statement and the German Foundation Act] concerning grants of financial assistance by the Foundation on account of Nazi persecution do not fulfil the criteria which would make it possible to classify them as sources of binding Polish law. No administrative-law relation arises between a claimant and the Foundation on the basis of the aforementioned acts, and consequently the Foundation is not an organ of public administration established by law to determine cases in the sphere of public administration.” On 27 June 2007 the Supreme Court adopted Resolution no. III CZP 152/06 in response to a question of law put forward by the Ombudsman. It revisited its earlier case-law on the interpretation of the notion of a “civil case” laid out in Article 2 of the Code of the Civil Procedure in relation to claims against the Foundation. The Supreme Court held that: “The [civil] courts have jurisdiction in the case where a claimant – due to an unfavourable decision by the “Polish-German Reconciliation” Foundation – is seeking a payment [from the Foundation] in respect of Nazi persecution.” In the reasons for its Resolution the Supreme Court found, inter alia, that: “The procedure concerning examination of claims under the first and the second German fund ... may not be currently instituted. The relevant funds were allocated and the disbursement of payments has been finally concluded. (...) There is no doubt that the current state of affairs resulting from the relevant case-law, under which those persons interested in challenging before a court the Foundation’s refusal to grant them a suitable payment are deprived of such a possibility, cannot be accepted in the light of the binding constitutional and Convention standards. Article 184 § 1 in conjunction with Article 177 of the Constitution establishes a presumption in favour of jurisdiction of the ordinary courts which indicates – at least indirectly – that a possible jurisdiction of the administrative courts should be based on a specific statutory rule. (...) The need for extensive interpretation of the individual’s access to a court, or in other words, the right to bring an action (the right to a court) follows also from Article 6 § 1 of the Convention and Article 14 § 1 of the International Covenant on Civil and Political Rights, which stipulate that everyone is entitled to a fair and public hearing by an independent and impartial tribunal established by law in the determination of his civil rights and obligations. It may be assumed from the established case-law of the European Court of Human Rights that Article 6 § 1 of the Convention guarantees to everyone the inalienable right to submit for a judicial determination any claims concerning civil rights and obligations.... Obviously, the right to a court does not denote the right to “win” a case, but it signifies that the filed claim should be examined by a court and determined on the merits (judgment of the Supreme Court of 3 January 2007, no. IV CSK 312/06, unpublished). The results of interpretation of Articles 1 and 2 of the Code of Civil Procedure thus require us to acknowledge that the [civil] court has jurisdiction where a case has the features of a civil case in the substantive sense and where no particular provision delegates its examination and determination to a different organ than an ordinary court. The [civil] court also has jurisdiction where a case has the features of a civil case only in the formal sense.” | 0 |
dev | 001-72823 | ENG | POL | ADMISSIBILITY | 2,006 | DOBROWOLSKI v. POLAND | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Krzysztof Dobrowolski, is a Polish national, who was born in 1974. He was represented before the Court by Mr Ł. Jura, a lawyer practising in Warsaw. The respondent Government were represented by Mr J. Wołąsiewicz, of the Ministry of the Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 18 April 2001 the Śrem District Court (Sąd Rejonowy) convicted the applicant of dealing in stolen goods and sentenced him to a sixteenmonth prison term. The applicant filed an appeal to the Poznań Regional Court (Sąd Okręgowy) in which he complained about the severity of the sentence. On 20 November 2001 the Regional Court informed the applicant that a legal aid counsel had been appointed for him and that an appeal hearing would take place on 30 November 2001. However, counsel never contacted the applicant. The applicant, who was serving a prison sentence in another case, asked that he be brought before the appellate court but his request was refused. On 30 November 2001, after a hearing at which the prosecutor and the applicant’s counsel, but not the applicant, were present, the Regional Court dismissed the applicant’s appeal. On 9 December 2001 the applicant asked the Court to serve him with a copy of the reasoned judgment with the purpose of lodging a cassation appeal with the Supreme Court. On 10 January 2002 the court served him the reasoned judgment. The applicant failed to lodge a cassation appeal within the time-limit and on 20 February 2002 the President of the Fourth Chamber of the Poznań Regional Court declared that the judgment was final. Under Article 519 of the 1997 Code of the Criminal Procedure, which entered into force on 1 September 1998, a party to criminal proceedings may lodge a cassation appeal with the Supreme Court against a final judgment of an appellate court which has terminated the criminal proceedings. Article 523 §1 of the 1997 Code provides, in so far as relevant: “A cassation appeal may be lodged only on the grounds referred to in Article 439 [these include a number of procedural irregularities, such as, for instance, incorrect composition of the trial court; lack of legal assistance in cases where such assistance was compulsory; breach of rules governing jurisdiction in criminal matters; trying a person in absentia where his presence was obligatory etc.] or on the ground of another flagrant breach of law provided that it could significantly affect the substance of the ruling in question. No cassation appeal may be directed against the severity of the penalty imposed.” A cassation appeal must be lodged within 30 days from the date of notification of the reasoned judgment of the appellate court (Article 524 of the 1997 Code). Pursuant to Article 451: The appellate court shall order an accused, who is detained, to be brought to the appellate hearing, unless it finds that the presence of his lawyer is sufficient. If the court decides not to bring to the hearing an accused who has no defence counsel, it shall appoint for him ex officio a legal aid lawyer. The Supreme Court has examined in numerous judgments cassation appeals based on the allegation that the absence of an accused at the appeal hearing was a flagrant breach of law that could significantly affect the substance of the ruling in question, within the meaning of Article 523 of the Code of Criminal Procedure. The Supreme Court on many occasions found that the refusal to bring the accused to the appeal hearing, although not in violation of the Code of Criminal Proceedings in force, constituted a breach of Article 6 §§ 1 and 3 (c) of the Convention read in conjunction with Article 91 § 2 of the Constitution of the Republic of Poland. In such cases, the Supreme Court quashed the appeal judgment and remitted the case (judgment of 10 August 2000, III KKN 192/00, judgment of 5 June 2001, III KKN 28/01). The resolution of 7 judges of the Supreme Court of 18 October 2001 (IKZP 25 /01) dealt with the Ombudsman’s request for clarification of issues relating to the presence of the accused at the appeal hearing in the light of Article 6 of the Convention and the Polish Code of the Criminal Procedure. The Supreme Court, inter alia, stated: “...Finally, it should be underlined, that even if the accused requests to be brought to the appeal hearing, the court may establish that the presence of the lawyer at the appeal hearing would be sufficient. If the accused does not have a counsel, it is necessary to appoint for him a legal aid lawyer whose presence at the hearing would be obligatory. It should however be noted that if an accused deprived of liberty requests to be brought to the appeal hearing, granting such request should be a rule... Finding that the presence of the lawyer would be sufficient could occur in particular if the appeal hearing concerned only questions of law.” | 0 |
dev | 001-61760 | ENG | FRA | CHAMBER | 2,004 | CASE OF ÉDITIONS PLON v. FRANCE | 1 | No violation of Art. 10 with regard to the interim injunction;Violation of Art. 10 with regard to the permanent injunction;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic proceedings;Costs and expenses award - Convention proceedings | null | 6. On 8 November 1995 the applicant company acquired the publishing rights for a book entitled Le Grand Secret (“The Big Secret”) from a Mr Gonod, a journalist, and a Dr Gubler, who had been private physician to President Mitterrand for several years. The book gave an account of the relations between Dr Gubler and the President, describing how the former had organised a medical team to take care of the latter, who had been diagnosed with cancer in 1981, a few months after he had first been elected President of France. It recounted in particular the difficulties Dr Gubler had encountered in concealing the illness, given that President Mitterrand had undertaken to issue a health bulletin every six months. The book was due to be published in mid-January 1996, while President Mitterrand was still alive. However, following the President's death on 8 January 1996, the authors and Editions Plon decided to postpone its publication. 7. On 10 January 1996 the daily newspaper Le Monde published an article which revealed that President Mitterrand had been suffering from prostate cancer since the beginning of his first seven-year term of office and pointed out that the public had not been officially informed about his illness until 1992. The article also stated that President Mitterrand had dismissed Dr Gubler in 1994, choosing instead to be treated with medicine described by the applicant company as “alternative”. Those revelations were the subject of extensive comment in the media. Questions were asked, in particular, about the quality of the treatment received by President Mitterrand. A former cultural adviser to President Mitterrand had already claimed in a book entitled L'Année des adieux, published by Flammarion in June 1995, that the President had not received proper treatment. In addition, shortly after the President's death, one of his brothers made similar allegations. The head of the cancer treatment department at the Pitié-Salpêtrière Hospital did likewise, in particular asserting on the radio station Europe 1 that “for years [President Mitterrand had been] given nothing but magical cures, and these techniques were completely ineffective in treating his illness”. On 12 January 1996, however, Le Monde published a statement by the President of the National Council of the ordre des médecins (Medical Association) to the effect that “according to the information in [his] possession, the President [had] received perfectly appropriate treatment”. Furthermore, on 11 January 1996 the President's widow and children had issued a statement emphasising that they maintained their trust in the medical team that had looked after him. 8. As Dr Gubler considered that his reputation had been called into question, it was decided to publish Le Grand Secret on 17 January 1996. The following text appeared on the back cover: “On 10 May 1981 François Mitterrand was elected President of France. On 16 November 1981, six months later, medical examinations revealed that the head of State was suffering from cancer. Statistically, he had between three months and three years to live. A handful of doctors resolved to fight the illness, driven by the obsession to save the President and to obey his instruction that the French public should know nothing about the matter. It became a State secret. Only Claude Gubler, private physician to François Mitterrand during his two terms of office, could have provided us with the astonishing account of how the President cheated death for years, taking each day at a time. These revelations will transform our image of a man who led France for fourteen years.” 9. On an urgent application lodged on 17 January 1996 by President Mitterrand's widow and children, who complained of a breach of medical confidentiality, an invasion of President Mitterrand's privacy and injury to his relatives' feelings, the President of the Paris tribunal de grande instance issued an injunction on 18 January 1996 prohibiting the applicant company and Dr Gubler from continuing to distribute Le Grand Secret, on penalty of 1,000 French francs (FRF) per book distributed, and instructed a bailiff “to procure all documents containing details of the print run and the number of copies in circulation”. The urgent-applications judge based her decision on the following grounds: “All people, regardless of their rank, birth or function, have the right to respect for their private life. This protection extends to their relatives where the relatives are justified in asserting their right to respect for their own private [and] family life. What is in issue in the instant case are disclosures by President François Mitterrand's private physician, who treated and attended to him for more than thirteen years and in whom the patient and his family placed their trust. ... They were made in breach of provisions that lay down a duty of professional confidentiality, all the more strictly where medical confidentiality is concerned, and the person who made them may be liable to the penalties provided for in Article 22613 of the Criminal Code. By their very nature, they constitute a particularly serious intrusion into the intimate sphere of President François Mitterrand's private family life and that of his wife and children. The resulting interference is especially intolerable in that it has occurred within a few days of President Mitterrand's death and burial. Since this is a case of blatant abuse of freedom of expression resulting in a manifestly unlawful infringement of the claimants' rights, it is within the power of the urgent-applications judge to order measures capable of putting an end to the infringement or limiting its scope.” 10. In a judgment of 13 March 1996, the Paris Court of Appeal upheld the injunction and gave the claimants one month to apply to a court with jurisdiction to examine the merits of the case, indicating that if such an application was made, the injunction and penalty for non-compliance would remain in force until a ruling was given on the merits, but that if no such application was made, those measures would cease to have effect on the expiry of the one-month period. The judgment began by noting the definition of medical confidentiality in Article 4 of the Code of Conduct for Medical Practitioners, and emphasised that “the death of the patient does not release a medical practitioner from the duty of confidentiality”. It went on to quote the text on the back cover and identified some twenty disclosures made in the book, together with page references, about facts “of which Mr Gubler had become aware in the performance of his professional duties as physician to François Mitterrand” and which “as such ... [were] manifestly covered by the rules of medical confidentiality”. The judgment stated: “... ... the disclosure, through publication of the book Le Grand Secret, of facts covered by the duty of medical confidentiality by which the co-author of the book is bound is manifestly unlawful. The innermost feelings of Mrs Mitterrand and of François Mitterrand's children have been offended by this public disclosure of information pertaining both to the character and private life of their husband and father and to their own sphere of intimacy by the private physician to the late French President, in whom the latter had placed his trust, under the protection of a lawfully established duty of professional confidence of which all medical practitioners are solemnly reminded when the Hippocratic oath is read out on their admission to the profession. ... ... prohibition of the distribution of a book can only be an exceptional measure. However, in view of the space they occupy, the above passages from Le Grand Secret, which disclose facts covered by the duty of medical confidentiality by which the co-author of the book is bound, cannot be separated from the rest of the book without depriving it of its fundamental content and thereby disfiguring it. Accordingly, the decision by the first-instance judge to prohibit the [applicant] company and Mr Gubler from continuing to distribute the book Le Grand Secret was based on a precise assessment of the interim measure likely to put an end to the manifestly unlawful infringement resulting from such disclosures. ... Although the first edition of the book in question was marketed before the date of the injunction appealed against, and although information published in the book has been divulged by various media since the injunction was issued, the ensuing circumstances are not capable of putting an end to the manifestly unlawful infringement that would necessarily result from resumed distribution of the book. Consequently, the injunction issued by the first-instance judge should remain in force. However, the necessarily temporary nature of such a measure dictates that its validity should be limited in time by such means as to afford the parties an opportunity to submit argument in the dispute between them, within a reasonable time, before a court with jurisdiction to examine the merits of the case. To that end, the respondents should be given one month, from the date of delivery of this judgment, to bring their dispute before such a court. It should further be specified that if an application for an examination of the merits is made within this period, the injunction will remain in force, unless the court in question rules otherwise, until the delivery of its decision, but that if no such application is made within this period, the injunction will immediately cease to have effect.” 11. In a judgment of 16 July 1997, the Court of Cassation dismissed appeals on points of law by the applicant company and Dr Gubler against the judgment of 13 March 1996. The Court of Cassation considered that the Court of Appeal had established the existence of a manifestly unlawful infringement by holding that disclosures made in the book about the development of François Mitterrand's condition had been in breach of medical confidentiality, and that it had been exclusively within the Court of Appeal's jurisdiction to rule that the injunction prohibiting the continued distribution of the book, as an interim measure valid for a limited period only, was the only means of putting an end to the infringement pending a decision on the merits. 12. In the meantime, on 19 April 1996, the Paris public prosecutor had summoned Dr Gubler to appear in the Paris Criminal Court on a charge of breaching professional confidence during May and June 1995, November and December 1995 and January 1996 by having disclosed information to Mr Gonod and Mr Olivier Orban, the managing director of Editions Plon, about President Mitterrand's health and the treatment he had been prescribed. Mr Gonod and Mr Orban had also been summoned to answer a charge of aiding and abetting that offence. President Mitterrand's widow and three children had applied to join the proceedings as civil parties but had not filed claims for damages. In a judgment of 5 July 1996, the Criminal Court found Dr Gubler guilty of breaching professional confidence and Mr Gonod and Mr Orban guilty of aiding and abetting the same offence. It sentenced Dr Gubler to four months' imprisonment, suspended, and fined Mr Gonod and Mr Orban FRF 30,000 and FRF 60,000 respectively. The judgment emphasised, in particular, that by signing a publishing contract on 8 November 1995, and subsequently by delivering his manuscript with a view to its publication, Dr Gubler had publicly disclosed confidential information entrusted to him, and that “publication of an entire book based on a breach of medical confidentiality amounted, on Mr Claude Gubler's part, to a serious breach of his professional duties, calling for a stern reminder of the law”. 13. As no appeal was lodged, the judgment became final on 5 September 1996. 14. Alongside those proceedings, on 4 April 1996 President Mitterrand's widow and three children had brought proceedings against Dr Gubler and Mr Orban (both in his personal capacity and as the statutory representative of the applicant company) in the Paris tribunal de grande instance, seeking an order prohibiting resumption of the publication of Le Grand Secret or, in the alternative, deleting certain pages and paragraphs. They also sought an award of damages. They argued, in particular, that the book contained disclosures that breached medical confidentiality and invaded President Mitterrand's privacy in such a way as to interfere with the feelings and personal life of his widow and children. They further submitted that some of these “indiscretions” amounted to direct personal attacks on their own sphere of intimacy. In a judgment of 23 October 1996, the Paris tribunal de grande instance ordered Dr Gubler, Mr Orban and the applicant company jointly and severally to pay damages of FRF 100,000 to Mrs Mitterrand and FRF 80,000 to each of the other claimants, and maintained the ban on distribution of Le Grand Secret. The judgment stated, inter alia: “... Merits of the applications A reading of the book Le Grand Secret reveals that its contents include: (a) a description of the President's 'health regime' at the time when arrangements were being made for the 'medical care' with which he was to be provided throughout his time in office (pages ...); (b) a reference to the initial symptoms of his illness (page ...) and an account of the medical examinations which he underwent in November 1981 (page ...); (c) the results of these examinations and the subsequent discussions between François Mitterrand and his doctors (pages ...); (d) a description of the medical examination carried out on François Mitterrand by Professor [S.] on 16 November 1981, and an account of the conversation in which Professor [S.] and Claude Gubler informed François Mitterrand of the nature of his illness and the forms of medical treatment it required (pages ...); (e) a description of a treatment protocol prescribed by Professor [S.] and Claude Gubler and the manner in which the treatment was administered to François Mitterrand (pages ...); (f) an indication of the pseudonym under which biological tests concerning François Mitterrand were carried out by a private laboratory (page ...) and of the frequency and nature of such tests (pages ...); (g) a description of certain physical disorders that affected François Mitterrand and an indication of the medicine he was given in order to treat them and prevent their recurrence (pages ...); (h) a description of anxiety attacks suffered by François Mitterrand (pages ...); (i) a description of the side-effects of the medical treatment received by François Mitterrand (page ...); (j) information on developments in François Mitterrand's health and the impact of such developments on his behaviour (pages ...); (k) a description of the circumstances in which certain health bulletins on François Mitterrand were drawn up (pages ...); (l) a description of other medical practitioners' dealings with François Mitterrand and the power struggles between various members of his medical team (pages ...); (m) an account of the operation performed on François Mitterrand on 16 July 1994 (pages ...); (n) a description of the medical treatment which François Mitterrand received and the medical examinations he underwent in late 1994 (pages ...); ... The events described in the above passages from Le Grand Secret became known to Claude Gubler in the performance of his professional duties as physician to François Mitterrand or members of his entourage. Although they do not relate directly to medical facts, Claude Gubler could only have become aware of them while practising his profession; accordingly, they were manifestly covered by the duty of medical confidentiality by which he was bound. They were disclosed unlawfully, firstly when Claude Gubler, wishing to provide the public with a 'chronological account' of the head of State's illness, contacted the journalist Michel Gonod and wrote the manuscript for the book in conjunction with him; subsequently, when the manuscript was submitted to Olivier Orban in November 1995 with a view to its publication by Editions Plon; and finally, when the book went on sale a few days after François Mitterrand's death, the publisher laying emphasis in the text on the back cover on the fact that only Claude Gubler, through his privileged position in relation to the head of State, could have written this 'astonishing account'. Neither Claude Gubler's alleged desire to restore the truth by informing the public about facts that had been kept from them for several years ... nor the fact that while François Mitterrand was alive incomplete bulletins about his health were published, which the physician nonetheless agreed to sign, serve as justification for the disclosures in question. The duty of medical confidentiality is general and absolute and does not allow medical practitioners to transform themselves into guarantors of the proper functioning of State institutions or into historical witnesses. Furthermore, nothing can release medical practitioners from their obligation to remain silent, since the duty of professional confidence exists not only to protect the interests of those who confide in them, but also to guarantee the reputation that medical practitioners must enjoy among all those who require medical assistance. Although a practitioner whose competence or integrity has been called into question may be required to breach the duty of confidence in order to prove the quality of his treatment or his good faith, this is subject to the condition that such disclosure is limited to the strict requirements of his defence in court and does not, as in the instant case, take the form of deliberate public divulgence of information. ... Redress The specific purpose of civil liability is to restore as precisely as possible the balance that has been upset by the damage and to return the victim, at the expense of the party held liable, to the position in which he or she would have been had the prejudicial act not occurred. This principle means that, when affording redress for non-pecuniary damage, the courts are able not only to award damages to the victim in compensation for the harm already sustained, but also to prevent any subsequent damage by ordering the elimination of its cause. The offence caused to the Mitterrands and Ms Pingeot by the disclosure of their own doctor's deliberate breaches of the necessary confidentiality of his relations with both François Mitterrand and themselves over many years, the publisher's desire to draw attention to the book in a spectacular manner by rushing to print and sell it immediately after the announcement of François Mitterrand's death (the possibility of a mere coincidence of events cannot be seriously entertained), the advance communication of extracts from the book to certain sections of the press for obvious promotional purposes, and the book's substantial initial print run (40,000 copies were distributed and sold from 17 January 1996) justify an award of damages to the claimants as set out in the operative provisions of this judgment ... and the continuation of the prohibition on the distribution of the book ordered by the urgent-applications judge. In this connection, ... prohibition of the distribution of a piece of writing entailing an infringement of human rights ... [is], regard being had to the principles governing civil liability, [a] legally acceptable means of redress designed to put an end to the injury suffered by the victim and to prevent the recurrence of the damage that would necessarily result from resumption of the distribution of the piece of writing. ... Contrary to what Claude Gubler maintained in his submissions, the time that has elapsed since François Mitterrand's death cannot have had the effect of definitively putting an end to the infringement observed when the book was published and rendering lawful the distribution of a book purporting to be a 'witness account of the historical truth about the President's two terms of office, to which the French people should have access' ..., when the defendant is not authorised to give a historical analysis of facts which became known to him in the performance of duties in which he was bound by absolute confidentiality. Although, in spite of the injunctions of 18 January and 13 March 1996 prohibiting distribution of the book, information contained in Le Grand Secret has been divulged through various media, the ensuing situation is not capable of preventing the injury and damage that would result for the claimants from resumed distribution of the book, with the particular light which the comments of a doctor shed not only on relations with members of the family circle with whom he was in close contact, but also on the most intimate reactions of François Mitterrand to his illness. In view of the space they occupy, the above passages from Le Grand Secret, which disclose facts covered by the rules of medical confidentiality, cannot be separated from the rest of the book without depriving it of its fundamental content and thereby disfiguring it ...” 15. On an appeal by the applicant company, Dr Gubler and Mr Orban, the Paris Court of Appeal gave judgment on 27 May 1997. It cleared Mr Orban on the ground that the production and sale of Le Grand Secret did not constitute a separate tort from the one attributable to the applicant company. It also declared inadmissible the action brought by the Mitterrand family in so far as it concerned the protection of President Mitterrand's private life, pointing out in that connection that “the possibility for anyone to prohibit any form of disclosure about [their private life] is only open to the living”. As to the alleged invasion of the privacy of the Mitterrands themselves, the Court of Appeal noted that certain passages from the book in issue “entail[ed] invasions of the Mitterrands' privacy”, but considered that such infringements could not, “regrettable though they may have been, justify – regard being had, in particular, to their sporadic occurrence in the book – prohibiting publication of the book as a whole”. However, holding that Dr Gubler had breached the duty of medical confidentiality by which he was bound, the Court of Appeal ordered him and the applicant company jointly and severally to pay damages in the amount determined in the first-instance judgment, and upheld the decision to maintain the ban on distribution of the book. The judgment of 27 May 1997 stated, in particular: “... The breach of medical confidentiality It was established in the judgment [of the Paris Criminal Court] of 5 July 1996, which has become final and binding on the civil courts, that Mr Gubler breached the duty of medical confidentiality by which he is bound. It was rightly observed in that decision that breach of professional confidence was made a criminal offence not only in the public interest but also in the interests of private individuals, in order to guarantee the security of the confidential information which they are required to entrust to certain persons on account of their status and profession. The duty of medical confidentiality is founded on the relationship of trust essential to the provision of medical treatment, whereby patients are assured that anything they tell their doctor or cause him to see, hear or understand, as a person in whom such information must be confided, will not be disclosed by him. Article 4, second paragraph, of the Code of Conduct for Medical Practitioners provides that medical confidentiality covers 'everything that has come to the attention of medical practitioners in the practice of their profession, that is, not only what has been confided in them but also what they have seen, heard or understood'. Since Mr Gubler was in the company of Mr François Mitterrand solely on account of his position as his doctor, all the information he recounts in his book, which he learned or observed while practising his profession, is covered by the duty of medical confidentiality by which he is bound vis-à-vis his patient, although it may also constitute interference with the patient's private life or sphere of intimacy. The Mitterrand family have inherited from Mr François Mitterrand the right to bring proceedings against the appellants. Although Le Grand Secret was published after François Mitterrand's death, it should be noted that the book was in fact the subject of a publishing contract signed on 8 November 199[5], prior to his death. Accordingly, the Mitterrands have inherited from the deceased the right both to obtain redress for the breaches of medical confidentiality resulting from the disclosure of confidential information to Mr Gonod in May and June 1995 and to Mr Orban in November 1995, as the criminal court held, and to obtain compensation for the consequences of the decision taken on 8 November 1995 to publish the book; this possibility is not excluded by the judgment of 17 July 1995 and is not contrary to the principle of res judicata in relation to that judgment. Redress The exercise of freedom of expression, a principle with constitutional status set forth in Article 10 of the Convention ..., carries with it duties and responsibilities; it may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, for example for the protection of health, for the protection of the reputation or rights of others or for preventing the disclosure of information received in confidence. In the instant case the prohibition of the book complained of is necessary since it is the only means of putting an end to the damage sustained and to the criminal offence which it constitutes ...” 16. In a judgment of 14 December 1999, the Court of Cassation dismissed an appeal on points of law by Mr Orban and the applicant company. In response to their ground of appeal based on Article 10 of the Convention, it held: “... the Court of Appeal held that all the information published had been obtained by Mr Gubler in the performance of his professional duties as private physician to François Mitterrand, so that it was covered by the rules of medical confidentiality, although it could also constitute interference with the right to respect for private life. After observing that the breach of medical confidentiality had been established by a criminal court, the Court of Appeal, pointing out that the exercise of freedom of expression could be subject to certain restrictions, in particular for the protection of the rights of others, justified its decision in law in holding, in the exercise of its exclusive jurisdiction, that discontinuing the distribution of the book was the only means of putting an end to the criminal offence and the damage sustained, its assessment of which is not subject to appeal ...” However, partly allowing an appeal on points of law by the Mitterrands, the Court of Cassation quashed and annulled the judgment of 27 May 1997 in so far as it had cleared Mr Orban, and remitted the case, on that point, to a differently constituted bench of the Paris Court of Appeal. The outcome of that aspect of the proceedings has not been specified by the parties. 17. The parties have stated that an electronic version of the text of Le Grand Secret is available on the Internet. They have not indicated who decided to disseminate the text in this form or the date when it became available. 18. The obligation of medical confidentiality incumbent on medical practitioners is set forth in the following provisions of the Code of Conduct for Medical ¨Practitioners: “The duty of professional confidentiality, established in the interests of patients, shall apply to all medical practitioners as provided by law. Such confidentiality shall cover everything that has come to the attention of medical practitioners in the practice of their profession, that is, not only what has been confided in them but also what they have seen, heard or understood.” “Medical practitioners must ensure that persons who assist them in their practice are informed of their obligations regarding professional confidence and comply with them. They must ensure that those around them do not breach the confidentiality attaching to their professional correspondence.” “Medical practitioners must protect from any indiscretion the medical documents concerning persons whom they have treated or examined, irrespective of the content or form of such documents. The same shall apply to any medical information that may be in their possession. When using their own experience or documents for the purposes of academic publishing or teaching, medical practitioners must ensure that individuals cannot be identified. Failing this, the consent of the persons concerned must be obtained.” 19. Breaching professional confidence is a criminal offence under Article 226-13 of the Criminal Code, which provides: “The disclosure of confidential information by persons who are entrusted with it either on account of their position or profession or on account of a temporary function or assignment shall be punished by one year's imprisonment and a fine of 15,000 euros.” The Court of Cassation has held that “what the law intended to guarantee is the security of confidential information which individuals are required to disclose to persons whose position or profession makes it necessary, in the general public interest, to confide such information in them” (Criminal Division of the Court of Cassation (Cass. crim.), 19 November 1985, Bulletin criminel (Bull. crim.) no. 364). The Court of Cassation has further held that “the obligation of professional confidence, as set forth in Article 226-13 of the Criminal Code in order to ensure the necessary trust in the practice of certain professions or the performance of certain duties, is incumbent on medical practitioners, save where the law provides otherwise, as a duty inherent in their position [and], subject only to this proviso, is general and absolute” (Cass. crim., 8 April 1998, Bull. crim. no. 138), and that “no one is entitled to release them from it” (Cass. crim., 5 June 1985, Bull. crim. no. 218). In a case concerning a lawyer, it has held that “the obligation of professional confidence, as set forth in Article 226-13 of the Criminal Code, is incumbent on lawyers as a duty inherent in their position [and that] knowledge by others of facts covered by the confidentiality rule does not mean that they are no longer confidential and secret” (Cass. crim., 16 May 2000, Bull. crim. no. 192). Article 226-14 of the Criminal Code (in its wording resulting from Law no. 2002-73 of 17 January 2002) provides: “Article 226-13 shall not apply in cases where the law requires or authorises disclosure of confidential information. Nor shall it apply to: (1) persons who inform the judicial, medical or administrative authorities of acts of deprivation or ill-treatment, including sexual assault, of which they have knowledge and which have been inflicted on a minor under 15 years of age or a person unable to protect himself or herself because of his or her age or physical or mental condition; (2) medical practitioners who, with the victim's consent, bring to the attention of a public prosecutor acts of ill-treatment which they have noted in the practice of their profession and which cause them to suspect that sexual assault of any nature has been committed; (3) health or welfare professionals who inform the prefect, or, in Paris, the Commissioner of Police, of the danger posed to themselves or others by persons who consult them and whom they know to be in possession of a weapon or to have indicated their intention to acquire one. No disciplinary measures may be taken where a medical practitioner has reported acts of ill-treatment to the relevant authorities in accordance with this Article.” 20. The Court of Cassation has held that, although professional confidentiality is a strict obligation, it cannot prohibit medical practitioners whom a patient has attempted to involve in fraud by causing them, through deception, to issue a certificate falsely attesting to the existence of illness or disability from proving that they acted in good faith by giving evidence, in judicial proceedings relating to the fraud, about the means used to falsify their examination and impede their judgment, thereby causing them to issue the certificate (Cass. crim., 20 December 1967, Bull. crim. no. 338). The Government pointed out, however, that that was possible only on condition that the disclosure was limited to the strict requirements of the medical practitioner's defence in court and did not take the form of a deliberate public disclosure; they referred in that connection to a Watelet judgment delivered by the Criminal Division of the Court of Cassation on 19 December 1885, although they did not produce it or cite its publication reference. The applicant company produced a judgment of 22 May 2002 in which the First Civil Division of the Court of Cassation held that “pursuant to Article 901 of the Civil Code [by which 'persons making a donation ... must be of sound mind'], which amounts to authorisation within the meaning of Article 226-14 of the Criminal Code, practitioners are released from their obligation not to disclose facts which become known to them in the practice of their profession; since the purpose of professional confidence is to protect the non-professional who confided such facts in the professional, they may be disclosed not only to the non-professional but also to persons with a legitimate interest in ensuring this protection”. The Court of Cassation inferred from this that the trial courts could rule that an expert appointed in proceedings for the determination and partition of an estate should have access to the deceased's medical records without being blocked on grounds of medical confidentiality by the practitioner in possession of the records. | 1 |
dev | 001-72166 | ENG | RUS | CHAMBER | 2,006 | CASE OF MIKHEYEV v. RUSSIA | 2 | Preliminary objection dismissed (non-exhaustion of domestic remedies);Violations of Art. 3 (torture and failure to investigate);Not necessary to examine other complaints under Art. 3;Violation of Art. 13;Not necessary to examine Art. 34 and 38-1-a;Pecuniary damage - financial award;Non-pecuniary damage - financial award | Christos Rozakis | 9. The applicant was born in 1976 and lives in Nizhniy Novgorod. At the relevant time he was a police officer in the road traffic department. On 8 September 1998, while off duty, he and his friend F met MS, a teenage girl, in Bogorodsk, in the Nizhniy Novgorod region. The applicant gave MS a lift in his car to Nizhniy Novgorod. 10. On 10 September 1998 MS’s mother informed the Bogorodsk municipal police of her daughter’s disappearance. At 4 p.m. on the same day, the applicant was arrested. F was also arrested and brought to Bogorodsk police station. The applicant and F were questioned by police officers in relation to the disappearance of MS. However, no charge was brought against them. Following the questioning, the police seized the applicant’s identity card and other documents and put him in the detention wing. 11. On the evening of 10 September 1998 the applicant’s superior officer came to the applicant’s cell and forced him to sign a resignation statement backdated to 17 August 1998. 12. On 11 September 1998 the police searched the applicant’s flat, country house, garage and car. They found three gun cartridges in his car. 13. On 12 September 1998 three officers from Bogorodsk municipal police, N, T and D, filed an “administrative offence report” with a judge of Bogorodsk Town Court. The report stated that on the evening of 11 September 1998 the applicant and F had committed a “disturbance of the peace” at the railway station. On the same date the judge sentenced the applicant and F to five days’ administrative detention from 11 September 1998. 14. According to the applicant, while in detention in Bogorodsk police station, he had been repeatedly questioned about the disappearance of MS. He denied any involvement in her disappearance. He said that he had requested a lawyer on many occasions, but that his request had been refused. 15. On 16 September 1998 the police opened a criminal investigation relating to the ammunition found by the police during the search of 11 September 1998 (criminal case no. 68205). By this time the term of the applicant’s administrative detention had expired and the applicant had been placed in custody in connection with the criminal case. He was transferred to another detention centre, under the jurisdiction of Leninskiy police department, who were in charge of the case. 16. The applicant submitted that after his transfer to the detention centre the questioning had become more intensive and even violent. For instance, on several occasions the police officers had slapped him and threatened him with torture in order to extract a confession that he had killed MS. In particular, they had threatened to apply electric shocks to him or place him in a cell with “hardcore criminals” who would kill him if they learned he was a police officer. 17. On 17 September 1998 the applicant was visited by a lawyer hired by the applicant’s mother several days earlier in connection with criminal case no. 68205. According to the applicant, during the conversation with the lawyer he had mentioned that the real reason for his detention was the disappearance of MS. However, the lawyer replied that she could not take on another case that she had not been paid for. The next day, according to the applicant, the police investigator banned all visits by the lawyer to the applicant. 18. Meanwhile, F testified to the police that he had seen the applicant rape and kill MS. He indicated to the investigators the place where they had allegedly hidden the body of MS. A group of policemen went there, but nothing was found. 19. On 19 September 1998 the applicant was questioned at Leninskiy police station in the presence of several police and prosecution officials, including I (the senior police investigator), S (deputy head of the local office of the Ministry of the Interior), MR (the deputy regional prosecutor), the Bogorodsk town prosecutor, and a number of policemen of the Leninskiy police department. 20. The applicant alleged that he had been subjected to torture in order to make him corroborate F’s confession. According to the applicant, while he was sitting handcuffed on a chair, police inspectors K and O had administered electric shocks to his ears through metal clips connected by a wire to a box. The applicant had been tortured several times in this way. The applicant had also been threatened with severe beatings and application of an electric current to his genitals. One of the police officers had told him that the current could cause his tongue to fall back into his throat, from where it could be extracted only by means of a safety pin. 21. According to the applicant, the officials from the prosecutor’s office had not been present in the room where he had been tortured with electrodes. However, he had twice been brought to another room in the police station, where he had been repeatedly questioned by those officials, notably MR. The applicant had complained to MR about the ill-treatment, but the latter had not reacted, and when the applicant again refused to confess to murdering MS, MR had ordered the police officers to take the applicant “back to where he came from”. 22. The applicant submitted that, unable to withstand the torture and left unattended for a moment, he had broken free and jumped out of the window of the second floor of the police station in order to commit suicide. He had fallen on a police motorcycle parked in the courtyard and broken his spine. 23. The applicant, accompanied by inspector K, was immediately taken to Hospital no. 33 of Novgorod Region, where he was examined by Dr M, who established various injuries caused by his fall from the window, affecting in particular his vertebral column and locomotor system. 24. On the same day the applicant was transferred to Hospital no. 39. His mother arrived at the hospital and asked Dr K to include burns to the applicant’s ears in his medical record. However, her request was refused. She also submitted a request to Dr S, who was in charge of the applicant’s case, and to the head doctor of the hospital, asking that the burns be recorded. She received no answer to her requests. 25. On 19 September 1998, the day of the applicant’s fall from the window, MS returned home unharmed. She explained that on the night of 8 September 1998 the applicant had offered her a ride in his car. She had agreed. When they had arrived in Nizhniy Novgorod, he had suggested that she could spend the night at his place, but she had refused and the applicant had let her go. MS had gone to friends living in Nizhniy Novgorod, where she had spent several days, without letting her mother know were she was. 26. On 21 September 1998 the applicant’s detention was formally discontinued. On 22 September 1998 the applicant underwent spinal surgery. He remained in hospital until 3 February 1999. On 25 September 1998 criminal case no. 22346 concerning the alleged rape and murder of MS was closed. However, the applicant became a suspect in another criminal case – no. 22414, in which he was charged with the abduction of MS. 27. On 1 March 1999 the criminal investigation into the illegal possession of the gun cartridges was discontinued, on the ground that at the time of their discovery the applicant had been a police officer and, therefore, had had the right to possess the ammunition. On 1 March 2000 (the Government indicated a different date – 10 May 2000), the case concerning the alleged abduction of MS was also discontinued on the ground that the applicant had freed MS at her request. 28. On 21 September 1998 an investigator from the Leninskiy district prosecutor’s office instituted a criminal investigation into the applicant’s fall from the window of the police station on 19 September 1998 (case no. 68241). 29. The investigator questioned five police officers from the Leninskiy district police who had participated in the questioning on 19 September 1998. They stated that they had not ill-treated the applicant or seen him being ill-treated. The police officers said that, in the course of the interview, inspector K had told the applicant that his friend F had testified to having seen the applicant rape and murder MS, and that it would be wise for him to confess. The interview had then been interrupted for a tea break. While the officers had been busy preparing tea, the applicant had suddenly jumped out of his chair, run to the window, broken the glass and fallen out. 30. The investigator also questioned F, who submitted that no pressure had been exerted on him to make a false statement about the applicant. F stated that he had implicated the applicant out of fear of being accused of bringing about the disappearance of MS. 31. The investigator further questioned Dr K from Hospital no. 39, who had examined the applicant after the accident of 19 September 1998. The doctor confirmed that on the day of the accident the applicant’s mother had mentioned some electrical burns on her son’s ears. However, all the applicant’s injuries had been caused by his fall from the window. According to the medical record, the applicant had no electrical burns to his ears. 32. B, the applicant’s ward-mate in Hospital no. 39, was also questioned by the investigator. B spoke of burns and abrasions to the applicant’s ears which may have been caused by an electrical discharge. B stated that he had worked as an electrician and therefore knew what burns from an electrical current looked like. 33. The investigator ordered a forensic medical examination of the applicant. The forensic report, drawn up on 26 October 1998, stated that the applicant had wounds on the top of his head, scratches on his forehead and bite marks on his tongue. No burns or other traces of the use of electrical current were recorded. 34. On 21 December 1998 the investigator discontinued the criminal proceedings against the police officers for lack of evidence of a crime. The investigator found that the applicant had been arrested on 10 September 1998 in connection with the disappearance of MS. On 11 September 1998 the police had carried out a search of the applicant’s car and found three gun cartridges. On the same day the applicant and F had been released. However, shortly after their release inspector N of the Bogorodsk police had identified certain factual gaps in their written submissions. Inspectors N and D had followed the applicant and found him at the town’s railway station. The applicant had been disturbing passers-by by addressing them with obscene language. As a result the applicant had been arrested again and on the next day made the subject of an administrative arrest for disturbance of the peace. On 16 September 1998 a new criminal case had been opened against the applicant in relation to the gun cartridges found in his car. On 19 September 1998 a detention order had been issued against the applicant on this new ground. On the same day he had been transferred to Leninskiy district police station, where he had been questioned by several police officers, including inspectors K and O. After the interview the applicant had suddenly jumped out of his chair, broken the window and fallen out. He had been brought immediately to Hospital no. 39. On the same day MS had returned home. 35. The investigator referred further to the testimonies of the police officers and Dr K, the medical records of Hospital no. 39 and the forensic medical report of 26 October 1998. He also referred to the opinion of a medical expert, S, which stated that the application of an electrical current might leave burns on the skin. The investigator disregarded the testimony of B on the basis that the latter “had no specialist medical knowledge”. The investigator came to the conclusion that the applicant’s allegations of torture were unsubstantiated, describing them as a “defence mechanism” in response to the situation in which he had attempted suicide. 36. On 25 January 1999 the regional prosecutor’s office reopened the case and handed it to the same investigator for further investigation. On 25 February 1999 the investigator, referring to the same evidence as before and using identical wording, discontinued the proceedings again. He added that the investigative measures referred to by the senior prosecutor in his decision of 25 January 1999 had already been taken in 1998. Given the state of the applicant’s health, it was impossible to carry out new investigative measures, such as confrontations or forensic examinations. 37. On 1 December 1999 the same supervising prosecutor reopened the case and ordered certain additional investigative measures, including a medical examination of the applicant and a confrontation between the applicant and the police officers who had allegedly tortured him. The case was transferred to another investigator. On 24 February 2000 the investigator discontinued the proceedings, basing his decision on the same reasoning as in the decision of 21 December 1998. 38. On 10 March 2000 the same supervising prosecutor reopened the case for the third time and handed over the file to another investigator. 39. This time the applicant’s mother was questioned. She stated that on 19 September 1998 she had arrived at the hospital and had seen that her son’s ears had been injured. She had asked that the injuries be recorded but the request had been refused by the hospital doctor, because “they had been given instructions to that effect”. 40. The investigator also questioned a hospital attendant and four doctors from Hospital no. 39, who all denied that the applicant had had injuries other than those caused by his falling out of the window. One of the patients in Hospital no. 39, where the applicant had been brought after the accident, confirmed that the applicant had told him about the torture with electrodes; however, the patient stated that he had seen no traces of any injuries on the applicant’s ears. F, who had visited the applicant in hospital, stated that the applicant had told him about the torture, but F had seen no signs of torture on him. 41. A further witness, the senior officer of the traffic police department where the applicant had served before his arrest, provided the investigator with a “psychological profile” of the applicant, describing the applicant as having a weak personality. The investigator also obtained the results of a psychological test which the applicant had undergone upon his appointment to the traffic police. The test revealed that the applicant “had a tendency to avoid conflict and was a vulnerable person, susceptible to outside influences”. 42. On 21 July 2000 the proceedings were discontinued. The investigator concluded that the applicant had jumped out of the window of his own will, “driven by his personal assessment of the situation, based on specific psychological features of his personality”. 43. On 10 November 2000 the case was reopened by another supervising prosecutor. F was questioned anew. This time F testified that while in Bogorodsk police station, he had been beaten by inspector A in an attempt to extract a confession to the murder of MS. Between 16 and 19 September 1998 F had been repeatedly questioned in Leninskiy district police station in Nizhniy Novgorod. In the course of the questioning I, the senior police investigator, had slapped and shaken him. I had also mentioned that F would be tortured with electrodes if he did not confess to the impugned crimes. F had also been questioned by MR, the deputy regional prosecutor. On 18 September 1998 F had signed the confession and even located on the map the place where he and the applicant had allegedly hidden the body. 44. After the incident, F had visited the applicant in hospital. The applicant had told him about the torture with electrodes. In reply F had described to the applicant the officer who had threatened him with it, and the applicant had confirmed that this was the same officer who had participated in the questioning of 19 September 1998. Later that year he had recounted this to the investigator in charge of case no. 68241; however, it had been decided not to include these statements in the official record. 45. On 29 December 2000 the investigation was again discontinued by an investigator from the prosecutor’s office. On an appeal by the applicant on 27 March 2001, the Nizhegorodskiy District Court of Nizhniy Novgorod quashed the decision, ordering the prosecution to carry out a further investigation. The court noted, inter alia, that the applicant’s submissions were consistent and detailed, and that the case should be investigated more thoroughly. The court ordered other patients from the hospital where the applicant had been brought after the accident to be questioned. The court also deemed it necessary for the applicant to be examined by an expert in psychiatry and psychology. 46. The proceedings were resumed. This time the prosecution investigator questioned Dr M, who had been on duty in Hospital no. 33, where the applicant had been brought immediately after the accident. The doctor stated that he had not noticed or treated any injuries to the applicant’s ears. The same evidence was reiterated by Dr K and Dr S. They both confirmed that the applicant’s mother had requested them to re-examine the applicant’s ears on several occasions, but that they had not identified any injuries. Five patients from Hospital no. 39 testified that the applicant had told them about being tortured with electrodes, but that they had seen no signs of any injuries on the applicant’s ears. The same testimony was given by F. 47. The investigator also ordered a psychological and psychiatric examination of the applicant. The examination showed that the applicant was mentally sane, but had been traumatised by the accident and had a lasting physical disability as a result of it. At the time of the examination, the applicant’s mental state was characterised by euphoric reactions, amiability, emotionality and dependence on a stronger personality, namely his mother. He did not display any suicidal tendencies. The report stated that it was impossible to draw any conclusions as to the applicant’s mental state at the time of the accident. 48. On 19 May 2001 the proceedings were discontinued by the investigator on the same grounds as before. 49. By letter of 5 August 2002 the Nizhniy Novgorod regional prosecutor’s office informed the applicant that the investigation had been reopened and sent to the Leninskiy prosecutor’s office with relevant instructions for additional investigation. The applicant requested that the prosecution service question V, one of the patients in Hospital no. 39. 50. On 5 September 2002 the prosecution service discontinued the investigation, finding that no criminal offence had been committed and indicating, inter alia, that it had been impossible to find V at his place of residence. The investigator concluded that the applicant’s allegations of torture were supported only by his own submissions, which, in the light of other evidence obtained in the course of the investigation, had been found to be untrue. 51. Knowing that V was disabled and a wheelchair user, the representatives of the applicant contacted V and learned that the execution of the request to question V had been assigned to inspector O, one of the police officers involved in the alleged torture. Inspector O reported that on several occasions he had tried to question V, but had been unable to find him at his address. On 26 September 2002 V explained to the applicant’s representatives that someone introducing himself as an investigator had telephoned him once and said that he needed to question him. V had agreed to make a statement, but the person had never called back. 52. On 28 October 2002 the Nizhniy Novgorod regional prosecutor’s office annulled the decision of 5 September 2002. On 28 November 2002 the Leninskiy district prosecutor’s office discontinued the investigation yet again on the same grounds. The applicant appealed against the decision to discontinue the investigation. By letter of 24 July 2003 the applicant was informed that the Nizhniy Novgorod regional prosecutor’s office saw no reason to overturn the decision to discontinue the investigation. 53. According to the respondent Government, the regional prosecutor reopened the investigation on 6 November 2003 and transferred the case to the Leninskiy district prosecutor’s office. Apparently, by the end of December 2003 the case had been closed again. On 19 January 2004, according to the applicant, the investigation was reopened. On 26 January 2004 the case was transferred from the Leninskiy district prosecutor’s office to the department of the regional prosecutor’s office dealing with investigations into cases of particular importance. 54. F was questioned once more. He testified that while being questioned in Leninskiy district police station in connection with the disappearance of MS he had been beaten by the police officers. They had also threatened to torture him with electrodes. 55. On 19 February 2004 the investigator from that department closed the case again, concluding that no evidence of ill-treatment of the applicant had been obtained and that the actions of the police officers had been lawful. On 4 March 2004 the case was reopened, before being closed again on 4 July 2004. On 3 August 2004 the case was reopened by the regional prosecutor’s office. On 6 September 2004 the case was closed. It was then reopened, and, according to the Government’s submissions, closed again on 20 October 2004. On 22 November 2004 the regional prosecutor reopened the investigation. According to the Government, the deadline for the new investigation was 2 April 2005. 56. On an unspecified date in 2005 the prosecutor’s office brought charges against two policemen, K and SM, who had participated in the questioning of the applicant on 19 September 1998. The case file, together with a bill of indictment, was eventually forwarded to the Leninskiy District Court of Nizhniy Novgorod for examination. 57. In the course of the trial the court questioned a large number of witnesses. Hence, it questioned K, SM, and fifteen other police officers who had participated in the questioning of 19 September 1998 or had been in Leninskiy police station on that day. They all denied that they had tortured the applicant or had heard of any such torture. The court further questioned VK, a former police investigator, who had been in charge of the applicant’s case but had not taken part in his questioning. She testified that she had heard from her colleagues that the applicant had jumped out of the window because he had been tortured with electrodes. 58. The court also heard evidence from the applicant, his mother, F, MS, and the doctors at the hospital where the applicant had been placed after the incident. They confirmed their initial submissions. An expert witness appeared before the court. He testified that in certain conditions electric current might leave no traces on the human body. The court also questioned VZ, who in August 1998 had been brought to Leninskiy police station on suspicion of theft. According to VZ, two policemen had questioned him and then tortured him with electrodes in the same way as the applicant described. 59. The court heard other witnesses and examined exhibits and materials collected in the course of the pre-trial investigation. Thus, the court read out the testimonies of B, V, and S, the applicant’s ward-mates in Hospital no. 39, and examined the results of medical and psychiatric expert examinations of the applicant. The court also examined a piece of paper which had been found during the search of the office where the applicant had been questioned on 19 September 1998. It contained an unfinished passage describing the events of 10 September 1998, when MS had disappeared, under the title “Voluntary confession”. The whole text had been written by the applicant. 60. On the basis of the above evidence the court established that on 19 September 1998 the applicant had been brought to Leninskiy police station, where he had been questioned by several officials from the police and the prosecutor’s office. They had requested him to confess to having raped and murdered MS and to show them where he had buried the corpse. In order to extract a confession from the applicant, police officers K and SM had administered electric shocks to the applicant using a device connected to his ears. The court noted that in his initial submissions the applicant had testified that he had been tortured by inspectors K and O. However, following the identification parade the applicant had identified inspector SM as one of two officers who had tortured him. Unable to withstand the pain, the applicant had agreed to confess, but, left unattended for a moment, had attempted suicide by jumping out of the window. He had fallen on a motorbike parked in the courtyard of the police station and broken his spine. 61. On 30 November 2005 the Leninskiy District Court of Nizhniy Novgorod found K and SM guilty under Article 286 § 3 (a) and (в) of the Criminal Code (abuse of official power associated with the use of violence or entailing serious consequences). They were sentenced to four years’ imprisonment with a subsequent three years’ prohibition on serving in the law-enforcement agencies. According to the information available to the Court, the judgment of 30 November 2005 is not yet final. 62. In the summer of 1999 two activists from a regional human rights NGO (Nizhniy Novgorod Committee against Torture) interviewed several persons about the events of September 1998 complained of by the applicant. Their submissions were recorded on videotape. 63. In those interviews, F stated that he had been arrested on 10 September 1998. While in custody, he had been threatened and slapped several times in order to extract a confession to the murder of MS. On 17 September 1998 he had been questioned by a senior police investigator, I, who had kicked him and threatened to place him in an “underground cell” where he would be beaten and tortured with electrodes until his eyes bled. 64. On 18 September 1998 a short confrontation had been arranged between F and the applicant. F submitted that he had seen bruises on the applicant’s neck. In the evening F had been questioned again, this time in the presence of the deputy regional prosecutor MR and the Bogorodsk town prosecutor, as well as several police officers. MR had threatened to lock F in a cell with “boy-crazy criminals” who would rape him, or to put him in a cell together with tuberculosis-infected detainees. He had also threatened that if F survived in the cell, he would be sentenced to 25 years’ imprisonment or death row. 65. F had confessed to raping and killing the girl together with the applicant. At MR’s request, F had named the place where they had allegedly hidden the corpse. An investigating team had been sent to the place in question, but had found nothing. On 20 September 1998, after the girl had come home, F had been released. 66. According to B, the applicant’s ward-mate in Hospital no. 39, after having been brought to the hospital the applicant had told him about the circumstances of his arrest and, in particular, about the torture with electrodes. The applicant had shown B burns on his ears, which looked like “stripped blisters”. According to M, another patient in the hospital, before the applicant had been brought to the hospital the police had warned the personnel that the applicant was a dangerous criminal. The patients had been required to hide all sharp metallic objects. M also recollected that there had been something red on the applicant’s ears, “as if somebody has pulled his ears”. M also remembered that the applicant’s mother had asked the doctors to examine his ears, but that they had replied that everything had been normal. V confirmed that, while in the hospital, he had heard from the applicant about the torture and seen the applicant’s mother asking the doctor to examine his ears. V also confirmed that the applicant’s ears had been injured, but said that it did not look like blisters as far as he could remember. 67. The NGO activists also interviewed L and K, witnesses to the search of the applicant’s car. 68. In December 2000 the NGO activists questioned F once more with a view to clarifying the discrepancies between his evidence in the course of the official investigation and his statements to the NGO activists and the media. F stated that the investigators, while questioning him as part of the official criminal investigation, had disregarded his statements about the deputy regional prosecutor MR’s involvement in the events of September 1998. 69. On an unspecified date in 1998 a prosecutor filed a request for supervisory review of the judgment of 12 September 1998 whereby the applicant had been sentenced to five days’ administrative detention. On 2 December 1998 the President of the Nizhniy Novgorod Regional Court quashed that judgment. The President noted that the judgment had been based on the information from the police officers at Bogorodsk police station, who had alleged that they had arrested the applicant at the railway station on 11 September 1998. However, at that time the applicant had in fact been detained in custody in connection with the disappearance of MS. 70. On 23 March 2000 a prosecutor instituted criminal proceedings against the three Bogorodsk police officers for making false statements in relation to the alleged arrest of the applicant at the railway station (criminal case no. 310503). A prosecution investigator confirmed that the applicant had not been at the railway station on 11 September 1998, having at that time been detained in custody. However, on 3 November 2000 the charges against the police officers were dropped following a “change in the situation” in view of the fact that one police officer had been dismissed from his job, while the other two had been transferred to other positions within the Ministry of the Interior. 71. The Government stated that on 25 May 2001 criminal case no. 310503 had been reopened by the prosecution service and transmitted to the Pavlovsk town prosecutor’s office for further investigation. On 20 October 2002 the criminal case was closed owing to expiry of the time-limits for criminal prosecution of the police officers. This decision was quashed by the town prosecutor and the case was reopened again. On 1 April 2004 the criminal case against the three police officers was forwarded to the court of first instance together with the bill of indictment. On 27 April 2004 the proceedings were discontinued owing to expiry of the statutory time-limit for criminal prosecution of the defendants. On 19 November 2004 the Nizhniy Novgorod Regional Court quashed that decision and remitted the case to the court of first instance. According to the respondent Government, the proceedings are still pending. 72. On 19 December 2001 the applicant lodged a civil claim with the Leninskiy District Court of Nizhniy Novgorod, seeking compensation for malicious prosecution, his dismissal from his job, the search of his premises and his detention and ill-treatment by the police. The applicant’s lawyer asked the court to request from the prosecutor’s office case-files nos. 68241, 310503 and 68341. The applicant and his representative maintained that the evidence gathered by the prosecution was necessary to argue the substantive part of the civil suit. On 22 April 2002 the Leninskiy District Court of Nizhniy Novgorod requested the files from the respective prosecutor’s offices. On 6 July 2002 case-file no. 68241 was delivered to the court. It was withdrawn three days later by the prosecutor’s office. On 27 July 2002 the case-file was re-submitted to the court. On 1 August 2002, at the prosecutor’s request, the case-file was returned to the prosecution. On 23 October 2002 the applicant’s representative asked the court to suspend the civil proceedings. 73. The applicant’s notice of dismissal dated 17 August 1998 was annulled, and the applicant was reinstated in his post. The officers responsible for his backdated dismissal were subjected to disciplinary proceedings. However, owing to the applicant’s complete disability, he had to leave the traffic police. 74. The applicant is disabled and receives a pension from the State on that basis. The Government indicated that in connection with the accident he also received a lump-sum insurance indemnity from the State in the amount of 60,302 Russian roubles (about 1,740 euros at the current exchange rate). 75. The applicant produced a report, drawn up on 29 November 2004 by Dr L. Magnutova, a specialist in forensic medicine. The report stated that the applicant suffered from osteomyelitis, his legs were paralysed, he was unable to work and he suffered from severe dysfunction of the pelvic organs and loss of sexual function. He was confined to bed and was in permanent need of a nurse to help him urinate and empty his bowels. The applicant was at risk of sepsis. He required regular hospital examinations, at least two or three times a year. 76. The Civil Code of the Russian Federation, which entered into force on 1 March 1996, provides for compensation for damage caused by an act or failure to act on the part of the State (Article 1069). Articles 151 and 1099-1101 of the Civil Code provide for compensation for non-pecuniary damage. Article 1099 states, in particular, that nonpecuniary damage shall be compensated irrespective of any award for pecuniary damage. 77. Article 117 § 2 (f) of the Criminal Code of the Russian Federation makes acts of torture punishable by up to seven years’ imprisonment. Article 110 of the Code makes incitement to suicide liable to a sentence of up to five years’ imprisonment. Under Article 286 § 3 (a) and (в) the abuse of official power associated with the use of violence or entailing serious consequences carries a punishment of up to ten years’ imprisonment. 78. Under Articles 108 and 125 of the 1960 Code of Criminal Procedure (in force until 2002), a criminal investigation could be initiated by a prosecution investigator at the request of a private individual or of the investigating authorities’ own motion. Article 53 of the Code stated that a person who had suffered damage as a result of a crime was granted the status of victim and could join criminal proceedings as a civil party. During the investigation the victim could submit evidence and lodge applications, and once the investigation was complete the victim had full access to the case-file. 79. Under Articles 210 and 211 of the Code, a prosecutor was responsible for overall supervision of the investigation. In particular, the prosecutor could order a specific investigative measure to be carried out, the transfer of the case from one investigator to another, or the reopening of the proceedings. 80. Under Article 209 of the Code, the investigator who carried out the investigation could discontinue the case for lack of evidence of a crime. Such a decision was subject to appeal to the senior prosecutors or the court. The court could order the reopening of a criminal investigation if it deemed that the investigation was incomplete. 81. Article 210 of the Code provided that the case could be reopened by the prosecutor “if there are grounds” to do so. Only if the time-limit for prosecuting crimes of that kind had expired could the investigation not be reopened. 82. Article 161 of the Code provides that, as a general rule, the information obtained in the course of the investigation file is not public. The disclosure of that information may be authorised by the prosecuting authorities if the disclosure does not impede the proper conduct of the investigation or go against the rights and legitimate interests of those involved in the proceedings. The information concerning the private life of the parties to the proceedings cannot be made public without their consent. | 1 |
dev | 001-108828 | ENG | SWE | ADMISSIBILITY | 2,012 | A.G. v. SWEDEN | 4 | Inadmissible | Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger | The applicant, A.G., is a German national who was born in 1990 and lives in Allerum. He was represented before the Court by Dr. jur. A. Firsching, a lawyer practising in Stockholm. The Swedish Government (“the Government”) were represented by their Agent, Mr B. Sjöberg, of the Ministry for Foreign Affairs. The German Government did not make use of their right to intervene under Article 36 of the Convention. The facts of the case, as submitted by the parties, may be summarised as follows. On 5 November 2007 the father of A., a seven year-old girl, reported to the police that his daughter had told her mother the day before that she had been sexually abused by the applicant. The incident was supposed to have taken place some time during the 2007 school summer break. On 6 November 2007, between 2.08 p.m. and 2.44 p.m., A. was interviewed by a police inspector. The interview was recorded on videotape. At that time, the applicant had not been informed of the suspicions against him and no defence counsel had been appointed for him. On 7 November 2007 the applicant was questioned by the police, in the presence of his newly-appointed defence counsel. Before the questioning he was notified, in accordance with Chapter 23, section 18, of the Code of Judicial Procedure (Rättegångsbalken), that he was suspected of rape of a child (våldtäkt mot barn). On 10 December 2007, between 10.06 a.m. and 10.35 a.m, A. was interviewed a second time by the police inspector who had conducted the first interview. This interview was also videotaped. The applicant’s counsel was shown the recording of the first interview before the start of the second interview. He followed the second interview on a monitor, from an adjoining room and used the opportunity to put supplementary questions to A. through the interviewing police inspector. The applicant himself was not present, however. On 17 December 2007 the applicant was questioned by the police a second time, in the presence of his counsel. The police also interviewed A.’s father and mother, A.’s father’s partner, the cohabitee of the grandmother of the partner, A.’s grandmother and the eight-year-old friend of A. The last interview was videotaped. The preliminary investigation was concluded on 18 February 2008. The applicant and his counsel were notified of the investigation report on 20 February 2008, at which time they were shown the videotaped interviews with A. and with her friend. The applicant’s counsel requested that a supplementary interview be held with the friend’s father. This interview was held on 29 February 2008. No further requests or comments were made concerning the report of the preliminary investigation. The applicant was subsequently indicted for rape of a child. The District Court (tingsrätten) of Helsingborg held a hearing in the case on 27 March 2008. Heard by the court, the applicant denied the charges. The videotaped police interviews with A. were shown during the hearing. The court also heard evidence from A.’s mother and A.’s father’s partner, on the proposal of the prosecution, as well as the father of A.’s friend, at the request of the defence. No request was made for A. to be heard in person. In a judgment of 3 April 2008 the District Court, by a majority of three lay assessors against the presiding judge, convicted the applicant of the lesser offence of sexual assault of a child (sexuellt övergrepp mot barn) and sentenced him to 70 hours of community service. It also ordered him to pay 50,000 Swedish kronor in damages to A. The court gave the following reasons: “[The applicant] has completely denied the charges brought against him by the prosecutor. The evidence consists mainly of the information given by the plaintiff at two videotaped interviews which have been played back at the main hearing. Defence counsel had the opportunity to put supplementary questions to A. through the interviewer during the second interview. Nevertheless, interviews of this kind should always be evaluated with caution (...). The court cannot base its evaluation of the credibility of the plaintiff and the reliability of the information submitted on impressions of the kind conveyed by an examination in court. [The applicant] has been prevented from putting questions to the plaintiff through his counsel before the court and the court has not been able to put questions to the plaintiff either. The interviews in issue are of good quality. There have been good opportunities to observe the plaintiff’s facial expressions and body language during the interview. Without any leading questions having been put to her, the plaintiff has given an account which in itself is consistent and which does not contain direct contradictions or statements that evidently cannot be true. The suspicion that A. has been subjected to an assault arose when, in November 2007, she told her mother about the incident. Nothing that has emerged in the case indicates that A. has been put under pressure by, for instance, her parents before she, at the police interview, gave an account of what she had been subjected to. The information that A., according to witness statements, had revealed before the police interview is concordant with the information she gave at the police interview. Moreover, there are no noticeable divergences between the accounts in the police interviews which took place with more than a month’s interval. During the interviews she has given a detailed account of what [the applicant] did and stated that she told [him] that it hurt. She has shown in which position she was lying and how [the applicant] was placed in relation to her when the assault occurred. The fact that A. revealed what had happened only in November 2007, whereas the incident is supposed to have occurred during the summer break of 2007, could be held against the credibility of her statements. Furthermore, it has emerged that A., immediately prior to telling about the assault in issue, made intercourse-style movements against the arm of her mother’s partner and explained that she “made babies” with him. There is no indication that any such movements occurred in connection with the incident now being examined. It has also emerged that A. a previous year was subjected to a sexual act, during which the perpetrator stated that he was showing “how one makes babies”. The account given by [the applicant] is not in itself contradictory. However, his statement that the plaintiff made advances to him appears, in the view of the District Court, to be less probable given her age and level of development. It also appears less probable that he would have occupied himself for such a long period of time with a younger girl who, according to his own opinion, was rather demanding, although it has emerged that he is helpful and sometimes baby-sits for others. The District Court places reliance in A.’s statements and finds beyond reasonable doubt that [the applicant] committed the sexual acts indicated by the prosecutor in the indictment.” The District Court then considered that the sexual acts in question – which consisted of touching A.’s genitals and trying to insert a finger into her vagina – were not comparable to intercourse. Consequently, the applicant could not be held liable for rape of a child. In her dissenting opinion, the presiding judge stated that, while the applicant’s account of events, for the reasons indicated in the judgment, appeared somewhat less plausible than that given by A., it did not contain any direct contradictions or demonstrable errors. She was of the opinion that a verdict of guilty required supporting evidence of some strength. However, the evidence given by various witnesses could not be regarded as independent of the police interviews and it did not in any important aspect strengthen the prosecutor’s claims. Consequently, in the absence of further information, the judge did not find that the applicant’s guilt had been proven beyond reasonable doubt. The applicant appealed to the Court of Appeal (hovrätten) of Skåne and Blekinge. Asserting that, when it is one person’s word against another’s, certain supporting evidence is required for a conviction, he maintained that the evidence invoked by the prosecutor did not lend such support to the statements made by A. In May 2008 the appellate court held a hearing, during which the videotaped police interviews with A. were played back. Audiotapes of the testimony given by witnesses before the District Court were also played back. Moreover, it took evidence from a new witness proposed by the defence, a neighbour and former partner of A.’s friend’s father. Again, the applicant did not request that A. give evidence during the hearing. In a judgment of 9 June 2008 the Court of Appeal upheld the applicant’s conviction and sentence. It restated some precedents of the Supreme Court (Högsta domstolen), according to which the outcome in cases concerning sexual offences mainly hinged on the evidence given by the plaintiff. The absence of observations by witnesses or technical evidence did not prevent the evidence from being considered sufficient for a conviction. However, to an increasing extent, a verdict of guilty required that the plaintiff’ “When it comes to the videotaped interviews that have been held with A., as indicated by the District Court, such interviews must be evaluated with caution, although there is no reason to direct any particular criticism against the interviews that have been held in the instant case. As the District Court has set out, there are no noticeable divergences between the statements given by A. on different occasions. Her account of what [the applicant] did and how she felt has been relatively exhaustive. It contains certain details which strengthen the impression that she is describing something that she has experienced. Such a detail is her description in the videotaped interviews that they are playing, that [the applicant] then fetches the mobile phone and that he, after having introduced the idea of nude photographing, takes photos of A. who, by then, has pulled down her knickers and shorts but is still dressed on the upper part of the body. Another detail is her description of the condom which the applicant is supposed to have put on one of his fingers. She makes a drawing of it and describes it as being sticky, transparent and soft. It is true that her mother has testified that it is not ruled out that, on some occasion, she might have told A. what a condom is, but there is no indication that A. earlier had a particular familiarity with the subject. The information given by A. at the interviews is supported by her mother’s statement. Her account has been very nuanced, and she has given her statement with rather unusual openness, thoughtfulness and moderation. She has reported that, in connection with a story-time, A. made movements against her mother’s partner’s arm and said that she “made babies” and that, when asked from whom she got that idea, she answered [the applicant]. Asked when they had talked about that, A. replied that it had happened when he had asked if she had seen nude photos of her vagina. When she had answered in the negative, he had, according to A., suggested that they take some photos, which she first refused but later agreed to. According to the mother, A. seemed to be ashamed that she had agreed to this. When asked by the mother if anything else had happened, A. had told the rest. A.’s account is also to some extent supported by the testimony given by A.’s father’s partner. A. has given information about the assault also to her, in particular on the introductory part. Are there then any circumstances which may undermine A.’s credibility? A. did not tell her mother about the incident until a number of months later. It is obvious, however, that her interpretation of the incident is that of a child, into which she has not read everything that a grown-up would. Accordingly, there is nothing striking about the fact that she told about the incident only on an occasion which can be said to have had a certain connection to the incident. She is supposed to have made intercourse-style movements against a relative on one occasion in addition to the above-mentioned. Moreover, on an occasion further back in time, A. told her parents that she, together with a friend and her elder brother, experienced something with certain rather innocent sexual connotations. However, neither this nor the other information that has emerged indicates that A. has any sexual interest or knowledge in the matter which goes beyond the ordinary. Furthermore, it has not been shown that A. has any motive to give incorrect information about the applicant. Against this background, the Court of Appeal finds, in agreement with the District Court, that the examination [of the case] should be based on the statements given by A. Through her statements it has been proven that [the applicant] made a caressing movement on the outside of A.’s genitals. However, her statements differ to some extent on the question of whether he twice tried to insert a finger or actually did insert it. Consequently, it has been proven only that he tried to do it.” The applicant appealed to the Supreme Court. He claimed that he had been convicted solely on the basis of the statements given by A., which were not supported by any other independent evidence. On 9 July 2008 the Supreme Court refused the applicant leave to appeal. Domestic provisions of relevance in the present case are found in the 1942 Code of Judicial Procedure (Rättegångsbalken; hereafter “the Code”) and in the Ordinance on Preliminary Investigations (Förundersöknings-kungörelsen, 1947:948 – “the Ordinance”). There is also some national case-law of interest. A preliminary investigation takes place whenever there is reason to believe that a crime has been committed. Chapter 23, section 10, of the Code includes provisions pertaining to the categories of persons allowed to attend an interview during a preliminary investigation. The suspect and his defence counsel are always entitled to attend an interview which takes place following a request made by the suspect himself. This right, however, does not manifest itself until a person has been informed of the suspicions against him in accordance with Chapter 23, section 18, of the Code. As far as other interviews are concerned, counsel for the defence may attend if his attendance will not harm the investigation. It is for the person who heads the preliminary investigation – a police officer or a public prosecutor – to decide who may attend a specific interview during the preliminary investigation. In cases where the suspect or his defence counsel are present during an interview, questions may only be asked in the order determined by the person in charge of the preliminary investigation (Chapter 23, section 11, of the Code). When a preliminary investigation has reached the point at which a person can be reasonably suspected of having committed a crime, the person in question must be notified of the suspicions against him, pursuant to Chapter 23, section 18, of the Code. Under the second paragraph of that provision, an interview or other form of investigation may be undertaken at the request of the suspect or his defence counsel if the measure is deemed to be of importance to the preliminary investigation as such. If a request for such an investigative measure is not granted, the reasons for the decision must be given. If the suspect makes a complaint, the issue is settled by the court (Chapter 23, section 19, of the Code). Interviews with children conducted in the course of a preliminary investigation are subject to special regulations. Thus, according to Chapter 23, section 10, of the Code, a child’s custodian should be present whenever a child under the age of 15 is questioned if this can be done without any harmful effects on the investigation. Further and more detailed provisions concerning the questioning of children are found in the Ordinance, section 17 of which provides that interviews with, inter alia, an injured party under the age of 18 must be conducted in such a manner that there is no danger that the interviewed person might be harmed. It is also stipulated in that section that particular care is to be exercised when the questioning concerns sexual matters. Furthermore, particular care has to be taken in order to ensure that the interview does not create a stir and that it does not become more intimate than the circumstances require. Questioning is, moreover, according to section 17 of the Ordinance, not allowed to take place on more occasions than is necessary with regard to the nature of the investigation and the best interest of the child. Section 18 of the Ordinance provides that interviews with children must be conducted by persons who are particularly apt to perform the task. In addition, section 19 provides that a person with special expertise in the field of child psychology or interview psychology may assist at the questioning or comment on the value of the child’s testimony. Whenever the evidence of a witness below the age of 15 is used in a criminal case, the court must determine, taking account of all relevant circumstances, whether the child should testify (Chapter 36, section 4, of the Code). There is no corresponding provision applicable to children who are in the position of being the injured party. In practice, however, such evidence is normally presented to the court in the form of a video-recording of the police interview, which is played back during the court’s main hearing. In allowing this to take place, the court applies Chapter 35, section 14, of the Code, by which a statement made to the police or to the prosecutor or otherwise out of court may be used in evidence in a trial only if this is specifically prescribed, if the person who has submitted the statement cannot be heard before the court or if there are particular reasons for the statement to be relied on, regard being had to the costs or inconvenience that a hearing before the court may entail on the one hand and the advantages of a hearing before the court, the importance of the statement and all other relevant circumstances on the other hand. On a few occasions the Supreme Court has examined the question of evaluation of evidence in cases where the prosecutor’s indictment has been based to a large extent on videotaped police interviews with the injured party. In such situations, the Supreme Court has stated that the fact that the courts have not had the opportunity to assess the credibility and reliability of a witness or an injured party, and that the accused has not been able to question that person, ought to entail that the statements are examined and evaluated with particular caution. In the published cases NJA 1993 p. 68 and NJA 1993 p. 616 the Supreme Court came to the conclusion that the videotaped interviews, combined with other supporting evidence, were sufficient for a conviction. In the case NJA 1992 p. 532, the injured party had not attended the main hearing but the Court of Appeal had considered that the information submitted by the injured party to the police had to be given credit and therefore convicted the defendant of robbery. The Supreme Court, on the other hand, emphasised that Article 6 of the Convention and its application and interpretation was of major importance in respect of the application of Chapter 35, section 14, of the Code. Thus, in the light of the Court’s case-law, the Supreme Court found that that provision of the Code should be applied more restrictively than was called for by its wording and what appeared to be the original intentions behind the provision. According to the Supreme Court, the lower courts had applied the provision in such a way that the defendant had not been afforded a fair trial in accordance with the Convention and therefore referred the case back to the Court of Appeal for re-examination. The Supreme Court has in a number of cases examined the question concerning the assessment of evidence in cases regarding sexual offences mainly hingeing on the evidence given by the plaintiff. In such situations, the Supreme Court has stated that in order for the courts to find the guilt of the accused beyond reasonable doubt, it is not sufficient that the statements of the injured party are found to be more credible than the applicant’s story. The Supreme Court has, however, stressed that even if direct witnesses and technical evidence are generally missing in such cases, this does not prevent a conviction if the injured party’s statements are found throughout to be credible and compatible with other circumstances, for example testimonies regarding the injured party’s behaviour after the incident (see, for example, NJA 2005 p. 712 and NJA 2009 p. 447). | 0 |
dev | 001-22631 | ENG | FRA | ADMISSIBILITY | 2,001 | C.M. v. FRANCE | 1 | Inadmissible | null | The applicant, C. M., is a French national, born in 1939 and living in Grande Synthe (France). He is represented before the Court by Mr W. Watel, a lawyer practising in Lille. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is the owner of a private motor vehicle which he also uses in the course of his professional activities with the permission, granted on 1 October 1991, of the regional director for industry, research and the environment. On 22 September 1994 the applicant’s son, accompanied by a friend, was driving the car when he was stopped for a customs inspection. The customs officers found nineteen grams of heroin, whereupon the applicant’s son and his friend admitted that they had been to the Netherlands to acquire drugs for their personal use. On 23 September 1994 the Lille Criminal Court convicted the applicant’s son of drug smuggling and drug use. The Court also ordered that the vehicle used to commit the smuggling offence should be forfeited to the customs authorities. The applicant’s son lodged an appeal against the judgment relating solely to the forfeiture of the vehicle. On 18 January 1995 the Douai Court of Appeal upheld the judgment ordering the forfeiture on the following grounds: “The vehicle was lawfully seized under Article 323 of the Customs Code. Under Article 414 of the Customs Code, any smuggling offence involving prohibited goods results in the forfeiture of the vehicle. Liability to forfeiture is incurred whenever an offence has been committed (Court of Cassation, Criminal Division – “Cass. Crim.”, 1980). Moreover, it is clear that the vehicle was used to commit the offence. The case law provides the following clarification of the position: – The statutory provision requiring the forfeiture of vehicles used for smuggling is general and absolute and makes no exception in respect of vehicles without which it would have been impossible to bring smuggled goods in or out. It suffices that they were used in one way or another. (Cass. Crim. 1956) – Courts which find that a vehicle was used for smuggling cannot refrain from ordering their forfeiture save where they find extenuating circumstances as provided by Article 369 of the Customs Code, which makes no reference to Article 463 of the former Criminal Code and is not covered by section 323 of Law no. 92-1336 of 16 December 1992. Accordingly, this court allows the authorities’ application and upholds the judgment of the Lille Criminal Court since, in view of the seriousness of the offences of which he is accused, [the applicant’s son] is not entitled to plead extenuating circumstances under customs law.” The applicant was not notified of either the judgment of 23 September 1994 or that of 18 January 1995. In a letter of 30 September 1994 the applicant’s lawyer asked the customs authorities to return the applicant’s private vehicle to him along with some personal effects (a pair of gloves, a pair of hunting boots, two knives and a pack of cards). On 28 October 1994 the applicant’s lawyer sent a further letter repeating his request and stating that the applicant refused to pay any sum, however small, to recover his vehicle. In a letter of 18 November 1994 the interregional director of customs stated that the applicant could recover his personal effects, as he had already been told during a telephone conversation on 26 September 1994. Regarding the vehicle, the director informed him that he was “prepared to accept a friendly settlement for the transfer of the vehicle ... in return for payment in cash of FRF 3,000 (three thousand francs)”. The relevant provisions of the Customs Code read as follows: “1. When seized goods are not prohibited an offer to release the vehicle from judicial seizure shall be made subject to security from a reliable guarantor or deposit of the value. 2. That offer and the reply thereto shall be recorded in the official report. 3. The vehicle shall be returned without the need for a guarantor or a deposit to any owner acting in good faith who has entered into a haulage, rental or leasing contract with the offender in accordance with the laws and regulations in force and the normal practice of the profession. However, restitution is subject to the reimbursement of any costs incurred by the customs authorities for the holding and safe keeping of the seized vehicle.” “District courts shall adjudicate disputes relating to the payment or reimbursement of duties, applications to set aside an order to pay and other customs cases not falling within the jurisdiction of the criminal courts.” “1. Seized or forfeited objects may not be claimed by the owners, nor may the value of the vehicle, whether deposited or not, be claimed by creditors, including secured creditors, save through action against the party who committed the customs offence. 2. Once time limits for lodging appeals, third party applications and sales have expired, all actions for restitution and other actions shall be inadmissible.” The relevant provisions of the Code of Judicial Organisation read as follows: “District Courts shall hear the following cases, subject to appeal: (9) Disputes relating to refusal to pay customs duties, applications to set aside an order to pay, failure to discharge liabilities imposed by transit bonds and other customs cases; ...” Finance Amendment Law no. 81-1179 of 31 December 1981 amended Article 326 of the Customs Code by adding a third paragraph providing for the establishment of an exceptional procedure where owners have acted in good faith. The reform was intended to resolve problems in applying Article 376 § 1 resulting from the increase in vehicle rental and leasing contracts by allowing the situation of various vehicle rental, leasing and public transport or freight companies to be resolved by absolving them from guarantor and deposit requirements as long as there was proof of good faith and a contract had been negotiated. This statutory system has been progressively supplemented by case-law. The Court of Cassation has clarified that this was the only legal remedy that an owner acting in good faith could use to have his vehicle restored as a civil claim in criminal proceedings against a person who had committed a customs offence would be inadmissible because the loss or damage complained of was not the direct result of the offences at issue (Cass. Crim., 6 March 1989, Bulletin criminel – “Bull. crim.” no. 101). On 12 January 1987 the Criminal Division also established the principle that paragraphs 1 and 3 of Article 326 should be read separately: “Under Article 326 § 3 of the Customs Code, the vehicle must be returned without the need for a guarantor or a deposit to any owner acting in good faith who has entered into a haulage, rental or leasing contract with the offender in accordance with the laws and regulations in force and the normal practice of the profession, regardless of the nature of the goods transported.” (Bull. crim. no. 8). Furthermore, in a judgment of 9 April 1991 the Court of Cassation established the principle that the district courts had jurisdiction to hear applications for restitution under Articles 326 and 341 bis-2 of the Customs Code which, when combined with Article 357 of the Code, “assign[ed] jurisdiction to rule on the restitution of vehicles seized during these operations to the district court of the place in which the seizure took place. Under these circumstances and provided that the ship-owner was not implicated in the criminal proceedings the impugned judgment rightly upheld the District Court’s decision that it had jurisdiction”. In this ruling the Court of Cassation also specified that the provisions of Article 326 applied both to the seizure carried out by the customs authorities and to the forfeiture ordered by the courts and moreover that the civil courts were under no obligation to defer their decision pending the outcome of the criminal proceedings. “Under certain circumstances specified therein, Article 362 § 3 of the Customs Code entitles owners acting in good faith of vehicles seized because they were used for smuggling to have their vehicle returned without the need for a guarantor or a deposit even when a criminal court has ordered their forfeiture. It follows that criminal proceedings during which such orders are issued cannot have any influence on any future decisions in civil proceedings to establish ownership.” (Cass. Crim. 9 April 1991, Bull. crim. no. 125; JCP 1991-IV, p. 226). The jurisdiction of the district courts was reconfirmed in a judgment of 21 February 1995 (Crassat case) in the following terms: “District courts hear disputes relating to the payment or reimbursement of duties, applications to set aside an order to pay and other customs cases not falling within the jurisdiction of the criminal courts. Under Articles 356 and 357 of the Customs Code, the criminal courts hear cases relating to petty and lesser indictable customs offences and all customs matters raised as a defence. It follows that the district courts have primary jurisdiction to hear these cases provided that they fall within the jurisdiction of the ordinary courts.” In this judgement, the Criminal Division of the Court of Cassation also extended the scope of Article 326 § 3, taking the view that this provision allowed any vehicle to be returned to owners acting in good faith, without the need for a guarantor or a deposit, even if there was no contract between the owner and the offender who had used the vehicle. | 0 |
dev | 001-105624 | ENG | ITA | CHAMBER | 2,011 | CASE OF ŠNEERSONE AND KAMPANELLA v. ITALY | 2 | Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 8;No violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - award | András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque | 6. The applicants were born in 1973 and 2002 respectively and live in Rīga. 7. In 2002 Marko was born to the first applicant in Italy. His father was an Italian national, who was never married to the first applicant but who has never disputed his paternity of Marko. In 2003 Marko’s parents separated and the applicants moved to a separate residence in Cerveteri, Italy. The applicants allege that ever since Marko’s birth he has in practice been in the exclusive care of his mother, and his father’s participation in his upbringing has been minimal. 8. At the request of the first applicant, on 20 September 2004 the Rome Youth Court (Tribunale per i minorenni di Roma) granted custody of Marko to his mother because the ongoing conflict between the parents made joint custody unfeasible. However, the court held that the father had a right to have his son stay at his home on specified days of the week and also whenever the first applicant was travelling outside Rome for a length of time exceeding one week or outside Italy for any length of time. The decision came into force on the day it was adopted. 9. Marko’s father appealed against that decision, requesting that joint custody be granted or that he be granted sole custody and that the first applicant be forbidden to take the child abroad or to change her place of residence without the father’s prior approval. The Youth Section of the Rome Court of Appeal (Corte d’appello di Roma. Sezione per i minorenni) rejected his request in a decision of 1 March 2005, noting, inter alia, that the child was developing well and that it was impossible to ensure his development by granting sole custody to the father. Furthermore, it was noted that the father’s concern that the first applicant might move to Latvia and take their son with her was unfounded because a judge in a guardianship hearing (giudice tutelare, “the guardianship judge”) had previously refused to issue a passport to Marko and also because his mother had strictly adhered to the ruling of the first-instance court and had left the child in his father’s care when travelling to Latvia. 10. On 24 June 2005 the guardianship judge granted an authorisation to issue a passport to Marko. On 11 July 2005 Marko’s father appealed against that decision. On 14 November 2005 the Rome Youth Court rejected Marko’s father’s appeal, because there was no evidence that the first applicant was planning to leave Italy with the child. 11. On 3 February 2006 the Court (Tribunale) of Civitavecchia ruled that Marko’s father had to make child support payments. The decision noted, inter alia, that the father had previously avoided financially supporting his son. Marko’s father failed to make the ordered payments and on 8 April 2006 the first applicant lodged a complaint about this with the Italian police. 12. It appears that because of Marko’s father’s failure to financially support the applicants their only income was money which the first applicant’s mother was sending from Latvia. However, in December of 2005 the first applicant’s mother informed her that she was no longer able to provide financial support. According to the applicants it was for that reason that they had no other choice but to return to Latvia in April of 2006. The applicants indicate that they subsequently continued to return to Italy for brief periods of time. According to the Italian Government, they have never been back. 13. On 7 February 2006 Marko was granted Latvian citizenship, since it was established that his mother’s permanent residence at the time of his birth had been in Latvia. Subsequently, the first applicant registered Marko’s permanent residence in an apartment in Rīga belonging to her. 14. On an unspecified date Marko’s father requested the Rome Youth Court to grant him interim sole custody of Marko and to order his return to Italy. 15. On 5 June 2006 that court issued a decision in which it upheld the father’s request. The decision noted that the first applicant’s actions had been harmful to the child. The court further held that it did not have jurisdiction to order the child’s return to Italy but indicated that Marko had to reside with his father. The decision finally provided that a hearing would be held on 25 October 2006 and that Marko’s father had an obligation to inform the first applicant of the court’s decision before 20 September 2006. 16. The applicants submit that the first applicant was not informed of the hearing that had been scheduled, nor did she receive a summons to it. The applicants further submit that Marko’s father had never requested full custody, but instead had asked the court to re-establish his rights of contact with the child and to order his return to Italy. The first applicant alleges that she only learned about the adopted decision in March of 2007. 17. On 16 January 2007 (by what appears to be a clerical error the document is dated 16 January 2006) the Italian Ministry of Justice, in its capacity as the Central Authority under Article 6 of the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), issued a request for Marko to be returned to Italy. 18. After receiving the request, the Latvian Ministry of Child and Family Matters (Bērnu un ģimenes lietu ministrija), which is the Latvian Central Authority within the meaning of the Hague Convention, initiated civil proceedings against the first applicant in accordance with Article 7 of the Hague Convention. The Rīga City Vidzeme District Court, which had been allocated the case, requested the Rīga City Orphans’ Court (Rīgas bāriņtiesa) to evaluate the applicants’ residence and to issue an opinion concerning the possibility of returning Marko to his father in Italy. After visiting the applicants’ residence, by a decision of 20 March 2007 the Orphans’ Court established that the child’s living conditions were beneficial for his growth and development. It further noted that Marko had adjusted to living in his mother’s residence and that she was ensuring his full physical and intellectual development. Accordingly, the Orphans’ Court concluded that the child’s return to Italy would not be compatible with his best interests. 19. That conclusion was also supported by the findings of a psychologist, whose opinion had been requested by the applicants’ lawyer. In a report dated 30 March 2007 the psychologist concluded that severance of contact between Marko and his mother was not to be allowed, in that it could negatively affect the child’s development and could even create neurotic problems and illnesses. 20. By a letter of 6 April 2007, the Italian Central Authority attested to the Latvian Central Authority that if any of the circumstances mentioned in Article 13 (b) of the Hague Convention arose Italy would be able to activate a wide-ranging child protection network which could ensure that Marko and his father received psychological help. 21. On 11 April 2007 the Rīga City Vidzeme District Court issued a decision by which it refused the father’s request to return Marko to Italy. That court based its decision on the Hague Convention and Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (“the Regulation”). The court held that the removal of Marko had been wrongful within the meaning of the Hague Convention and the Regulation, since it had been carried out without his father’s permission. It was further noted that it was not expedient to hear Marko’s own opinion, since he was four years old at the time and was unable to form an opinion about which of his parents he should live with. 22. The court considered it necessary to assess whether the circumstances provided for in Article 13 (b) of the Hague Convention existed. Its conclusion was that those circumstances existed. It noted the ties between Marko and his mother and the fact that he had settled well in Latvia and considered that his continued residence in Latvia was essential for his development. The Vidzeme District Court found that the provisions of Article 11 (4) of the Regulation had not been fulfilled, because it was financially impossible for the first applicant to follow Marko to Italy if he were returned there. Furthermore, the guarantees provided for by Italy could not ensure that the child would not suffer psychologically and that his mental health would not be prejudiced. Accordingly the court applied Article 13 (b) of the Hague Convention and refused the father’s request. 23. On 24 May 2007 the Rīga Regional Court adopted a final decision, by which it rejected the father’s appeal against the decision of the Vidzeme District Court. In substance the Regional Court agreed with the conclusions of the first-instance court, adding that the guarantees offered by the Italian Central Authority concerning the protection available to Marko after his potential return to Italy were too vague and non-specific. It was also mentioned that Marko’s father had made no effort to establish contact with his son ever since the applicants’ departure from Italy. 24. On 4 June 2007 the first applicant requested the Rīga City Vidzeme District Court to grant her sole custody of Marko. On 8 January 2008 the Rīga Custody Court issued an opinion in which it concluded that granting sole custody of Marko to his mother was in his best interests. The Custody Court indicated among other considerations the fact that Marko’s father had not seen his son since 2006. 25. On 7 August 2007 Marko’s father lodged a request with the Rome Youth Court, which was based on Article 11 (4), (7) and (8) of the Regulation, to issue an immediately executable decision ordering Marko’s return to Italy. 26. On 11 December 2007 the first applicant submitted her observations to that court, in which she acknowledged that she had left Italy because of an ongoing conflict with Marko’s father and because of her difficult financial situation. She noted that Marko’s father had never travelled to see his son in Latvia; however, she stated that the applicants were always available to come to Italy to meet Marko’s father during school holidays. In conclusion, she requested that the court order child support payments in the amount of 700 euros (EUR) per month. 27. In the context of separate proceedings, on 11 January 2008 the Civitavecchia Court made a judgment concerning the first applicant’s request for child support payments and ordered Marko’s father to pay the first applicant EUR 4,800 plus interest, starting from 14 October 2004. 28. By a decision of 21 April 2008 the Rome Youth Court upheld the father’s request. It considered that the only role left to it by Article 11 (4) of the Regulation was to verify whether adequate arrangements had been made to secure the protection of the child from any identified risks within the meaning of Article 13 (b) of the Hague Convention after his or her return. After considering the first applicant’s submissions, the court noted that the father had proposed that Marko would stay with him, while the first applicant would be authorised to use a house in Aranova for periods of fifteen to thirty consecutive days during the first year and subsequently for one summer month every other year (the first applicant would have to cover her own travel expenses and one half of the rent of the house in Aranova), during which time Marko would be staying with his mother, while the father would retain the right to visit him on a daily basis. Marko would be enrolled in a kindergarten which he had attended before his removal from Italy. He would also attend a swimming pool he had used before his departure from Italy. The father furthermore undertook to ensure that the child would receive adequate psychological help and would attend Russian-language classes for Russian children. The court considered such an arrangement adequate to fulfil the requirements of the Regulation and ordered an immediate execution of its decision to return Marko to Italy and to have him reside with his father. The court also pointed out that it would be preferable if the first applicant accompanied Marko on his way to Italy but, should that prove to be impossible, his return would be arranged by the Italian embassy in Latvia. Due to the urgent nature of the case, the decision was pronounced to be immediately executable. 29. On 18 June 2008 (in what appears to be a clerical error, the date indicated in the document is 18 June 2009) the first applicant lodged a request with the Youth Court to suspend the execution of its decision. She argued that Marko had not been heard by the tribunal and that the Youth Court had not taken into consideration the arguments which the Latvian courts had used in their decisions when applying Article 13 of the Hague Convention. 30. On 20 June 2008 the first applicant lodged an appeal against the decision of the Rome Youth Court of 21 April 2008. In her appeal she requested that the execution of that decision be suspended; that the appeal court hear Marko; that there be an order that she retain sole custody of Marko; and that Marko’s father be ordered to pay EUR 700 per month in child support payments. 31. On 22 July 2008 the Rome Youth Court adopted a decision in which it rejected the first applicant’s request to suspend the execution of the decision of 21 April. That court considered that it was not appropriate to question the child, taking into account his young age and the level of maturity. Furthermore, it considered that Article 42 of the Regulation did not oblige it to hear the parties in person. It remarked that all of the decisions taken by the Latvian courts had been duly taken into consideration. Finally, the court upheld the father’s request to issue a return certificate in accordance with Articles 40, 42 and 47 of the Regulation. The certificate was issued on 29 July 2008. 32. On 14 August 2008 the Italian Central Authority sent a letter to the Latvian Central Authority, forwarding the Youth Court’s decision of 22 July 2008 and inviting it to advise the Italian side on “the initiatives that will be taken in order to enforce the return order made by the Youth Court in Rome”. 33. On 27 August 2008 a psychologist issued another report on Marko’s psychological state. The report concluded that the child had developed certain psychological problems in connection with his father’s request to return him to Italy. It further reiterated the conclusion from the earlier report, that Marko had strong emotional ties with his mother, the severance of which was impermissible. 34. On 10 September 2008 the first applicant received information from the Latvian Central Authority about the request made by the Italian Central Authority. The first applicant was informed that Latvia had an obligation to enforce the 21 April 2008 decision of the Rome Youth Court. 35. On 13 February 2009 the first applicant submitted a request to the Rīga City Vidzeme District Court, requesting it to indicate interim measures and not to allow Marko’s return to Italy “until he himself agrees to return to his father in Italy”. Further, she requested the court to require the Rome Court of Appeal and the Rome Youth Court to surrender their competence to the Vidzeme District Court, since that court had already, on 4 June 2007, been allocated a still pending case concerning the granting of sole custody of Marko to his mother, and also because the child’s permanent residence was in Latvia. 36. On 18 February 2009 the Vidzeme District Court adopted a decision in which it decided not to proceed with the first applicant’s request concerning the question of Marko’s custody, since it considered that the first applicant’s appeal against the Rome Youth Court’s decision of 21 April 2008, which was pending at the time before the Rome Court of Appeal, concerned the same subject matter, with the same parties involved. 37. On 21 April 2009 the Rome Court of Appeal adopted a decision concerning the first applicant’s appeal against the Rome Youth Court’s decision of 21 April 2008. The appeal court first of all observed that pursuant to Article 11 (8) of the Regulation (see below, paragraph 45) it had jurisdiction to decide the question of the child’s return to Italy. It then went on to observe that the first-instance court had correctly implemented the procedure set out in Article 11 (7) of the Regulation (see below, paragraph 45), as attested by the reasoned opinion of the European Commission (see below, paragraphs 39-45). The court continued by observing that the decision to grant Marko’s father sole custody had been motivated by the first applicant’s behaviour when she had chosen to take the child to Latvia and by the father’s undertaking to take care of the child in Italy. The Court of Appeal therefore upheld the decision of the Rome Youth Court and ordered that after the child’s return to Italy he be enrolled in a primary school. 38. On 10 July 2009 the bailiff of the Rīga Regional Court charged with the execution of the Rome Youth Court decision of 21 April 2008 invited Marko’s father to provide assistance in the execution of that decision by reestablishing contact with his son. It appears that Marko’s father has not responded to that request in any way. 39. On 15 October 2008 the Republic of Latvia brought an action against Italy before the European Commission in application of Article 227 of the Treaty Establishing the European Community. Latvia alleged, in particular, that the above-described proceedings in Italy (the decision adopted on 21 April 2008 and the issuing of the return certificate in July 2008) did not conform to the Regulation, in that neither of the applicants had been heard by the Rome Youth Court on 21 April 2008, and also that the Rome Youth Court had ignored the decisions of 11 April 2007 of the Rīga City Vidzeme District Court and of 24 May 2007 of the Rīga Regional Court. 40. On 15 January 2009 the Commission issued a reasoned opinion. It held that Italy had violated neither the Regulation nor the “general principles of the Community law”. In so far as is relevant to the case before the Court, the Commission held as follows. 41. At the outset it reiterated, where Latvia was disputing the legality of the actions of an Italian authority with a judicial function, the scope of the Commission’s review was very limited. The Commission could only review matters of procedure, not substance, and it had to respect the decisions made by the Italian courts in the exercise of their discretionary powers. 42. Concerning the argument of the Republic of Latvia that the decision of 21 April 2008 had been adopted without attempting to obtain Marko’s opinion, the Commission stressed that it followed from the Regulation, the United Nations Convention on the Rights of the Child (“the UN Convention”), the Hague Convention and the Charter of Fundamental Rights of the European Union that hearing a child’s opinion with regard to questions concerning that child was a fundamental principle. However, that principle was not absolute. What had to be taken into account was the level of the child’s development. That level was not and could not be defined in any international instruments, therefore the national authorities retained wide discretion in such questions. The Commission held that the Italian Central Authority had used that discretion and indicated in the certificate of return that it had not been necessary for the Italian courts to hear Marko. Therefore, none of the international instruments that had been invoked by Latvia had been breached. 43. Latvia further criticised the fact that the decision of 21 April 2008 had been adopted without duly taking into account the position of the first applicant, and that the decision had been adopted without hearing either of the parties, including the first applicant, who was neither informed of the time of the forthcoming hearing nor invited to take part in it. The Commission noted that the decision of 21 April 2008 had been adopted in written proceedings, without hearing oral submissions of either of the parties, which was fully in conformity with the applicable Italian procedural legislation. The Commission interpreted Article 42 (2) (b) of the Regulation (see below, paragraph 51) in the light of the Court’s case-law (referring in particular to Dombo Beheer B.V. v. the Netherlands, 27 October 1993, § 32, Series A no. 274), and considered that the use of written proceedings was permissible as long as the principle of equality of arms was observed. The Commission observed that the first applicant had been given an opportunity to submit written observations on equal grounds with Marko’s father and thus neither the Regulation nor the UN Convention had been violated. 44. Lastly, Latvia criticised the decision of 21 April 2008 and the related return certificate for ignoring the Latvian authorities’ reasons for refusing to order Marko’s return to Italy. The Commission indicated that its role was not to analyse the substance of the Italian authorities’ decisions – it was limited to appraising the compliance with the procedure which led to the adoption of those decisions with the procedural requirements of the Regulation. Nothing in the Regulation forbade the Italian authorities to come to a conclusion that was opposite to the one reached by the Latvian authorities. Quite to the contrary, the Commission considered that the Regulation gave the country of the child’s residence prior to the abduction “the final say” in ordering the return, even if his or her new country of residence had declined to order the return. In this regard the Commission noted that the Rīga Regional Court, when adopting the decision of 24 May 2007 (see above, paragraph 23), had referred to the Law of Civil Procedure, section 64419 (6) (2) of which permits refusal to return a child if the child is well settled in Latvia and his or her return is not in his or her interests. The Commission questioned the Latvian court’s alleged failure to invoke the “much more binding” Article 13 of the Hague Convention, which in their opinion demonstrated that the Latvian courts had devoted attention to Marko’s situation in Latvia instead of the potential consequences of his return to Italy. In short, the Commission had “not discovered any indications” that life in Italy together with his father would expose Marko to physical or psychological harm or otherwise place him in an intolerable situation. What is more, the Commission considered that the Rome Youth Court in its decision of 21 April 2008 had directly addressed the Rīga Regional Court’s concerns that the measures envisaged for Marko’s protection upon his return to Italy were too vague – the Italian court had set out specific obligations on the father which would allow for balanced development of the child and for him to have contact with both parents. 45. In conclusion the Commission conceded that the decision of 21 April 2008 did not contain a detailed analysis of either the arguments of the first applicant or of those of Marko’s father. However, it considered that the Regulation did not require such an analysis. Therefore, the exact procedure to be followed in that respect was left to the national courts’ discretion. Taking that into account, it was found that neither Latvia nor the Commission could dispute the particular formulation of the Italian court’s decision. 46. The Hague Convention, which has been ratified by Latvia and Italy, provides, in so far as relevant, as follows. “The removal or the retention of a child is to be considered wrongful where – a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.” “The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.” “A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities. [..]” “Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective State to secure the prompt return of children and to achieve the other objects of this Convention. In particular, either directly or through any intermediary, they shall take all appropriate measures – [..] f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access; [..]” “The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.” “Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.” “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.” “The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.” 47. Paragraph 17 of the preamble of the Regulation explains its scope, in so far as it is relevant to this case, as follows: “In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained.” 48. With regard to jurisdiction in cases of child abduction, the Regulation, in Article 10, provides, in so far as is relevant, as follows: “In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and: ... (b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met: (i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained; ... (iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.” 49. Article 11, which is specifically singled out in the preamble, provides as follows: “1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention [..], in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply. 2. When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity. 3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law. Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged. 4. A court cannot refuse to return a child on the basis of Article 13 (b) of the [..] Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return. 5. A court cannot refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard. [..] 7. Unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seized by one of the parties, the court or central authority that receives [a copy of an order on non-return pursuant to Article 13 of the Hague Convention and of the documents relevant to that order] must notify it to the parties and invite them to make submissions to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of the child. [..] 8. Notwithstanding a judgment of non-return pursuant to Article 13 of the [..] Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child.” 50. Pursuant to Article 40 (1) (b) of the Regulation, its Section 4 applies to “the return of a child entailed by a judgment given pursuant to Article 11 (8)” 51. Article 42 in Section 4 provides the following: “1. The return of a child referred to in Article 40 (1) (b) entailed by an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2. Even if national law does not provide for enforceability by operation of law, notwithstanding any appeal, of a judgment requiring the return of the child mentioned in Article 11 (b) (8), the court of origin may declare the judgment enforceable. 2. The judge of origin who delivered the judgment referred to in Article 40 (1) (b) shall issue the certificate referred to in paragraph 1 only if: (a) the child was given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity; (b) the parties were given an opportunity to be heard; and (c) the court has taken into account in issuing its judgment the reasons for and evidence underlying the order issued pursuant to Article 13 of the 1980 Hague Convention. [..]” 52. As concerns the enforcement of judgments requiring the return of a child, Article 47 of the Regulation provides the following: “1. The enforcement procedure is governed by the law of the Member State of enforcement. 2. Any judgment delivered by a court of another Member Stat and [..] certified in accordance with [..] Article 42 (1) shall be enforced in the Member State of enforcement in the same conditions as if it had been delivered in that Member State. In particular, a judgment which has been certified according to [..] Article 42 (1) cannot be enforced if it is irreconcilable with a subsequent enforceable judgment.” 53. Lastly, Articles 60 and 62 of the Regulation provide that the Regulation “shall take precedence” over the Hague Convention “in so far as [it concerns] matters governed by this Regulation” and that the Hague Convention continues “to produce effects between the Member States which are party thereto”. | 1 |
dev | 001-23775 | ENG | SWE | ADMISSIBILITY | 2,004 | WRETLUND v. SWEDEN | 3 | Inadmissible | Nicolas Bratza | The applicant, Ms Inga-Lill Wretlund, is a Swedish national who was born in 1958 and lives in Påskallavik. She was represented before the Court by Mr B. Villner, a trade union lawyer practising in Stockholm. The respondent Government were represented by Ms I. Kalmerborn, Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is since 1986 employed as an office cleaner at a nuclear plant in Oskarshamn. Assigned to clean the offices at the plant, she is not working in an area where she might be subjected to radioactivity and is thus not obliged to undergo any radiological examinations under the security rules for nuclear plants in Sweden. The applicant is a member of the Swedish Electricians' Union (Svenska elektrikerförbundet) which has approximately 170 members working at the nuclear plant. Her employer – OKG Aktiebolag (hereinafter “OKG”), a privately owned limited liability company that owns the plant – is a member of the Energy Companies' Employers Confederation (Energiföretagens Arbetsgivareförening). The central collective agreement in force between the two organisations concerned (Kraftverksavtalet) does not provide for any drug or alcohol tests on the employees. In 1991, following discussions within a working group which included the OKG's medical doctor and representatives of the company and the four trade unions represented at the company, a drug policy programme was agreed upon which stipulated, inter alia, that job applicants should undergo a drug test in connection with the health examination before they could be employed. In the autumn of 1993 the working group proposed that those already employed should also undergo tests. OKG and three of the four trade unions then concluded local collective agreements which introduced at the plant a drug policy programme involving compulsory drug and alcohol tests for all the members of those unions. OKG wished to conclude a similar agreement with the applicant's trade union but the union declared on 20 December 1993 that it did not accept it. Nevertheless, in 1994 OKG decided that also members of the applicant's trade union should be subjected to drug and alcohol tests. As from March 1995 contractors' employees who perform work for OKG are also tested. Further negotiations on this issue with the applicant's union, held at local and central level, were fruitless and terminated at the end of 1995. The drug policy programme, which was replaced by a new, essentially identical, programme in December 1995 and which is contained in an instruction issued by OKG (Vår syn på alkohol och narkotika), involves the taking of urine samples from the employees every third year. The tests aim to detect the use of both drugs and alcohol but the drug part of the tests concerns only the presence of cannabis. The employee is notified about a week in advance of the test, which consists of delivering a urine sample in private. The sample is taken care of by an occupational health nurse working under instructions from the hospital at Huddinge and the sample is sent to a laboratory at the hospital for analysis. The employee should state on a form, inter alia, what kind of medication, if any, he or she has taken during the preceding week. He or she further signs a referral, thereby consenting to the testing and giving permission to the laboratory to inform the occupational health service of the result. By signing a special form, the employee may also consent to his or her immediate supervisor being informed. If a test is positive, the employee will be requested to talk to the company doctor who shall provide information on possible rehabilitation measures, which may include detoxification and transfer to other duties, if the latter is motivated by reasons of security and safety. The last consequence of continued drug or alcohol abuse may be dismissal. According to the programme, a refusal to undergo the test is treated as a positive test result. However, if an employee refuses to participate in the testing for reasons of principle and there are no signs of drug abuse, the employee will not be dismissed. The OKG staff was informed of the programme, both orally and in writing, through an extensive information campaign. In 1996 the Swedish Electricians' Union introduced proceedings against OKG and the Energy Companies' Employers Confederation before the Labour Court (Arbetsdomstolen) seeking a declaratory judgment that the applicant was not obliged to participate in the drug and alcohol tests. The trade union claimed that OKG had no right to require that the applicant undergo such tests. The union argued that the tests were in breach of Article 8 of the Convention, the collective agreement in force and the Swedish Secrecy Act (Sekretesslagen; 1980:100). Should the tests be considered not to be in breach of the collective agreement, the union argued, in the alternative, that the matter must be considered as unregulated. Furthermore, the union held that the individual employment contract between OKG and the applicant did not provide for such tests. Also, the union alleged that the tests were unjustified having regard to the applicant's tasks at the nuclear plant. By a judgment of 26 August 1998 the Labour Court found that the applicant was obliged to participate in the drug test but not in the alcohol test. The Court first noted that there was no legislation specifically regulating the right of employers to submit employees to drug tests against their will. It referred, however, to an earlier case before the Labour Court (AD 1991 no. 45) which concerned the question whether two employees in a company that assembled scaffolding had been lawfully dismissed due to their refusal to submit to drug testing. In that case, the court had found that the employees had been obliged under the individual employment contracts to participate in the testing. In the case at hand, the Labour Court found that a general prohibition against drug testing could not be derived from the right to respect for family life under Article 8 of the Convention. It stated, however, that in certain circumstances such testing might be incompatible with the Convention and therefore contravene Swedish law. Circumstances of relevance were, for example, the employer's interest in carrying out drug tests, the degree of interference with the individual's integrity and the way in which the testing was performed. The court further considered that the tests in question were naturally connected with the type of business conducted by OKG and, consequently, that the right to order employees to undergo such tests could be seen as part of the company's right to manage and organise the work according to the central collective agreement, Kraftverksavtalet. Nevertheless, an employee not bound by a collective agreement on drug testing could not be obliged to submit to such testing without limitations. In balancing the interests of the company and the individual, the Labour Court first noted that OKG was running a nuclear power plant which entailed certain risks specific to this activity and which was subjected to far-reaching demands on security imposed by the relevant public authorities. The National Nuclear Power Inspectorate (Statens kärnkraftsinspektion) had expressed the necessity of conducting drug tests as a means of upholding a drug-free environment at such plants. Moreover, the Labour Court noted that OKG was under an obligation, under the Work Environment Act (Arbetsmiljölagen, 1977:1160) to take measures preventing illnesses and accidents at work. The Labour Court thus concluded that OKG had a strong interest to carry out the tests in question in order to maintain a drug-free work environment. It observed that drug testing was made at all the Swedish nuclear power plants. Furthermore, according to the court, it would be impractical to make a distinction between employees working in areas where there were special security hazards and other employees. It was moreover possible that employees would be moved from a workplace with little risk to another one where there was a specific risk. In addition, having regard to the character of OKG's business, there was an interest in showing to the outside world that the nuclear power plant was absolutely drug-free. Turning to the interests of the individual, the court had regard to the procedures for the tests and considered that the possible infringement of the test procedures as such on the individual's integrity was of very little significance. It further noted that the fact that there did not appear to be any drug abuse at OKG did not as such make the testing unnecessary; on the contrary, in the court's view, a drug policy programme would be considerably less credible if no tests were made and, moreover, the knowledge that tests were made had a preventive effect. Having regard to the foregoing, the Labour Court found that the applicant was obliged to submit to the drug test. It considered, however, that there was a fundamental difference between the use of drugs and the use of alcohol, in that the former was illegal whereas the latter was legal and socially accepted. As a positive test result would lead to an investigation into the individual's use of alcohol – a highly sensitive matter in terms of personal integrity – and as, furthermore, there were some doubts as to the accuracy of the alcohol test, the court concluded that the applicant could not be obliged to take the alcohol test. No appeal lay against the judgment of the Labour Court. It is a long-standing tradition in Sweden that labour market issues such as wages and other working conditions are dealt with by the parties acting on that market with little interference from public authorities. In 1906-07 the Swedish Trade Union Confederation (Landsorganisationen) and the Swedish Employers' Confederation (Svenska arbetsgivareföreningen) concluded an agreement, the so-called December Compromise (decemberkompromissen), whereby the trade unions accepted, inter alia, the employers' right to manage and organise the work and the employers recognised the workers' freedom of association. The agreement has been reflected in many collective agreements since. In an early judgment (AD 1930 no. 52), the Labour Court considered the employers' right to manage and organise the work as forming a general legal principle. This principle has been confirmed in subsequent judgments by the Labour Court (see, inter alia, AD 1964 no. 5 and AD 1983 no. 46). The right to manage and organise the work remains with the employer, unless otherwise stipulated in collective or individual agreements or in legislation. This right is, however, not unlimited. It must not be exercised in contravention of the law or “good labour market practice” (“god sed på arbetsmarknaden”). The Labour Court has interpreted the notion of “good labour market practice” in a large number of judgments (see, inter alia, AD 1997 no. 74). It follows from the established case-law of the Labour Court that an employer may have the right to carry out control measures in relation to the employees. Such a right may be based on collective agreements, individual employment contracts or on the employer's right to manage and organise the work. Examples of control measures are work-time studies, physical searches (AD 1943 no. 77) and drug and alcohol tests (AD 1991 no. 45 and AD 2001 no. 3). An employer may not exercise his right to apply control measures in an arbitrary, unreasonable or inappropriate manner. The employer must make sure that such measures are carried out in conformity with both legal provisions and “good labour market practice”. In assessing whether a control measure decided by the employer meets the standards of “good practice”, the Labour Court has applied a principle of proportionality, balancing the employer's interest in using the measure in question and the employee's interest in protecting his or her integrity. Rules on dismissal from employment are contained in the Employment Protection Act (Lagen om anställningsskydd, 1982:80). A collective agreement or an employment contract is invalid to the extent that it excludes or limits employees' rights under the Act. Pursuant to section 7 of the Act, dismissal of an employee must be based on objective grounds (saklig grund). Such grounds do not exist where it may reasonably be required that the employer provide other work for the employee. There is an extensive body of case-law from the Labour Court dealing with the interpretation of the requirement of objective grounds. Two cases concern employees who were dismissed because of their refusal to participate in drug testing. In both cases, the Labour Court found, in balancing the opposing interests involved, that the employer's request that the employees undergo a drug test was justified. In one of the cases (AD 1991 no. 45) the court concluded, however, that the requirement of objective grounds for dismissal was not satisfied. In the other case (AD 2001 no. 3) it reached the opposite conclusion. That case concerned a person, employed as a school help, who was suspected of having relapsed into drug abuse and was dismissed after repeatedly refusing to comply with the employer's request that he submit to a drug test. The Nuclear Activities Act (Lagen om kärnteknisk verksamhet, 1984:3) contains basic provisions on safety in connection with nuclear activities, such as the operation of nuclear power reactors. Nuclear activities require a licence and the licence holder has full responsibility for the safe operation of the facility. A licence may be revoked if safety conditions or safety regulations are not complied with. The National Nuclear Power Inspectorate (Statens kärnkraftsinspektion) supervises all nuclear activities in Sweden. It has laid down basic regulations on nuclear safety (SKIFS 1998:1) which entered into force after the Labour Court's judgment in the present case. In recommendations accompanying these regulations, it underlines that there should be a documented policy for dealing with different factors which could affect staff performance in a way that is relevant to safety and security, for example alcohol and drugs. Such a policy should include directions on, inter alia, the testing of personnel and the action to be taken when someone is found to be under the influence of alcohol or drugs or in the event of abuse. Provisions on professional secrecy for medical staff working in the private sector were, at the material time, to be found in the Act on Duties for Personnel in the Health and Medical Service (Lagen om åligganden för personal inom hälso- och sjukvården, 1994:953). The obligation to observe secrecy does not usually apply if the individual concerned consents to information being disclosed. Thus, with the individual's consent, information may be submitted to another individual, for example his or her employer. A committee appointed by the Government in 1994 to look into the issue of medical testing in the workplace submitted its report in April 1996 (SOU 1996:63) in which it found no grounds for proposing legislation concerning drug tests in the workplace. It considered that this issue should be solved by the parties on the labour market. It recommended that, where drug tests were to be applied, there should be a written drug policy, including an action programme, drawn up jointly by the employers and employees. | 0 |
dev | 001-22095 | ENG | GBR | ADMISSIBILITY | 2,001 | JOHNSON v. THE UNITED KINGDOM | 4 | Inadmissible | Georg Ress;Nicolas Bratza | The applicant, Roy Johnson, is a United Kingdom national, who was born in 1939 and living in Pennycomequick, Devon, England. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant ran a trout farm in Liskeard, Cornwall, which had been built with money lent by Midland Bank plc (“the Bank”). He lived on the farm premises with his wife. In about 1989, the Bank made a further advance of 30,000 pounds sterling (GBP); this was increased to GBP 50,000 and then to GBP 90,000. The Bank’s lendings were secured by a legal charge on the property which entitled the Bank to claim possession of the property in the event that the applicant and his wife did not comply with an agreed payment schedule. The applicant and his wife failed to make payments. On 24 February 1995, the Bank brought proceedings against the applicant and his wife seeking possession of the farm. It also claimed a monetary sum in the amount of the money still owed to it. By a late re-amendment of its Particulars of Claim, the Bank sought in the alternative a declaration that the property stood charged in equity (in the event that the court agreed with the applicant’s assertion that the legal charge was not valid). The applicant and his wife initially filed a joint defence to the Bank’s claim and acted without legal representation. Subsequently, they ceased to co-operate formally and separate amended Defences were submitted. The applicant’s wife was seeking to argue that she had entered into the legal charge as a result of the undue influence of her husband, about which the Bank knew or should have known. In other aspects the applicant and his wife took identical positions, namely that the Bank’s legal charge was invalid because it was blank at the time of execution and that the Bank had increased the amount of money lent to them without consultation and without their authority. They also pursued an identical counterclaim, claiming a declaration that the legal charge was invalid, damages for deductions wrongly made for bank charges and damages for negligence on the basis that the Bank had exercised undue pressure on them to borrow money from it rather than the Halifax Building Society with which they had also been in negotiation. In May 1996, the applicant and his wife separated. The applicant and his wife sought separate representation. His wife was granted legal aid throughout the proceedings which followed. The applicant was granted legal aid for the purpose of defending the Bank’s claims and making a counterclaim from 15 August 1996 onwards. As was the standard practice, his legal aid certificate was limited to obtaining further evidence and counsel’s opinion on the merits of his defence and the merits and likely quantum of his counterclaim. It was necessary for the applicant to apply to extend his legal aid certificate if he wished legal representation for his trial. In about late 1996 or early 1997, the trial was listed to start on 14 July 1997, and to take five days. On 10 May 1997, counsel for the applicant gave the opinion that, while there was a reasonable prospect of establishing that the legal charge was invalid having regard to the fact that the details of the property were entered into the document schedule after the applicant and his wife had signed, there was no defence to the monetary claim and the applicant would be required as a practical result to sell the farm to meet the monetary judgment. The applicant’s defence that he had not consented to the increase in the loan was entirely without substance while his counterclaim, even if well-founded (which was not the case), was only worth approximately GBP 2,000. He concluded that “it is not possible to say that it is reasonable for the Board to support [the applicant’s] case. I am quite satisfied that the costs of the defence of this action will far outweigh any benefit to the [applicant]”. On 23 May 1997, the applicant’s application to extend legal aid for the trial was received by the Legal Aid Board. On 11 June 1997, the Legal Aid Board wrote to the applicant to inform him that it was considering whether to discharge his legal aid certificate because “in view of Counsel’s Opinion it is not considered you have a reasonable prospect of success in this action”. The letter indicated that if the applicant thought his legal aid certificate should not be discharged, he should write to the legal aid office within 14 days of the date of the letter, and stated that the Board had asked the applicant’s solicitor not to do any work in the meantime. The applicant received the letter on 18 June 1997. On 21 June 1997, the applicant wrote to the Legal Aid Board stating why he considered his legal aid should not be discharged, submitting inter alia that: “The case is extremely complex with volumes of evidence, and documents, over a three year period, with twenty court appearances to date on pre-trial matters and discovery. At present I do not have my files, and evidence, and would explain that I cannot cope with taking on such a mountain of paperwork, preparing my case, representing myself at such short notice, bearing in mind that the trial date is 14 July 1997 for five days.” On 2 July 1997, the applicant’s legal aid certificate was discharged. On 4 July 1997, the applicant sent the Legal Aid Board his notice of appeal against the decision to discharge his legal aid, and asked them to deal with the appeal without a hearing and using written information only. On 14 July 1997, the trial began at Truro County Court, with the applicant representing himself. The Bank and the applicant’s wife were each represented by solicitors and counsel. There had been two pre-trial directions hearings. On 4 June 1997, the judge had ordered that Mr S., the applicant’s solicitor at the time the charge was made, be permitted to lodge a statement and that the applicant’s accountant leave his working file in court. On 12 June 1997, the judge ordered that Mr S disclose his working file. The trial concluded on 18 July 1997. On 22 July 1997, judgment was delivered in favour of the Bank, finding that the applicant’s wife had not been subject to undue influence by her husband, that the Bank’s loan had not been less advantageous than the one offered by the Halifax and that the legal charge entered into by the applicant and his wife was valid. The judge ordered that the applicant and his wife give up possession of the property by 19 August 1997 and pay the Bank the sum of GBP 151,521.10. He rejected the applicant’s application for leave to appeal to the Court of Appeal and also his application for a stay of execution of the possession order. On 5 August 1997, the applicant appealed to the Court of Appeal against the order and applied for a stay of execution of its possession order. He was assisted by his former solicitors in this process under the Advice and Assistance or Green Form scheme (which provided for advice and assistance short of representation in court). His grounds of appeal were inter alia that the judge had erred in the orders made by him on 4 and 12 June 1997, alleging that the order concerning the accountant’s file had the result that the Bank and his wife’s lawyers had access to privileged documents and that Mr S. and a witness for the Bank had perjured themselves. On 11 August 1997, the Legal Aid Board wrote to the applicant and indicated that his appeal would be dealt with shortly by the area committee. A second letter from the Board dated 11 August 1997 stated that the appeal would be considered by the area committee on 20 August 1997. On 12 August 1997, the applicant telephoned the Board. On 13 August 1997, the Board wrote to the applicant in connection with his appeal of 4 July 1997 against the discharge of his legal aid certificate. The letter stated: “I apologise for the fact that we did not action your faxed notice of appeal (received in this office on 4th July) prior to the Court Hearing on 14th July. I consider that we were at fault in either not processing the appeal prior to the hearing or, if that was not possible, at least notifying [the applicant] of that fact.” The letter indicated that the appeal would not be considered, as the court had found against the applicant, informed him that he could apply for legal aid in connection with the application for leave to appeal, and stated that his communication was being treated as a complaint under Stage I of the Legal Aid Board’s complaints procedure. On 21 August 1997, the Civil Appeals Office acknowledged the applicant’s application for leave to appeal and informed him that his application might be decided by a Lord Justice without a hearing, but that in most cases the Court of Appeal would direct that the application be listed for oral hearing in court, and that if the Court of Appeal directed an oral hearing, the applicant would be notified in due course of the hearing date. The applicant and his wife did not give up possession of their property as ordered and, accordinly, on 2 September 1997 the Bank obtained a warrant of possession, authorising an eviction, if necessary, on 24 September 1997. It appears that the applicant rang the Civil Appeals Office to inform them of this fact and to impress upon them the urgency of holding a hearing in his case. It appears that the Civil Appeals Office informed him that the Court of Appeal would decide whether or not it would grant leave to appeal or a stay before 24 September 1997. On 4 September 1997, the applicant telephoned the Legal Aid Board indicating that he wished to appeal against the refusal to grant him legal aid and was notified that his appeal would be heard on 24 September 1997. On about 4 September 1997, the applicant notified the Civil Appeals Office by telephone and in writing that his application for legal aid had been refused, and that his appeal against the refusal was due to be heard on 24 September 1997. On 5 September 1997, the applicant completed a notice of appeal against the refusal to grant him legal aid in connection with his appeal. Also on 5 September 1997, the applicant’s former solicitors wrote to the Legal Aid Board in support of the applicant’s appeal. On 17 September 1997, the Court of Appeal wrote to the applicant notifying him that his application for leave to appeal would be heard on 19 September 1997. The applicant received the letter on 18 September 1997. Also on 18 September 1997, the Legal Aid Board wrote to the applicant and confirmed that his appeal against the refusal to grant legal aid in connection with his appeal would be heard on 24 September 1997. On 19 September 1997, the applicant travelled to London and presented his application for leave to appeal in person, with the assistance of a McKenzie friend (an unqualified adviser) whose first acquaintance with the case was the morning of the appeal. Although the application for leave to appeal was ex parte, the Bank was represented by counsel at the hearing of the application. The applicant applied for an adjournment of the application for leave to appeal, in order that his appeal against the refusal to grant legal aid might be heard. The Court of Appeal refused to grant an adjournment but indicated that if, in the course of the application, it appeared that legal representation was necessary, they would keep in mind the application for an adjournment. After hearing the applicant, the Court of Appeal dismissed the application for leave to appeal. It noted insofar as he appealed concerning the orders of 4 and 12 June 1997, he should have appealed against those orders at the time. As regarded the allegations that privileged documents were disclosed, it found that there was no evidence that any such material from his accountant had been referred to by the judge or taken into account by him in reaching his decision and noted that no objection had been made during the trial to the use of any of those documents. It also found that no reference had been made to privileged material held by the solicitor Mr S. beyond what was inevitable and proper in the circumstances. On 23 September 1997, the applicant telephoned the Legal Aid Board and informed them that he would not be pursuing his appeal against the refusal of legal aid for the appeal, as the application for leave to appeal had been dismissed. The Bank took possession of the farm pursuant to the warrant for possession, and sold it in order to recover the moneys due to them under the legal charge. In order to qualify for legal aid at the relevant time, the applicant had to satisfy the Legal Aid Board: (1) that he was financially eligible for legal aid in that his disposable income and capital fell below that prescribed for these purposes (reg. 27 of the Civil Legal Aid (General) Regulations 1989, SI 1989/339); (2) that he had reasonable grounds for taking or defending the proceedings or making any counterclaim therein (section 15(2) of the Legal Aid Act 1988 (the “legal merits” test); | 0 |
dev | 001-79728 | ENG | AZE | ADMISSIBILITY | 2,007 | IVANOV v. AZERBAIJAN | 4 | Inadmissible | Christos Rozakis | The applicant, Mr Dmitriy Ivanov, is an Azerbaijani national who was born in 1973 and lives in Kazi-Magomed. He was represented before the Court by Mr I. Aliyev, a lawyer practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr C. Asgarov. The facts of the case, as submitted by the parties, may be summarised as follows. In December 1999 the applicant got married. He and his wife lived together until March 2000. After the applicant had moved out of his wife’s house, he had an intention to commence divorce proceedings. However, approximately at this time, he found out that his wife was pregnant. Believing that he was not the father of the yet unborn child, in August 2000 he requested the AliBayramli Register of Civil Status Acts not to list him as the biological father in the birth certificate upon the child’s birth. In October 2000 the applicant’s wife gave birth to a daughter. Despite the applicant’s earlier request, based on a statutory presumption of paternity, the Register of Civil Status Acts issued a birth certificate mentioning the applicant as the child’s father. As the applicant and his wife were separated and no longer lived together as a family, on 27 November 2000 the AliBayramli District Court ordered the applicant to pay child support to his wife. The applicant then instituted civil proceedings, disputing his paternity and asking the court to strike out his name as the child’s father from the relevant civil status documents. He claimed that, on the night after his wedding, he discovered that his wife was not a virgin as he expected. He was shocked by this and refused to continue the sexual intercourse with her. He further maintained that thereafter he had never had any sexual intercourse with his wife and that the child had been conceived in an adulterous relation with another person. After a preliminary hearing, on 22 February 2001 the Ali-Bayramli District Court ordered a biological expert examination to determine the paternity. On 29 November 2001, an expert of the Ministry of Health issued an opinion on the applicant’s paternity. The expert performed an ABO blood group test by comparing the applicant’s, the child’s and the mother’s blood types and, based on its results, concluded that the applicant “could be the child’s father”. The expert noted that a DNA test would yield a more precise conclusion, but the expert did not possess adequate medical inventory to perform such a test. Relying on the results of the ABO blood group test, the fact that the applicant and his wife lived together at the time of the child’s conception, as well as the witness testimony concerning the relations between the applicant and his wife, on 10 January 2002 the Ali-Bayramli District Court dismissed the applicant’s claim. The applicant filed an appeal, arguing that the District Court’s judgment was arbitrary, because the expert opinion used by the court did not provide a definite conclusion and because the results of the ABO test could not be considered as a reliable source for identifying the child’s biological father. He further argued that only the DNA test could provide a conclusive answer to the question of paternity. On 13 May 2002 the Court of Appeal upheld the first instance court’s judgment, holding that the applicant failed to substantiate his arguments or present any new evidence proving that he was not the child’s father. In its judgment, the court was silent about the applicant’s request for a DNA test. Upon the applicant’s appeal in cassation, on 29 January 2003 the Supreme Court upheld the lower courts’ judgments dismissing the applicant’s claim. In May 2003 the applicant filed an additional cassation complaint with the President of the Supreme Court, requesting that the proceedings be reopened. On 6 June 2003 the President rejected this request. However, in April 2005 the proceedings were reopened and the case was referred to the Plenum of the Supreme Court based on an application by the President of the Supreme Court. On 15 April 2005 the Plenum found that the Court of Appeal breached the procedural requirements by ignoring the applicant’s request to order a DNA test. It further noted that such a test would constitute the “principal type of evidence” in this case. The Plenum quashed the decision of the Supreme Court of 29 January 2003 and the related judgment of the Court of Appeal of 13 May 2002 and remitted the case to the Court of Appeal. On 11 August 2005 the Court of Appeal instructed the Forensic Medicine and Pathologic Anatomy Department of the Ministry of Health to conduct a DNA test of the applicant, his former wife and her child. Despite having been notified about the time and place of the DNA testing, the applicant failed to appear for the test without any good reason. According to the Government, the applicant received several such notifications. Furthermore, although they had been informed about the time and place of the appeal hearing, neither the applicant nor his former wife appeared for the hearing. In such circumstances, on 8 December 2005 the Court of Appeal noted that it had been impossible to obtain DNA evidence due to the applicant’s failure to cooperate. It therefore found that the parties (and in particular, the applicant) were not interested in obtaining new evidence that would enable the court to reach a different conclusion. For these reasons, the Court of Appeal again upheld the Ali-Bayramli District Court’s original judgment of 10 January 2002. No cassation appeal was filed against the Court of Appeal’s judgment of 8 December 2005 within the statutory three-month period for filing cassation appeals. “[T]he Supreme Court shall be the highest judicial authority with regard to civil ..., criminal, administrative and other disputes falling within the jurisdiction of the general and specialised courts. The Supreme Court [is] a court of cassation instance...” “The Plenum of the Supreme Court shall be composed of the President, Vice Presidents and judges of the Supreme Court, the President of the Economic Court, the President of the Court of Appeal and the President of the Supreme Court of the Nakhchivan Autonomous Republic. ... The Plenum of the Supreme Court ... shall, in the manner established by law, review cases under the procedure of additional cassation ..., on submission of the President of the Supreme Court, or pursuant to a protest by the Chief Prosecutor or appeal by the defendant ...” “The President of the Supreme Court ... shall, in cases and under the procedure provided by law, submit cassation-instance decisions for the review of the Plenum of the Supreme Court...” “419.4. The decision [of the cassation-instance court] shall enter into force from the moment of its delivery.” “Decisions of the Supreme Court of the Republic of Azerbaijan ... may be reviewed by the Plenum of the Supreme Court of the Republic of Azerbaijan under the procedure of additional cassation upon a submission, appeal or protest.” “A submission concerning a decision of the Supreme Court of the Republic of Azerbaijan ... may be made by the President of the Supreme Court on the basis of an application by persons non-parties to the case whose interests are affected by the judicial acts. An appeal may be filed by a party to the case represented by an advocate. [A protest may be filed by the Chief Prosecutor in certain specified circumstances.]” “424.1. The Plenum considers cases exclusively on the points of law.” Article 424.2 lists the grounds which merit the review of the Supreme Court’s cassation-instance decision by the Plenum of the Supreme Court. These grounds are present if, inter alia, the Supreme Court’s decision was drawn up in violation of the formal requirements concerning the contents of a judicial decision, or was based on a legal norm declared as unconstitutional by the Constitutional Court, or if the Supreme Court’s ruling infringed the rights and obligations of persons who were not a party to the case. “426.1. If appropriate grounds exist, the President [of the Supreme Court] shall refer the submission, appeal or protest, together with the case file, to the Plenum of the Supreme Court. 426.2. The submission, appeal or protest shall be filed within two months after the date of delivery of the [relevant] decision of the Supreme Court. ...” “429.0. Upon review of a case under the procedure of additional cassation, the Plenum of the Supreme Court has the competence to: ... 429.0.1. uphold the decision of the cassation-instance court and dismiss the submission, appeal or protest; 429.0.2. make amendments to the decision of the cassation-instance court; 429.0.3. quash, in full or in part, the decision of the cassation-instance court, as well as the related decision of the appellate court, and remit the case for re-examination by the appellate court; ...” | 0 |
dev | 001-67442 | ENG | ITA | CHAMBER | 2,004 | CASE OF RICCARDI PIZZATI v. ITALY | 4 | Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (national proceedings) - claim dismissed | Christos Rozakis | 4. The applicant was born in 1924 and lives in Piacenza. 5. On 8 April 1974 the applicant sued M.P. in the Piacenza District Court seeking damages for the loss she had sustained as a result of works carried out by her neighbour which had resulted, among other things, in sewage being dumped on her property. 6. Preparation of the case for trial began on 11 May 1974. Of the sixty- six hearings scheduled between 11 November 1974 and 15 June 1995 nineteen were adjourned at the request of the parties, three at the request of the applicant, two at the request of M.P., four by the court of its own motion, and one on account of a lawyers’ strike; twelve were devoted to organising expert evidence, twelve to the filing of documents and the hearing of witnesses, twelve to attempts to seek a friendly settlement, and one was adjourned in order to allow the parties to make their submissions. 7. In the meantime M. P.’s lawyer had filed a death certificate with the registry in respect of his client. At a hearing on 29 February 1996 the judge declared the proceedings interrupted. On 25 September 1996 the parties resumed the proceedings and the judge fixed 11 June 1998 as the date for hearing submissions. On an unspecified date the case was referred to the panel of judges dealing with the oldest cases (Sezioni Stralcio). At a hearing on 18 November 1999 the parties requested that a date be fixed for hearing oral submissions and the judge adjourned the case to 8 June 2000. The hearing was not held on that date, but adjourned to 12 June 2000. On that date the judge allowed the parties to take the files out. 8. In a judgment of 23 October 2000, the text of which was deposited with the registry on the same day, the Piacenza Court allowed the applicant’s claim in part and ordered M. P.’s heir to move the septic tank that had not been installed at the prescribed distance and to replace part of the applicant’s sullage pipes. It also awarded her 15,000,000 Italian lire (7,747 euros). 9. On 17 October 2001 the applicant lodged an application with the Ancona 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 requested 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 non-pecuniary damage sustained. The applicant claimed 200,000,000 Italian lire (103,291.37 euros (EUR)) in non-pecuniary damages. 10. In a decision of 31 January 2002, the text of which was deposited with the registry on 13 February 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 failed to substantiate it, awarded her EUR 5,000 on an equitable basis in compensation for the non-pecuniary damage and EUR 860 for costs and expenses. The decision was served on the applicant on 13 March 2002. 11. The applicant appealed to the Court of Cassation against that decision on 21 May 2002 on the ground that the amount awarded her by the Court of Appeal was inadequate. 12. However, in a judgment of 12 November 2002, the text of which was deposited with the registry on 3 January 2003, the Court of Cassation declared the appeal inadmissible on the ground that it had been lodged out of time. The authorities paid the amounts due on 23 December 2003. 13. In a letter of 25 August 2003 the applicant informed the Court of the outcome of the domestic proceedings and asked it to resume its examination of her application. | 1 |
dev | 001-84946 | ENG | DEU | ADMISSIBILITY | 2,008 | ZWAR v. GERMANY | 4 | Inadmissible | Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych | The applicant, Ms Gisela Zwar, is a German national who lives in Sonsbeck in Germany. She was represented before the Court by Mr R. Battenstein, a lawyer practising in Düsseldorf. From August 1967 to November 1995 the applicant’s late husband Z. exercised the profession of a painter. In November 1995 he was diagnosed as suffering from leukaemia. He died of the disease on 6 August 1996. On 29 December 1995 the medical clinic where the applicant was treated gave notice of the disease to the Wuppertal Insurance Association for the Building Professions (Bau-Berufsgenossenschaft) on the ground that Z.’s disease might have been work-related, which would entail pension benefits. On 28 January 1997 the Insurance Association refused to establish that Z.’s leukaemia was work-related for having been caused by his exposure to benzene during his work as a painter. Following enquiries on Z.’s former working conditions and relying on expert opinion, the Insurance considered that the dosage of benzene Z. had been exposed to during his work had not been sufficiently high to cause a work-related disease. On 4 February 1997 the applicant lodged an administrative appeal. She notably relied on two expert opinions commissioned by Z.’s health insurance. On 24 October 1997 the Insurance Association, having heard further expert opinion, rejected the applicant’s administrative appeal. On 21 November 1997 the applicant lodged a motion with the Duisburg Social Court (Sozialgericht), alleging that Z.’s disease had been caused by over-exposure to benzene, notably during the first years of his professional life. On 31 May and 26 August 1999 a court appointed expert submitted his expert opinion. He considered that there was no conclusive evidence that the applicant’s illness had been caused by exposure to benzene at his work-place. On 4 February 2000 the Social Court summoned Z.’s health insurance to join the proceedings as a third party. By judgment of 8 February 2000 the Social Court granted the applicant’s claim. Relying mainly on the expert opinions commissioned by the third party, the Social Court considered that it had been established with a sufficient amount of probability that Z.’s disease had been caused by his exposure to benzene at his workplace. This judgment was served on the applicant’s counsel on 28 February 2000. On 23 March 2000 the defendant Insurance Association lodged an appeal with the Northine-Westfalia Social Court of Appeal (Landessozialgericht). In support of her allegation that Z.’s disease had not been caused by exposure to benzene the defendant submitted a further expert opinion. On request by the Court of Appeal one further expert submitted his expert opinion on 4 February 2002. Subsequently, the applicant asked for a fresh expert opinion to be prepared pursuant to section 109 of the Social Courts Act (see relevant domestic law, below), and named Prof W. as an expert. On 2 May 2002 Prof W. declined the request as he did not consider it possible to establish whether the disease had been caused by exposure to benzene. Following this, the applicant named another medical expert who submitted his expert opinion on 31 October 2002. In reply, the defendant party submitted a further opinion submitted by another expert on 30 April 2003. During the hearing held before the Social Court of Appeal on 15 October 2003 the applicant submitted a presentation held by the expert Dr G. on a conference relating to the assessment of exposure to benzene at painter’s workplaces. According to the applicant, this presentation established that Z. had been exposed to dosages of benzene which exceeded the limits set down in the relevant safety guidelines. She requested the Court of Appeal once again to hear the experts with regard to these submissions. On 15 October 2003 the Social Court of Appeal quashed the Social Court’s judgment, rejected the applicant’s claim and refused to grant the applicant leave to appeal. Having regard to the expert opinions and statements submitted during the administrative and court proceedings, the Court of Appeal considered that it could not be established with sufficient probability that Z.’s disease had been caused by overexposure to toxic substances at his workplace. By way of conclusion, the Social Court of Appeal found as follows: “Summing up, the Senate considers that the facts of the case have been sufficiently established by the medical expertises and opinions by Dr P., Prof Wi., Prof T, and, in particular, by the expert Prof S. The differing assessment of the causation issue submitted by Prof M., Prof We. and the expert Prof No. - who had been heard according to section 109 of the Social Courts Acts - has been reliably rebutted. The plaintiff’s submissions do not induce the court to undertake further examinations. It was, in particular, not necessary to comply with the plaintiff’s request to hear the experts with regard to the presentation submitted during the oral hearing. Even assuming that the dosage of benzene Z. had been exposed to had exceeded the limits of the relevant safety guidelines, this does not prove that the disease had been work-related, as the safety guidelines are based on what is technically feasible and do not prove that an excess of the safety limits causes health damages.” This judgment was served on the applicant’s counsel on 22 March 2004. On 9 July 2004 the Federal Social Court (Bundessozialgericht) rejected the applicant’s complaint against the refusal to grant her leave to appeal. That court considered that the applicant had failed sufficiently to establish which considerations should have induced the Court of Appeal to raise further evidence, as requested by the applicant. On 1 August 2004 the applicant lodged a constitutional complaint. On 8 September 2004 the Federal Constitutional Court (file-no. 1 BvR 1179/04), sitting as a panel of three judges, refused to admit the applicant’s constitutional complaint as being inadmissible. This decision was served on the applicant’s counsel on 22 September 2004. Section 109 of the Social Court Act reads as follows: “(1) On application by the insured person, the disabled person, the person entitled to benefits or his surviving dependants, a physician to be determined shall be heard as an expert. The hearing in respect of this expert opinion may be made dependant on whether the applicant advances the costs and, unless the court decides otherwise, the applicant in the end bears the costs. (2) The court may reject an application where its admission would delay the settlement of the legal dispute and the court is convinced that the application was submitted in attempt to delay proceedings or the application was not submitted earlier due to gross negligence.” | 0 |
dev | 001-61195 | ENG | DEU | GRANDCHAMBER | 2,003 | CASE OF SOMMERFELD v. GERMANY | 1 | No violation of Art. 8;Violation of Art. 14+8 with regard to right of access;Violation of Art. 14+8 with regard to right of appeal;Not necessary to examine Art. 14+6;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings | Luzius Wildhaber;Nicolas Bratza;Paul Mahoney | 11. The applicant, born in 1953, is the father of the child M., born out of wedlock on 25 January 1981. The applicant acknowledged paternity of M. 12. The applicant and the child’s mother lived together at the time of the child’s birth. They separated in September 1986. The child’s mother prohibited any contact between the applicant and the child. The applicant still met M. several times at school until such contact was no longer possible. Subsequently the child’s mother married Mr W., the father of her child A., born in August 1985, W. being the common family name. 13. On 2 October 1990 the applicant applied to the Rostock District Court for a decision granting him a right of access to his daughter. Having heard the persons concerned, the Rostock Youth Office, in comments dated 11 April 1991, advised against a right of access. The Youth Office submitted that M. had established a close relationship with Mr. W., which would be adversely affected by contact between M. and her natural father. It also stated that M., when heard in the absence of her mother, had indicated that she was not keen to see the applicant and was suffering as a result of his continuing efforts to obtain access. 14. On 27 June 1991 M., then ten years old, was heard by a judge of the District Court. She stated that the fact that the applicant was always standing at the fence of the schoolyard disturbed her and that she did not wish to visit the applicant even if access should be ordered by the court. 15. At a court hearing on 31 July 1991, the applicant and the child’s mother declared that they would attempt to settle the question of a visiting arrangement with the assistance of the Youth Office. On 30 September 1991 the Youth Office informed the District Court that no agreement had been achieved and that M. had stated that she did not wish to see the applicant. 16. On 12 December 1991 the court ordered that a psychological expert opinion be prepared. On 9 April 1992, in one-page submissions, the psychologist of the Rostock Health Services stated that, as contact between the applicant and M. had been disrupted for six years, no diagnosis of their current relationship appeared possible. The psychologist considered that the views which the applicant and M. had expressed on the question of future contact were very different. M. was growing up in a family unit and, unlike the applicant, was not suffering from any deficits in that respect, and did not wish to have any personal contact with the applicant. He should give her the necessary time to take up contact of her own motion. The psychologist noted that she had arranged a meeting between the applicant and M. which, however, had been cancelled by M.’s stepfather. 17. On 24 June 1992 the District Court judge heard the applicant and M. in the presence of the psychological expert. M. having repeatedly stated that she did not wish to have contact with the applicant, the latter affirmed that he would withdraw his request for a right of access. 18. The applicant withdrew his request on 1 July 1992. 19. On 13 September 1993 the applicant again applied to the District Court for a right of access to his daughter. 20. On 15 February 1994 the District Court judge heard the thirteen-year-old M., who stated that she did not wish to talk to the applicant or accept presents from him and that he should no longer bother her. She also said that she had a father whom she loved, though it was not her natural father. The court held a hearing with the applicant and the child’s mother on 26 April 1994. 21. On 1 June 1994 the District Court dismissed the applicant’s application. 22. The District Court noted the comments filed by the Rostock Youth Office on 6 January 1994 as well as the parents’ and the child’s statements in court. The Court also had regard to the comments filed by the Youth Office in April 1991 and to the statement submitted by the psychologist in April 1992, both in the context of the first set of access proceedings. 23. The District Court found that the applicant could not be granted access to the child. Referring to section 1711 of the Civil Code, the Court observed that the mother, having sole custody, determined the father’s access and the guardianship court could only decide to grant the father access if this was in the child’s best interest. In this respect, the court found as follows: “On the basis of its extensive investigations, and especially its conversations with [M.] in 1992 and February 1994, this court has decided that, in the present case, access by the father to his child is by no means in her best interest. At the age of thirteen, [M.] is certainly able to make up her own mind and has clearly rejected the idea of establishing contact with her biological father. In the court’s opinion, forcing her to see him against her will cannot be justified, since this would seriously disturb her emotional and psychological balance. Such a decision would on no account be in her best interest. This court cannot accept the [applicant’s] sweeping statement that access is always in the child’s interest. The extent to which this is true invariably depends on circumstances. In this case, the only justifiable decision is that set out in the operative part of the judgment. ...” 24. On 17 June 1994 the Rostock Regional Court dismissed the applicant’s appeal on the following grounds: “The appeal is admissible under section 20 of the Act on Non-Contentious Proceedings, but is unfounded. The District Court was right to refuse the applicant all access to [M.], since this is not in the child’s best interest (sections 1711 and 1634 of the Civil Code). This court also takes the view that the District Court had no cause to permit exceptions for any specific area of life. It considers that the arguments advanced in the contested decision are correct. It regards it as important that the girl [M.] – who is, after all, thirteen years old – has stated clearly and for a long time that she wants no contact with her father. The applicant should accept this clearly expressed wish in his adolescent daughter’s interest and also his own. Only if he ceased to exert pressure on her might it one day be possible for them to resume contact. The court would also point out that access to [M.] on the strength of a court order could hardly be enforced against the child’s will.” 25. On 22 July 1994 the applicant filed a constitutional complaint with the Federal Constitutional Court. 26. On 19 January 1996 a panel of three judges of the Federal Constitutional Court refused to entertain the applicant’s complaint. 27. The statutory provisions on custody and access are to be found in the German Civil Code. They have been amended on several occasions and many were repealed by the amended Law on Family Matters (Reform zum Kindschaftsrecht) of 16 December 1997 (Federal Gazette 1997, p. 2942), which came into force on 1 July 1998. 28. Section 1626 § 1 reads as follows: “The father and the mother have the right and the duty to exercise parental authority (elterliche Sorge) over a minor child. The parental authority includes the custody (Personensorge) and the care of property (Vermögenssorge) of the child.” 29. Pursuant to section 1626a § 1, as amended, the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect (declaration on joint custody) or if they marry. According to section 1684, as amended, a child is entitled to have access to both parents; each parent is obliged to have contact with, and entitled to have access to, the child. Moreover, the parents must not do anything that would harm the child’s relationship with the other parent or seriously interfere with the child’s upbringing. The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise, also with regard to third parties; and they may order the parties to fulfil their obligations towards the child. The family courts can, however, restrict or suspend that right if such a measure is necessary for the child’s welfare. A decision restricting or suspending that right for a lengthy period or permanently may only be taken if the child’s well-being would otherwise be endangered. The family courts may order that the right of access be exercised in the presence of a third party, such as a Youth Office authority or an association. 30. Before the entry into force of the amended Law on Family Matters, the relevant provision of the Civil Code concerning custody and access for a child born in wedlock was worded as follows: Section 1634 “1. A parent not having custody has the right to personal contact with the child. The parent not having custody and the person having custody must not do anything that would harm the child’s relationship with others or seriously interfere with the child’s upbringing. 2. The family court can determine the scope of that right and can prescribe more specific rules for its exercise, also with regard to third parties; as long as no decision is made, the right, under section 1632 § 2, of the parent not having custody may be exercised throughout the period of contact. The family court can restrict or suspend that right if such a measure is necessary for the child’s welfare. 3. A parent not having custody who has a legitimate interest in obtaining information about the child’s personal circumstances may request such information from the person having custody in so far as this is in keeping with the child’s interests. The guardianship court shall rule on any dispute over the right to information. 4. Where both parents have custody and are separated not merely temporarily, the foregoing provisions shall apply mutatis mutandis.” Section 1632 § 2 concerned the right to determine third persons’ rights of access to the child. 31. The relevant provisions of the Civil Code concerning custody of and access to a child born out of wedlock were worded as follows: Section 1705 “Custody over a minor child born out of wedlock is exercised by the child’s mother...” Section 1711 “1. The person having custody of the child shall determine the father’s right of access to the child. Section 1634 § 1, second sentence, applies by analogy. 2. If it is in the child’s interests to have personal contact with the father, the guardianship court can decide that the father has a right to personal contact. Section 1634 § 2 applies by analogy. The guardianship court can change its decision at any time. 3. The right to request information about the child’s personal circumstances is set out in section 1634 § 3. 4. Where appropriate, the youth office shall mediate between the father and the person who exercises the right of custody.” 32. Like proceedings in other family matters, proceedings under former section 1711 § 2 of the Civil Code were governed by the Act on Non-Contentious Proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit). 33. According to section 12 of that Act, the court shall, ex officio, take the measures of investigation that are necessary to establish the relevant facts and take the evidence that appears appropriate. 34. In proceedings regarding access, the competent youth office has to be heard prior to the decision (section 49 § 1 (k)). 35. As regards the hearing of parents in custody proceedings, section 50a § 1 stipulates that the court shall hear the parents in proceedings concerning custody or the administration of the child’s assets. In matters relating to custody, the court shall, as a rule, hear the parents personally. In cases concerning placement into public care, the parents shall always be heard. According to paragraph 2 of section 50a, a parent not having custody shall be heard except where it appears that such a hearing would not contribute to the clarification of the matter. 36. Section 63 provides for the right to lodge a further appeal challenging the first appeal decision. Section 63a of the Act as in force at the material time excluded this right in proceedings concerning a natural father’s access to his child born out of wedlock. That provision has been repealed by the Law on Family Matters of 1997. 37. The human rights of children and the standards to which all governments must aspire in realising these rights for all children, are set out in the Convention on the Rights of the Child. The Convention entered into force on 2 September 1990 and has been ratified by 191 countries, including Germany. 38. The Convention spells out the basic human rights that children everywhere – without discrimination – have: the right to survival; to develop to the fullest; to protection from harmful influences, abuse and exploitation; and to participate fully in family, cultural and social life. It further protects children’s rights by setting standards in health care, education and legal, civil and social services. 39. States Parties to the Convention are obliged to develop and undertake all actions and policies in the light of the best interests of the child (Article 3). Moreover, States Parties have to ensure that a child is not separated from his or her parents against their will unless such separation is necessary for the best interests of the child; and that a child who is separated from one or both parents is entitled to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests (Article 9). | 1 |
dev | 001-69028 | ENG | UKR | CHAMBER | 2,005 | CASE OF CHIZHOV v. UKRAINE | 4 | Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | Zoryana Bortnovska | 6. The applicant, Mr Sergey Vasilyevich Chizhov, is a Ukrainian national, who was born in 1962 and lives in Zaporizzhia. 7. On 6 October 1997 the applicant was apprehended by police officers B.Y.Y. and L.G.T. On the same day he was brought to the medical sobering-up facility by these officers. In the course of the applicant’s apprehension the police officers inflicted bodily injuries on him, resulting in a short-term health disorder. 8. On 7 October 1997 the applicant was charged with assaulting and attempting to bribe them. 9. On 21 October 1997 the Leninsky District Court of Zaporizzhia acquitted the applicant. 10. The applicant complained to the Regional Prosecution Service and the General Prosecution Service seeking to institute criminal proceedings against the police officers who had unlawfully apprehended and harmed him. 11. On 12 February 1998 the applicant initiated civil proceedings against the Zaporizzhia City Police Department in the Leninsky District Court of Zaporizzhia, seeking compensation for the moral damage caused by the actions of B.Y.Y. and L.G.T. 12. On 9 March 1998 the Prosecution Service of Zaporizzhia instituted criminal proceedings against the officers. 13. On 29 January 1999 the Leninsky District Court of Zaporizzhia sentenced B.Y.Y. and L.G.T. to a 3 year suspended prison sentence following their conviction for abuse of power and inflicting bodily harm on the applicant. It also ordered the Zaporizzhia City Police Department to pay the applicant UAH 3,709.13 in compensation for pecuniary and non-pecuniary damage. 14. On 22 March 1999 the Zaporizzhia Regional Court upheld that decision. 15. On 1 April 1999 the Leninsky District Court of Zaporizzhia initiated the execution proceedings for the judgment of 29 January 1999. 16. On 14 April 1999 the writ of execution was lodged with the Leninsky District Bailiffs’ Service in Zaporizzhia. 17. On 20 May 1999 the respondent in the case was changed from the City Police Department of Zaporizzhia to the Regional Police Department of Zaporizzhia, because the latter was responsible for managing the medical sobering-up facilities. 18. On 27 July 1999 the writ of execution was transferred to the Ordzhonikidze Bailiffs’ Service for further enforcement. 19. In August 1999 the State Treasury Department confirmed the lack of funds of the Regional Police Department. 20. On 16 August 1999 the applicant lodged a motion to attach the property of the Zaporizzhia Regional Police Department. 21. On 14 September 1999 the Ordzhonikidze District Execution Service of Zaporizzhia informed the applicant that the attachment of the property of a State institution was prohibited by law. 22. On 3 November 1999 the Ordzhonikidze District Execution Service informed the applicant of the Zaporizzhia Regional Police Department’s lack of funds. It also stated that the latter owned no property and therefore attachment was not possible. 23. During 1999-2000, the applicant repeatedly lodged a number of motions with the Prosecution Service of Zaporizzia, the General Prosecution Service, the State Security Service, the Supreme Court of Ukraine and the Human Rights Ombudsman, seeking to institute criminal proceedings against various officials of the Zaporizzhia Regional Police Department, the execution service officials, Judge D.L.A of the Leninsky District Court, and a private person, D.S.S., who had allegedly assaulted the applicant. 24. On 5 April 2000 the Ordzhonikidze District Bailiffs’ Service terminated the proceedings in the applicant’s case due to the lack of funds of the Zaporizzhia Regional Police Department. The Government mentioned that the applicant retained a right to reintroduce the writ of execution with the Bailiffs’ Service for up to three years. 25. On 17 November 2000 the Deputy President of the Supreme Court of Ukraine refused to initiate supervisory review proceedings in the applicant’s case. It also remitted the applicant’s claims concerning the non-execution of the judicial decision to the Ministry of Justice. 26. On 9 June 2003 the Ordzhonikidze District Bailiffs’ Service issued resolution no. 1131/9 concerning the institution of the enforcement proceedings for the judgment of 29 January 1999. It also proposed to the debtor that it enforce the judgment given in the applicant’s favour voluntarily. On the same date the resolution instituting the criminal proceedings was sent to the Zaporizzhia Regional Police Department and to the applicant. 27. On 20 June 2003 the bailiff requested the State Treasury to transfer the funds awarded to the applicant by the judgment of 29 January 1999 to his account. 28. On 7 August 2003 the applicant requested that the funds be transferred to his account. 29. On 14 August 2003 the judgment of 29 January 1999 was enforced and the applicant received UAH 3,709.13. 30. On 20 November 2003 the Ordzhonikidze Bailiffs’ Service terminated the execution proceedings in the case in view of the fact that the judgment of 29 January 1999 had been enforced in full. 31. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18, 27 July 2004). | 1 |
dev | 001-88878 | ENG | GBR | ADMISSIBILITY | 2,008 | STANCILL v. THE UNITED KINGDOM | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | The applicant, Mr Peter Stancill, is a British national who was born in 1954 and lives in Sheffield. 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 2 July 2000. His claim for widows' benefits was made on 7 July 2000 and was rejected on 14 July 2000 on the ground that he was not entitled to widows' benefits because he was not a woman. On 24 July 2000 the applicant appealed and on 29 August 2000 reconsideration took place. 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 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 | 001-79044 | ENG | POL | CHAMBER | 2,007 | CASE OF BAK v. POLAND | 2 | No violation of Art. 5-3;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings | Nicolas Bratza | 4. The applicant was born in 1979 and lives in Warsaw. 5. On 28 September 1999 the applicant was arrested on suspicion of having committed two armed robberies together with other persons. 6. On 4 October 1999 the Gdańsk District Court decided to detain the applicant on remand. The decision was based on the high probability that the applicant had committed the crimes with which he had been charged, which was confirmed by evidence, in particular the testimonies of one of the co-accused. In addition, the court stated that there was a serious risk that the applicant might attempt to influence the co-accused and the witnesses and thus obstruct the proper course of the proceedings, since as an imprisoned person he was entitled in particular to have breaks in serving the penalty and to correspond without any censorship. On 26 October 1999 the Gdańsk Regional Court upheld the decision. 7. Subsequently, the applicant’s detention was prolonged on several occasions (on 4 October and 9 December 1999, 8 March and 12 September 2000, 27 March, 26 July and 5 September 2001, 30 January, 24 April, 18 September and 31 October 2002, 28 January, 24 April, 21 June, 9 July, 14 October and 16 December 2003, 23 March and 16 September 2004, 25 January, 25 May, 21 July, 22 September and 6 December 2005, and 2 March 2006). The courts based their decisions on the reasonable suspicion that the applicant had committed the offence concerned, the severity of the penalty he faced and the risk of his collusion and absconding. During the preparatory proceedings the extension of his detention was also justified by the need to obtain further evidence, in particular to obtain expert opinions, to make inquiries at his home, to take evidence from the suspects and to confront them. 8. From 15 September 1999 to 10 April 2000 the applicant served a prison sentence imposed on him in separate proceedings. 9. The applicant lodged a considerable number of applications for release from detention or for commutation of the preventive measure to a less severe one, on the ground of his poor state of health or other reasons (on 20 September 2000, 20 August and 7 November 2002, 17 February 2003, 27 April, 17 June and 17 October 2004 and 17 July 2005); however, they were dismissed in decisions of 3 October 2000, 27 June 2002, 3 July 2002, 27 February 2003, 25 May 2004, 22 June 2004, 12 October 2004, 10 October 2005, 13 December 2005, and 31 January and 16 March 2006. 10. The applicant also challenged the decisions prolonging his detention, but those applications were likewise dismissed on 26 October 1999, 8 August and 3 October 2001, 22 May and 23 October 2002, 6 August 2003, 13 January and 11 July 2004, and 25 January, 14 June, 14 September, 19 October and 28 December 2005. 11. During the preparatory proceedings twelve persons (including the applicant) were arrested. The public prosecutor took evidence from 25 witnesses and the suspects were interviewed 32 times. 46 expert opinions were obtained, 17 confrontations and 24 searches of individuals, premises and other places were carried out and identity parades were conducted on eight occasions. Numerous documents were obtained, in particular bills of phone calls made by the suspects, their criminal records and copies of judgments. 12. From 10 April 2000 to 10 November 2001 the applicant served a sentence of one year and seven months’ imprisonment imposed on him in separate proceedings. 13. The applicant was indicted before the Gdańsk Regional Court on 1 September 2000. The bill of indictment concerned 61 charges and 12 accused (eight of whom, including the applicant, were detained). The applicant was charged with illegal possession of firearms, two armed robberies, one robbery involving the use of dangerous implements and resulting in serious injuries, and participation in an organised armed criminal gang. Charges against the other accused also concerned attempted murder, theft, burglary and handling stolen goods. The public prosecutor requested the court to examine nine experts and 78 witnesses and to read out the testimonies of a further 49 witnesses. The case file at that date comprised 22 volumes and the bill of indictment with the statement of reasons ran to more than 70 pages. 14. In the period from 14 November 2000 to 3 October 2002 the first-instance court held 30 hearings. In addition five separate sittings were held at which the court decided to prolong the applicant’s detention, and on two occasions witnesses were examined away from the court’s premises. Two hearings had to be cancelled, on grounds not attributable to the court. 15. From 10 November 2001 to 16 April 2004 the applicant served a prison sentence imposed on him in separate proceedings. 16. On 14 and 15 November and 20 December 2000 the court held hearings. It decided to examine the case against one of the co-accused separately as his serious illness could have led to delays in the proceedings, and heard evidence from an expert and nine defendants, including the applicant. 17. The hearing scheduled for 23 January 2001 was adjourned as one of the accused revoked his lawyer’s power of attorney. As a result the hearing scheduled for the next day had to be cancelled as well. 18. The hearing scheduled for 14 March and 18 April 2001 was cancelled because the defendants had not appeared in court. The court contacted the relevant police headquarters and instructed them to supervise and secure the appearance of the detainees. 19. Between 26 April and 7 November 2001 eight hearings were held and the court examined the defendants and a total of 47 witnesses. At a hearing of 30 August 2001 the court requested the Gdańsk Court of Appeal to extend the applicant’s detention until 28 February 2002. The trial court repeated the grounds given in earlier decisions on his detention. In addition it pointed to the increased risk of collusion since one of the other defendants had significantly changed his version of events at a previous hearing. The Court of Appeal granted the request on 5 September 2001, fully endorsing the reasons given by the first-instance court. It also noted that the proceedings were being conducted swiftly and that it had not been possible to terminate them for reasons not attributable to the trial court. 20. Between 19 December 2001 and 13 June 2002 the court held 11 hearings during which the co-accused, eight experts and 39 witnesses were examined and seven other witnesses refused to make any statements. 21. The hearing scheduled for 27 June 2002 had to be adjourned owing to the absence of one of the co-defendants and the lawyers of two others. The court decided to address the relevant bodies of the Bar Association and ordered the detention of the absent defendants. 22. Between 10 July and 25 October 2002 seven hearings were held and the parties, an expert and ten witnesses gave evidence. The court read out testimonies of eight other witnesses, taken in the preparatory proceedings. 23. On 31 October 2002 the Gdańsk Regional Court sentenced the applicant to seven years’ imprisonment and a fine of 3,000 Polish zlotys (PLN). The length of his detention on remand was not deducted from the sentence because during the whole proceedings at issue the applicant had been serving a prison sentence imposed on him in separate proceedings. The judgment, with its reasoning, ran to more than 80 pages. 24. The applicant and other co-defendants appealed. 25. The appellate hearing scheduled for 30 October 2003 was adjourned because the court decided (at the request of the lawyer of one of the co-accused) to obtain an expert opinion on the co-accused’s mental state and to hear evidence from an expert. 26. On 1 December 2003 the Gdańsk Court of Appeal quashed the judgment in respect of eight of the accused, including the applicant, and remitted the case to the first-instance court, having found infringements of procedural law which might have influenced the outcome of the case. 27. In the period from 22 June 2004 to 28 March 2006 the Gdańsk Regional Court held 23 hearings; another seven were cancelled for various reasons. In addition, nine separate sittings were held at which the court decided on the applicant’s detention. 28. At this stage of the proceedings all the defendants, including the applicant, became very active. In particular, the applicant challenged all subsequent decisions concerning his detention, requested copies or records after almost all the hearings, on three occasions requested the court to transfer the case file to the detention centre in order to acquaint himself with its contents, made numerous applications for evidence to be adduced, for example requesting several expert opinions or the examination of witnesses, and lodged a considerable number of other applications. 29. The hearings scheduled for 4 and 25 May, 2, 8 and 22 June 2004 were cancelled or adjourned because of the illness of a judge or the absence of defendants. The court appointed a new lawyer to replace one who had fallen ill. 30. Between 7 September and 10 December 2004 the Regional Court held five hearings and examined 19 witnesses. Several other witnesses refused to testify or were absent. 31. From 9 December to 26 December 2004 the applicant served a prison sentence imposed in separate proceedings against him. 32. A hearing scheduled for 4 January 2005 had to be adjourned owing to the absence of a co-defendant’s lawyer. The court decided to contact the relevant bodies of the Bar Association on this matter. 33. Between 18 January and 30 June 2005 six hearings were held and an expert and 40 witnesses gave evidence; a further ten were absent. The court imposed a fine on one witness who failed to appear at a hearing. Two hearings were cancelled owing to the illness of a judge or the absence of a witness. 34. On 10 August 2005 the Gdańsk Court of Appeal dismissed the applicant’s complaint under the 2004 Act on the breach of the right to a trial within a reasonable time, considering that on the date of entry into force of the 2004 Act the proceedings had not exceeded the reasonable-time requirement. The court thoroughly analysed the proceedings before and after that date. It noted that the actual length of the proceedings, even if the applicant had not contributed to it, could not be taken as the only criterion for holding that the time taken was excessive. In the court’s opinion, the length of the proceedings could be found to be unreasonable if undue delays caused by inactivity or improper actions on the part of the court had occurred. The court did not establish any such circumstances in the case at issue and pointed to its extreme complexity, with the large number of plots and individuals involved, as the main cause of the length of the proceedings. The court noted that the trial court had conducted the proceedings in a proper way and had taken appropriate measures to discipline witnesses and other persons in the event of their absence. 35. Between 4 October 2005 and 28 March 2006 the Regional Court held four hearings and five others had to be adjourned owing to the illness of a judge, the absence of a lawyer or a lack of police officers to guard the defendants on their way from the detention centre to the court. The testimonies of three witnesses were heard and those of absent witnesses were read out. 36. The proceedings are currently pending before the Regional Court. 37. The relevant domestic law concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other so-called “preventive measures” (środki zapobiegawcze) is 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). 38. The relevant domestic provisions and practice concerning the State’s liability for a tort committed by its official, in connection with a right to a trial within a reasonable time, have already been cited in previous cases against Poland (see, for example, Rybczyńscy v. Poland, no. 3501/02, 3 October 2006, and Białas v. Poland, no. 69129/01, 10 October 2006). | 1 |
dev | 001-5206 | ENG | NLD | ADMISSIBILITY | 2,000 | VARISLI v. THE NETHERLANDS | 4 | Inadmissible | Elisabeth Palm;Gaukur Jörundsson | The applicant is a Turkish national, born in 1969, and, at the time of the introduction of the application, was detained in the Netherlands. He is represented before the Court by Mr G.P. Hamer, a lawyer practising in Amsterdam. On 17 February 1993, the applicant, an employee of the Netherlands Railway Company, was arrested and taken into detention on suspicion of embezzlement and of having been involved in a robbery committed on 24 October 1992 at the Amsterdam Central Station. On 12 May 1993, following the applicant’s appeal against a decision of 25 March 1993 prolonging his pre-trail detention, the Court of Appeal (Gerechtshof) of Amsterdam ordered the applicant’s release from pre-trial detention. After an initial summons had been withdrawn, the applicant was summoned to appear on 15 December 1993 before the Regional Court (Arrondissementsrechtbank) of Amsterdam. The judges dealing with his case would be Ms O. as President, and Ms P. and Mr B. On 25 November 1993, the applicant filed an objection (bezwaar) against the summons. On 15 December 1993, after having deliberated, the Regional Court sitting in chambers (Arrondissementsrechtbank in Raadkamer), composed of Ms O., Ms P. and Mr B., rejected the objection. Subsequently and on the same day, the Regional Court commenced its examination of the charges brought against the applicant. As the composition of the Regional Court was the same as that of the Regional Court sitting in chambers that had rejected the objection against the summons, the defence challenged (wraking) the three judges. After having deliberated, three other judges of the Regional Court rejected the challenge. The Regional Court, in its original composition, then resumed its examination of the applicant’s case. In the course of 15 December 1993, the Regional Court took a short break in order to hand down its judgment in the criminal proceedings that had been brought against the coaccused R.M. Sitting in the same composition as in the applicant’s case, the Regional Court convicted R.M. of the robbery committed on 24 October 1992. After having become aware of this, the applicant challenged the Regional Court for a second time when later that day the court resumed its examination of his case. After having deliberated, three other judges of the Regional Court rejected the challenge. The Regional Court, in its initial composition, resumed its examination. It considered a request of the defence to take evidence from eleven witnesses, ordered that evidence should be taken from four of them and adjourned its further examination. On 9 March 1994, the Regional Court heard evidence from the four witnesses whose appearance it had ordered on 15 December 1993 and heard the parties’ final pleadings. In its judgment of 23 March 1994, the Regional Court convicted the applicant of robbery committed on 24 October 1992 at the Amsterdam Central Station, and participation in the commission of unlawful deprivation of liberty and embezzlement. The applicant filed an appeal with the Court of Appeal (Gerechtshof) of Amsterdam. On 13 July 1994, the Court of Appeal started its examination of the applicant’s appeal. Further hearings were held on 9 November 1994 and 21 December 1995, in the course of which the Court of Appeal, inter alia, heard a number of witnesses. In its judgment of 4 January 1996, the Court of Appeal quashed the judgment of 23 March 1994. On the basis of the full rehearing on both facts and law that had taken place before it, the Court of Appeal convicted the applicant of participation in a robbery and embezzlement, acquitted him of the remaining charges and sentenced him to four years’ imprisonment. It rejected the argument advanced by the defence that, given the composition of the Regional Court, the case should be referred back to the Regional Court as the Regional Court that had convicted the applicant could not be considered as an impartial tribunal in that the same judges had rejected the applicant’s objection against the summons and had already formed a view on the matter in that they had already convicted a co-accused. The applicant filed an appeal in cassation with the Supreme Court (Hoge Raad). By judgment of 6 May 1997, the Supreme Court rejected the applicant’s appeal in cassation. It rejected the applicant’s arguments in relation to the alleged partiality of the Regional Court. | 0 |
dev | 001-78821 | ENG | UKR | CHAMBER | 2,006 | CASE OF SLUKVINA v. UKRAINE | 4 | Violation of Art 6-1;Violation of P1-1;Not necessary to examine Art 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Peer Lorenzen | 4. The applicant was born in 1936 and resides in the town of Novogrodivka, Donetsk region, Ukraine. 5. The applicant instituted proceedings in the Novogrodivskyy Town Court of Donetsk Region against the Novogrodivska Mining Company No. 1/3 (Шахта 1/3 «Новогродівська») - a State-owned enterprise - to recover salary arrears and other payments due to her late husband. 6. On 28 May 2001 the Novogrodivskyy Town Court found in favour of the applicant (Рішення Новогродівського міського суду Донецької області) and awarded her 23,741.84 Ukrainian hryvnias (“UAH”). The judgment was sent for enforcement to the Novogrodivskyy Town Bailiffs' Service (Відділ Державної виконавчої служби Новогродівського міського управління юстиції). 7. Subsequently, the applicant instituted proceedings in the Novogrodivskyy Town Court of the Donetsk Region against the Novogrodivskyy Town Bailiffs' Service for failure to enforce the judgment in her favour. On 20 December 2001 the Town Court rejected the applicant's claim, finding no fault had been committed by the Bailiffs' Service. The court stated that the Bailiffs' Service had acted properly in enforcing the judgment of 28 May 2001. However, by a number of decisions of the Commercial Court of the Donetsk Region, the Bailiffs' Service had been prohibited from selling the property of the Mining Company, due to the bankruptcy proceedings which had been initiated against the company. On 14 March 2002 the Supreme Court of Ukraine rejected the applicant's appeal in cassation. 8. In August 2002, the applicant instituted another set of proceedings in the Novogrodivskyy Town Court of the Donetsk Region against the Novogrodivskyy Town Bailiffs' Service for failure to enforce the judgment in her favour. On 10 October 2002 the Town Court rejected the applicant's claim, for the same reasons as before. On 16 December 2002 the Donetsk Regional Court of Appeal upheld the decision of the first instance court of 10 October 2002. On 22 October 2003 the Supreme Court of Ukraine rejected the applicant's appeal in cassation. 9. In February 2003 the Novogrodivska Mining Company was reorganised and became a structural subdivision of the Selidovugol Mining Company. As the latter thereby became the debtor, in February 2004 the enforcement proceedings were transferred to the Selidivskyy Town Bailiffs' Service (Відділ Державної виконавчої служби Селидівського міського управління юстиції). 10. The judgment in the applicant's favour was enforced by instalments, the last amount being paid on 31 August 2004. 11. The applicant instituted proceedings in the Selidivskyy Town Court of the Donetsk region against the Selidivskyy Town Bailiffs' Service claiming compensation for material and moral damage caused to her by the delay in the enforcement of the judgment in her favour. On 24 November 2004 the court found against the applicant. On 21 July 2005 the Donetsk Regional Court of Appeal upheld this judgment. The applicant appealed in cassation and the proceedings are still pending. 12. The relevant domestic law is summarised in the judgment of Sokur v. Ukraine (no. 29439/02, § 17-22, 26 April 2005). | 0 |
dev | 001-61284 | ENG | ITA | CHAMBER | 2,003 | CASE OF TEMPESTI CHIESI AND CHIESI v. ITALY | 4 | Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 4. The applicants were both born in 1940 and live in Florence. 5. They are the owners of a flat in Florence, which they had let to A.Q. 6. In a writ served on the tenant on 14 September 1984, the applicants informed him of their intention to terminate the lease on expiry of the term on 31 December 1987 and summoned him to appear before the Florence Magistrate. 7. By a decision of 14 November 1984, which was made enforceable on the same day, the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1988. 8. In the meanwhile the tenant died and his wife refused to leave the premises. 9. On 25 September 1989, the applicants made a statutory declaration that they urgently required the premises as accommodation for their son. 10. On 16 November 1989, the applicants served notice on the tenant requiring her to vacate the premises. 11. On 6 December 1989, they served notice on the tenant informing her that the order for possession would be enforced by a bailiff on 31 January 1990. 12. Between 31 January 1990 and 8 February 2001, the bailiff made twenty-one attempts to recover possession. Each attempt proved unsuccessful, as the applicants were never granted the assistance of the police in enforcing the order for possession. 13. In the meanwhile, on 1 December 1998, the applicants made a second statutory declaration that they urgently required the premises as accommodation for their son. 14. Pursuant to section 6 of Law no. 431/98, on 9 July 1999, the tenant asked for a suspension of the enforcement proceedings. The Florence Magistrate suspended the proceedings until 8 February 2001. 15. On 9 March 2001, the applicants recovered possession of the flat. 16. Since 1947 the public authorities in Italy have frequently intervened in residential tenancy legislation with the aim of controlling rents. This has been achieved by rent freezes (occasionally relaxed when the Government decreed statutory increases), by the statutory extension of all current leases and by the postponement, suspension or staggering of the enforcement of orders for possession. The relevant domestic law concerning the extension of tenancies, the suspension of enforcement and the staggering of evictions is described in the Court’s judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V. 17. As regards the control of the rents, the evolution of the Italian legislation may be summarised as follows. 18. The first relevant measure was the Law no. 392 of 27 July 1978 which provided machinery for “fair rents” (the so-called equo canone) on the basis of a number of criteria such as the surface of the flat and its costs of realisation. 19. The second step of the Italian authorities dated August 1992. It was taken in the view of progressive liberalisation of the market of tenancies. Accordingly, a legislation relaxing on rent levels restrictions (the so-called patti in deroga) entered into force. Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price. 20. Lastly, Law no. 431 of 9 December 1998 reformed the tenancies and liberalised the rents. 21. The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat. In this regard, Article 1591 of the Italian Civil Code provides: “The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until the date when he leaves, together with other remaining damages”. 22. However, Law no. 61 of 1989 set out, inter alia, a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease, proportionally increased according to the cost of living (Article 24 of Law no. 392 of 27 July 1978) plus 20%, along the period of inability to dispose of the possession of the flat. 23. In the judgment no. 482 of 2000, the Constitutional Court was called upon to decide whether such a limitation complied with the Constitution. The Constitutional Court held that it was compatible with the Constitution with regard to periods of time during which the suspension of the evictions was determined by law. The Constitutional Court explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation, when the housing shortage made the suspension of the enforcement necessary. While evictions were suspended ex lege, the law predetermined the quantum of the reimbursement chargeable to the tenant, both measures being temporary and exceptional. Besides, the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages. 24. The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention. Accordingly, it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant. | 1 |
dev | 001-4626 | ENG | POL | ADMISSIBILITY | 1,999 | SULIMENKO v. POLAND | 4 | Inadmissible | Matti Pellonpää | The applicant is a Polish national, born in 1948. He is currently serving a prison sentence in Wronki prison. In 1990 the applicant had an accident in which his right thigh and left foot were broken. Subsequently he underwent an orthopaedic operation. On 31 May 1991 the Międzyrzecze District Court sentenced the applicant to ten years imprisonment. On 7 May 1993 the same court convicted the applicant of another offence and pronounced another prison sentence. On 25 August 1993 the Poznań Regional Court granted the applicant a temporary suspension of the execution of his sentence and ordered his release so that he could undergo a further operation in a specialised orthopaedic hospital. The court observed that the applicant’s condition necessitated a further operation on his left foot, in particular in the light of a lack of progress in the treatment he had received. It appears that, while at liberty, the applicant did not report to a hospital. Subsequently he was rearrested and began to serve his sentence again. On 25 March 1994 the applicant was convicted of another offence and again sentenced to imprisonment. On 17 April 1996 the Poznań Regional Court dismissed the applicant’s request for release, considering that, according to a medical certificate, the recommended treatment could be provided by the prison medical services. The applicant lodged two complaints with the Central Prison Administration in which he submitted that he was not afforded adequate medical treatment in Wronki prison. In its reply of 12 June 1996, the Poznań Custody Centre, to which the complaint had been forwarded for investigation, informed him that his medical records had been examined. It transpired therefrom that the applicant had been regularly receiving analgesics as he had been refusing to consent to an operation in the prison hospital. It was further stated that his complaints relating to the alleged lack of diligence on the part of the prison physicians, and in particular his allegations that the medical certificates issued by them falsified his actual condition and were thus in breach of the law, were unfounded. On an unspecified later date the applicant complained to the Ombudsman about the allegedly inadequate medical care he received in prison. In a reply dated 21 June 1996 the Ombudsman’s office informed the applicant that his complaint had been investigated. That Office had found that the applicant’s right to medical care was secured by the prison authorities and, in particular, that the recommended operation could be carried out in a prison hospital. The applicant was refusing consent to an operation in a prison hospital and had been seeking a temporary release on medical grounds. It was stressed that in the past the applicant had twice obtained a temporary release, but he had not undergone any treatment while at liberty. On 3 July 1996 the Poznań Regional Penitentiary Court, sitting as a single judge, dismissed the applicant’s request for temporary release. The court stated that the applicant’s condition did not necessitate treatment in a public hospital, whereas he refused to consent to a treatment in a prison hospital. The applicant did not offer any guarantee that, if released, he would indeed undergo the required treatment as during his last temporary release in 1994 he had been heavily drinking and had committed a new offence. Since the prison medical services could provide the applicant with the recommended treatment, there were no grounds militating for his release. The applicant lodged an appeal with the Poznań Regional Court, sitting in a panel of three judges, which was dismissed on 24 July 1996. The court had before it a medical certificate of 21 June 1996 which stated that the applicant had had his right leg broken and that, as a result of this accident, he had a so-called false joint in his foot. There were no medical indications that the applicant’s condition was incompatible with his detention and that he could not be treated by the prison medical services. The court considered that it was self-evident that the applicant’s continuous refusal to be treated by the prison medical services was in fact a ruse aimed at obtaining release. His assertions that the treatment in prison would not bring about any satisfactory results were to be regarded as lacking any reasonable basis. In the light of the applicant’s persistent refusal to co-operate with the medical services, the entire responsibility for his health was his. The court further took into consideration the fact that, when released in 1991, the applicant had failed to report to a hospital for the recommended operation and had been drinking heavily, as shown by the fact that after he had been re-arrested, he had manifested symptoms of deprivation of alcohol, typical for alcohol addicts. Afterwards he had three times obtained temporary releases, on each occasion in order for him to follow the treatment of his orthopaedic ailment, and on each occasion he had failed to do so. On 9 January 1997 the applicant refused to undergo a medical examination at the Orthopaedic Department of Warszawa-Mokotów prison hospital. By a letter of 7 August 1996 the Central Prison Administration replied to the applicant’s complaint that his earlier complaint had not been adequately investigated by the Poznań Custody Center, and stated that his allegations were entirely unfounded. On 13 August 1997 the Poznań Regional Penitentiary Court refused to release the applicant, having regard to a medical certificate, stating that the treatment of the applicant’s condition could be provided by the prison medical services. On 24 September 1997 the Poznań Regional Penitentiary Court, having considered a medical certificate of 18 September 1997, refused to release the applicant and held that he could obtain the necessary medical treatment at the hospital of Warszawa-Mokotów prison. By a letter of 17 November 1997 the Poznań Regional Prison Administration replied to a complaint by the applicant about the allegedly inadequate medical care extended to him. It stated that the applicant, following the 1990 accident, had pains in his left foot and right leg after long walks. He also had painful spots and a so-called false joint in his left foot. An operation, which would alleviate his problems, could be carried on in the prison hospital, but the applicant refused to give his consent. In the past the applicant had been twice granted temporary release, which was later revoked in view of the applicant’s failure to follow the recommended treatment. In view of his refusal of consent for treatment, the applicant was receiving analgesics to soothe his pain. It was further stated that the applicant’s allegations that a physician of the Wronki prison was deliberately issuing untruthful medical certificates was unsubstantiated, the more so as the head physician of the prison delivered medical certificates concerning the applicant’s condition which were consistent with those impugned by the applicant. On 17 December 1997 the Poznań Regional Penitentiary Court refused to order the applicant’s release in view of the fact that he could obtain the necessary treatment at the hospital of Warszawa-Mokotów prison. On 11 February 1998 the Poznań Regional Penitentiary Court refused to order the applicant’s release for the same reason. On 29 July 1998 the Poznań Regional Penitentiary Court, taking into consideration the medical certificate of 16 July 1998, found no grounds on which to order the applicant’s release. | 0 |
dev | 001-80077 | ENG | BGR | CHAMBER | 2,007 | CASE OF IVAN VASILEV v. BULGARIA | 3 | Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 3;Violation of Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings | Peer Lorenzen | 6. On the evening of 14 May 1994 the applicant, at that time aged fourteen, went out with several friends in the centre of Vidin to play electronic games. On the way back he left the main group to see a classmate of his and her sister to their door. After he had walked the girls home at about 9.40 p.m., he ran back to rejoin his friends. The applicant was wearing shorts, a yellow teeshirt and a green sleeveless jacket. 7. On the same evening, some time after 9.00 p.m., the Vidin police received a report that an icecream booth in the centre of the town had been vandalised by two individuals. A police patrol was dispatched to the scene and arrested the first of them, but the second managed to get away. All patrols in the area were put on alert and ordered to track him down. The description given over the police radio was of a man wearing short pants and a lightcoloured teeshirt. 8. At that time Mr G.G. and Mr V.E., both trainee police officers, were in the area of the incident, patrolling in Mr V.E.'s private car. Although they were supposed to be accompanied by a supervising police officer, chief sergeant A., they were patrolling by themselves, as sergeant A. had been dispatched elsewhere. Their car was in a street which was not well lit. Seeing the applicant running past the car, they assumed that he was the offender at large. They got out of the car and gave chase. The applicant heard their steps, but, seeing that they had come out of an unmarked rather than a police car, kept on running. It was disputed whether or not Mr G.G. and Mr V.E. had shouted “Stop! Police!” after the applicant. They submitted that they had done so, whereas the applicant and several witnesses stated that they had not heard the officers shouting. The chase continued for about a minute. The applicant ran by a Mr I.P. Shortly afterwards, Mr G.G. caught up with the applicant in front of a beauty parlour and apparently tripped him over. The applicant fell on the ground, face down. Mr G.G. then started hitting the applicant's back and legs with a truncheon and kicking his torso. Soon after that Mr V.E. caught up with them and also started hitting the applicant's back and legs with a truncheon and kicking his torso. The applicant averred that Mr V.E. had sat on his back and had delivered several truncheon blows to his head. The applicant was crying and begging the officers to stop, insisting that he had done nothing wrong. Mr I.P. was an eyewitness to the incident, and so were a Mr P.S. and a Mr V.K. 9. Shortly afterwards, chief sergeants A.K. and I.G. arrived at the scene. By that time the physical assault on the applicant had stopped. The applicant was lying on the ground and Mr G.G. and Mr V.E. were standing beside him. The applicant's teeshirt was soaked with blood coming from the neck area. 10. Chief sergeants A.K. and I.G. helped the applicant get into their patrol car. On the way to the hospital they stopped at a fountain and told him to wash the blood off his neck. The applicant told the officers that he felt pain in his legs and in his right lumbar area. 11. The applicant was admitted to the emergency ward of the Vidin Regional Hospital at 10.01 p.m. Upon his admission he stated that he could not see. His blood pressure was measured to be 70/0. It was found that he had a traumaticlacerated injury on the back of his head. He was also complaining of severe pain in the area of the right kidney. He was taken to the surgical ward and the injury on his head was treated. 12. From the hospital the applicant was taken to the police station, where he was questioned at about 10.30 p.m. It was established that he had nothing to do with the breaking of the icecream booth. After the questioning an officer took the applicant home. When the applicant's mother saw the state the applicant was in, she asked a friend to drive the applicant and herself back to the emergency ward of the Vidin Regional Hospital. There she was informed that the applicant had already been treated and that there was nothing more the staff could do, as there were no doctors on the ward at that time, only paramedics. 13. The applicant and his mother then went to the police station to find out why he had been beaten and apprise the police of the names of the eyewitnesses to the incident. They were given the names of the officers who had assaulted the applicant and sometime around midnight left the station and went home. 14. When the severe pain in the applicant's right lumbar area continued through the night and blood showed up in his urine, a doctor was called in and examined the applicant at 2.10 a.m. on 15 May 1994. He found that the applicant had a reddening of the skin in the groins, parallel traces of blood suffusions and grazes on the calves, three on the left leg and two on the right leg, and a head injury. 15. At 9.15 a.m. on 15 May 1994 the applicant went once more to the emergency ward of the Vidin Regional Hospital. At 10 a.m. he was admitted to the surgical ward. He was diagnosed as suffering from contusion in the right lumbar area, commotion of the right kidney and haematuria (blood in the urine), and was treated with styptics and antibiotics. He remained in hospital until 28 May 1994. 16. Two days later, on 30 May 1994, the applicant was urgently admitted to the urology centre of the Medical Academy in Sofia because of macroscopic haematuria (high levels of blood in his urine) and sustained dull pain in his right lumbar area. His right kidney was found to be surrounded by a haematoma and retaining liquid. It was established that his blood pressure was 140/100 because of, among other reasons, the pressure from the haematoma on the kidney. The applicant was treated with spasmolytics, analgesics and antibiotics. The applicant had to be released on 13 June 1994 due to an inhospital infection outbreak. 17. Throughout the following years the applicant underwent numerous examinations of his right kidney. 18. On 15 July 1996 the applicant was admitted to the urology ward of the National Institute for Urgent Medical Care “Pirogov”, after complaining from dull pain in his right lumbar area. He was diagnosed as suffering from hydronephrosis of the right kidney (pathological chronic enlargement of the collecting channels of a kidney, leading to the compression and the eventual destruction of kidney tissue and the deterioration of the kidney function). On 22 July 1996 he underwent surgery and his right kidney was removed. On 9 August 1996 he was released from hospital. 19. On 14 May 1994 the applicant's mother complained about his beating to the Vidin Regional Prosecutor's Office. On 16 May 1994 the applicant's father also lodged a complaint with the Vidin District Prosecutor's Office. 20. On 21 June 1994 the Pleven Military Prosecutor's Office, which was competent to deal with offences allegedly committed by police officers, opened criminal proceedings against Mr G.G. and Mr V.E. 21. The investigator to whom the case was assigned conducted a series of interviews on 27, 28 and 29 June 1994. He questioned the applicant, Mr I.P., Mr V.K. and several other witnesses. On 16 and 17 August 1994 the investigator questioned chief sergeant A.K. and two other police officers. 22. On 17 August 1994 Mr G.G. and Mr V.E. were charged and questioned. During questioning Mr G.G. stated that he had tripped the applicant but had not subjected him to any other violence. Mr V.E. stated that he had only hit the applicant once with a truncheon on the legs, but had not subjected him to any other violence. 23. On an unspecified date the investigator ordered a medical expert report to determine the extent of the applicant's injuries. The report was drawn up by Dr A.I., head of the forensic medicine ward of the Vidin Regional Hospital. She found that the applicant had had a wound on his head, haematomas and grazing on his legs, contusion of the right lumbar area and haematuria. She concluded that the beating had caused the applicant a shortterm lifethreatening health disorder, due to a traumatic-haemorrhagic shock resulting from the contusion of the right kidney and a massive haematoma around the kidney. 24. On 6 July 1995 the applicant's mother, acting for the applicant, who was still underage, submitted a civil claim against Mr G.G. and Mr V.E. She sought 400,000 old Bulgarian levs (BGL) on the applicant's behalf. 25. Another series of interviews was conducted on 20 September 1995 by another investigator at the Pleven Regional Military Prosecutor's Office. Mr V.K. and Mr P.S. were questioned. 26. On 3 November 1995 the Pleven Military Prosecutor's Office submitted to the Pleven Military Court an indictment against Mr G.G. and Mr V.E., charging them with causing intermediate bodily harm to the applicant. On 6 November 1995 the case was set down for hearing. 27. The first hearing took place on 12 February 1996. Mr G.G. and Mr V.E. were represented by Mr L.I., a former military prosecutorgeneral. The applicant, who was also represented by counsel, amended his civil claim, seeking interest as from the date of the beating and naming the Vidin Regional Directorate of Internal Affairs as a third defendant. The court heard Mr G.G., Mr V.E., the applicant, the applicant's mother, chief sergeant A.K., several other police officers, Mr I.P., Mr V.K. and Mr P.S. Noting that the statements of the accused differed from those of the eyewitnesses, the court carried out a confrontation. Finally, the court heard Dr A.I., the medical expert who had given an opinion about the extent of the applicant's injuries. The accused disputed Dr A.I.'s conclusions and requested a new medical report to be drawn up by three experts, excluding Dr A.I. The court acceded to the request and ordered a new expert report, to be drawn up by three medical experts. 28. In their report the three medical experts (Dr P.L., head of the forensic medicine and ethics department of the High Institute of Medicine in Pleven, Dr V.G., head of department at the Urology Clinic of the Institute, and Dr K.P., senior assistant at the anaesthesiology and intensive care departments of the Institute) concluded that as a result of the 14 May 1994 incident the applicant had suffered a contusion of the right kidney, haematomas and grazing of the two legs, a wound on the head and a reddening in the right part of the groins. Unlike Dr A.I., they concluded that the traumaticneurogenic shock suffered by the applicant had not become truly lifethreatening. They also found that before the incident the applicant had been suffering from a congenital kidney anomaly, which had been the reason for the applicant's haematuria after the incident. In the experts' view, the applicant's kidney injury had not been lifethreatening and had had no longlasting effects on his health. The beating had caused the applicant only a temporary (two or threeweek) health problem. 29. The next hearing took place on 19 June 1996. The court heard the three medical experts, who stated that they adhered to the conclusions given in their report. The prosecutor noted that the first report, drawn up by Dr A.I., and the second report, drawn up by the three medical experts, substantially differed on the issue of the extent of the injuries suffered by the applicant. He therefore requested an additional expert report, to be drawn up by five experts, including Dr A.I. The court acceded to the request. 30. On 20 May 1997 the report of the five medical experts was ready. They concluded that the applicant had suffered a traumaticneurogenic shock, which, however, had not deteriorated and had not become lifethreatening. They also concluded that before the incident the applicant had been suffering from a congenital kidney anomaly, which had been the reason for his haematuria after the incident. In the experts' view, the applicant's kidney injury had not become lifethreatening. As regards the later surgical removal of the kidney and its potential causal link with the beating, the experts were of the opinion that, in view of the long time-span between the beating (14 May 1994) and the surgery (22 July 1996) and the nature of the injury, it could not be concluded that the removal of the kidney had been a direct and proximate consequence of the beating. Additionally, the applicant's congenital kidney anomaly had been prone to natural deterioration and could have led on its own to a decline in the kidney function, which was what had made the removal necessary. It could not be categorically established that the beating had not contributed to the need for the removal of the kidney, but the main factor had been the congenital anomaly. 31. After several adjournments due to difficulties with the attendance of all five medical experts, the Pleven Military Court listed a hearing for 26 January 1998. At that hearing the court heard all five medical experts. Four of them stated that they adhered to the conclusions made in their report. By contrast, Dr A.I. stated that she did not agree with the conclusions of the report and that she still maintained the opinion expressed in her initial report. The applicant presented Xrays of his kidneys and, after examining them, the four experts stated that they still adhered to the conclusions reached in their report. The applicant increased his civil claim to BGL 10,000,000. In his concluding argument the public prosecutor stated that, in view of the experts' opinion, he did not pursue the charge of intermediate bodily harm, and urged the court to characterise the officers' act as inflicting minor bodily harm. 32. In a judgment of 26 January 1998 the Pleven Military Court found Mr G.G. and Mr V.E. guilty of inflicting the applicant minor bodily harm and not guilty of inflicting him intermediate bodily harm. It sentenced them to five months' imprisonment, suspended for three years. The court also partially allowed the applicant's claim for damages, awarding him BGL 300,000, to be paid jointly and severally by the two officers and the vicariously liable Regional Directorate of Internal Affairs in Vidin. 33. The court found that Mr G.G. had tripped the applicant and that the applicant had fallen on the ground face down. After that Mr G.G. had delivered a number of blows on the applicant's back and legs with a truncheon and had kicked several times his torso. When Mr V.E. had arrived he had also hit the applicant's back and legs with a truncheon and had kicked his torso. During the beating the applicant had told the two accused that he had done nothing wrong. The court stated that it did not find the accused's averment that they had not beaten the applicant persuasive, because it was disproved by the testimony of two eyewitnesses – Mr I.P. and Mr V.K. – and of the applicant himself. The court considered that the eyewitnesses' and the applicant's testimony was consistent and reliable. 34. The court also examined the officers' assertion that they had acted lawfully, in a situation calling for the arrest of a suspect, and that they had inflicted bodily harm in their efforts to subdue the applicant. In that connection, it noted that the accused were substantially stronger physically than the applicant, that Mr I.P., Mr V.K. and chief sergeant A.K. had testified that the applicant had not tried to resist, and that at the time of the incident the applicant had been fourteen years old. The court accordingly rejected the assertion. 35. As regards the extent of the applicant's injuries, the court held that the opinion of the four medical experts, which appeared objective, impartial, consistent, wellreasoned and in conformity with the medical documents in the case file, should be given more credit than that of Dr A.I. In the court's view, the four experts' arguments confuted her opinion. The court therefore held that as a result of the beating the applicant had suffered a temporary (two or threeweek) nonlifethreatening health disorder, which amounted to minor bodily harm within the meaning of Articles 128 to 130 of the Criminal Code of 1968 (“the CC”). 36. Finally, the court rejected Mr G.G. and Mr V.E.'s defence under Article 12a of the CC that they had only used the force necessary to arrest a presumed offender, injuring the applicant in the process of subduing his resistance. The court acknowledged the great disparity in terms of physical strength between the two policemen and the applicant. Moreover, the other witnesses had clearly indicated that the applicant had not put up any resistance requiring the use of force. Finally, at the time of the incident the applicant had been only fourteen years old and his age was visible from his physical features. 37. Mr G.G. and Mr V.E. appealed, arguing that their actions had not constituted an offence, as they had acted within the bounds allowed by the National Police Act of 1993. In the alternative, they submitted that the sentences imposed on them were too harsh. The applicant also appealed, arguing that the amount of damages awarded to him was too low. 38. The Military Court of Appeals held a hearing on 8 June 1998. The officers were represented by their counsel, Mr L.I. The applicant was represented by two lawyers. 39. In a judgment of 8 June 1998 the Military Court of Appeals upheld the Pleven Military Court's judgment. It held that the manner in which the applicant's injuries had been caused had been correctly established by the lower court. There existed direct evidence that the applicant had been subjected to violence even after he had been brought to the ground and had not had the possibility to resist or run away. Even if the officers had misidentified the applicant, this had not legally justified the physical assault that they had inflicted on him. Moreover, the use of force had continued after the applicant had been subdued. There existed a direct causal link between the violence and the injuries sustained, as confirmed by all of the medical expert reports. The court went on to state that it did not agree with the lower court's conclusion as regards the extent of the applicant's injury. To exclude the causal link between the surgical removal of the applicant's right kidney and the incident of 14 May 1994, the Pleven Military Court had relied on the conclusion of four medical experts and had rejected as illogical the conclusion of Dr A.I. However, that court had disregarded that conclusion on purely formal grounds, without discussing its main points. It was unclear whether the opinion of the four experts was in fact based on the raw medical data, which in turn cast doubt on its correctness. The court concluded that if the lower court had taken into account these considerations, it could have made a different finding as to the reason for the surgical removal of the applicant's right kidney. However, since no appeal had been lodged by the prosecution, the court only noted this factual mistake and did not correct it in its judgment by holding that the applicant had suffered intermediate bodily harm, as that would worsen the accused's position. 40. Mr G.G. and Mr V.E. appealed on points of law to the Supreme Court of Cassation. The applicant also appealed, requesting an increase in the amount of damages awarded. 41. The Supreme Court of Cassation held a hearing on 17 September 1998. It heard the applicant's and the officers' oral argument and accepted their written pleadings for consideration. The prosecutor present at the hearing submitted that both appeals were groundless and should be dismissed. 42. In a final judgment of 11 November 1998 the Supreme Court of Cassation reversed Mr G.G.'s and Mr V.E.'s convictions and acquitted them. It also dismissed the applicant's civil claim. Its opinion read as follows: “...The courts below arrived at the erroneous conclusion that the two [officers]' act had been wrongful and contrary to Article 131 [§ 1] (2) of the CC... This is so for the following reasons: The [officers'] act does not amount to an offence, as they acted under the prerequisites of section 40(1), points 1 and 2 of the National Police Act [of 1993] and within the bounds set by this Act on the use of physical force, namely information about the perpetration of a publicly prosecutable offence in the centre of Vidin, which was broadcast over the [police] radio station and was received by [Mr G.G.] and [Mr V.E.]. Moreover, the description of the perpetrator who had fled from the crime scene coincided with the appearance of the [applicant], and for this reason the ... officers mistook him for the wanted offender. What is more, the [applicant] did not obey and through his actions refused to comply with the lawful order of the [officers], who tried to stop him by shouting 'Stop! Police!' Instead, he tried to escape, in order to avoid arrest by the [police], who, in line with their duties, gave chase with a view to arresting the suspect. As it were, not only did the [applicant] not obey, but he also resisted the [police officers]. Finally, the injuries he sustained upon his arrest are within what is permissible under sections 40 and 41 of the [National Police Act of 1993]. The overall situation, including the [applicant]'s inadequate behaviour, led the [officers] to conclude that he was the offender who was being sought after and who had to be caught, overawed and apprehended. This conclusion and the lawful actions of the officers, including the use of force with its consequences for the [applicant], rule out the criminality of their act. [To hold o]therwise [would mean to render] the abovementioned provisions of the [National Police Act of 1993] nugatory.” 43. Section 40(1) of the now repealed National Police Act of 1993 („Закон за националната полиция“) read, as relevant: “... police [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 the police [officers]; ...” 44. By section 41(2) of the Act, the use of force had to be commensurate to, inter alia, the specific circumstances and the personality of the offender. Section 41(3) of the Act directed police officers to “protect, if possible, the health ... of the persons against whom [force was being used].” Section 41(4) of the Act provided that the use of force had to be discontinued immediately after its aim had been attained. 45. Article 12a § 1 of the CC, adopted in 1997, provides that the injuring of alleged offenders during their arrest is not a criminal act, provided that there exists no other way for their apprehension and the measures used during the arrest do not exceed what is necessary and lawful. By paragraph 2 of this Article, there is such an excess where there exists an obvious disproportion between the character and the gravity of the offence allegedly perpetrated by the arrestee and the circumstances of the arrest, and also where the arrestee is unnecessarily and excessively harmed. The persons effecting the arrest are criminally liable only if they cause the harm wilfully. 46. Articles 128, 129 and 130 of the CC make it an offence to inflict grievous, intermediate or minor bodily harm on another person. The CC defines intermediate bodily harm as, inter alia, one which involves a temporary lifethreatening health disorder or a permanent nonlifethreatening health disorder (Article 129 § 2 of the CC). Minor bodily harm is one which does involve a health disorder, but is not specifically referred to in Articles 128 § 2 and 129 § 2 of the CC (Article 130 § 1 of the CC). 47. If the bodily harm is inflicted by a police officer in the course of or in connection with the performance of his duties, the offence is an aggravated one (Article 131 § 1 (2) of the CC). It is publicly prosecutable (Article 161 of the CC). 48. Criminal proceedings for publicly prosecutable offences could be instituted only by the decision of a prosecutor or an investigator (Article 192 of the CCP, as in force at the relevant time). The prosecutor or the investigator had to open an investigation whenever they received information, supported by sufficient evidence, that an offence had been committed (Articles 187 and 190 of the CCP, as in force at the relevant time). 49. Before 1993 the offences allegedly committed by police officers were tried by military courts (Article 388 § 1 (2) of the CCP, as in force at the relevant time). In December 1993 this text was amended to provide that the military courts no longer had jurisdiction in respect of such offences (Article 388 § 1 (2) of the CCP, as amended in December 1993). A new amendment in June 1995 reverted to the old regime (Article 388 § 1 (2) of the CCP, as amended in June 1995 and in force until 1 January 2000). If a case falls within the jurisdiction of the military courts, the preliminary investigation is handled by military investigators and prosecutors. 50. Section 45(1) of the Contracts and Obligations Act of 1951 („Закон за задълженията и договорите“) provides that everyone is obliged to make good the damage which they have, through their fault, caused to another person. Section 49 of the Act provides that a person who has entrusted another with performing a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job. | 1 |
dev | 001-105047 | ENG | ROU | CHAMBER | 2,011 | CASE OF SBÂRNEA v. ROMANIA | 3 | No violation of Art. 8;Remainder inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria | 5. The applicant was born in 1953 and lives in Bucharest. 6. The applicant married M.S. on 19 August 1993. On 9 March 1994 their daughter E. was born. 7. At the petition of the applicant the marriage was dissolved by a final decision of 27 January 1998 and M.S. was awarded resident parent status. The said judgment did not include contact arrangements for the applicant, as no such request was made. 8. According to the applicant and to the information available in the case file, in the period following the divorce and until the end of 2002 or the beginning of 2003, he was able to see E. without any restrictions. Their relationship was close and affectionate. 9. During the Christmas holiday of 2002 the applicant announced to E. that he was remarrying and that he and his new wife were expecting a new baby girl. 10. From that point onward, E. started refusing to meet him on her own, expressing the wish that her mother also be present during these meetings. The applicant’s explanation was that M.S. was trying to punish him by preventing him from having contact with his daughter, after she realised that he was starting a new life and that the separation from her was therefore final. 11. On 4 February 2003, the applicant brought an action for the establishment of his rights of contact with the child. He stated that M.S. was not respecting his right to spend time alone with their daughter. 12. During the proceedings, M.S. indicated that, although the divorce decision did not set out any contact schedule, she had always encouraged E. to spend time with her father. Nevertheless, lately she had noticed that the child had a reserved attitude towards meeting her father alone, and the girl had asked her also to be present during those meetings. 13. A report on the social investigation conducted by social services after carrying out on 10 April 2003 a home visit to M.S. and discussions with both the child and the mother indicated that the mother had not prevented the applicant from visiting the child, but on the contrary she tried to encourage their relationship, given the fact that the girl suffered considerably after her parents’ divorce. The report also indicated that the applicant continued to see E. 14. In a judgment of 25 April 2003, the Bucharest District Court (“the district court”) concluded that the applicant had the right to maintain personal relations with the child in the absence of M.S., as, on the basis of the evidence adduced, it could not be concluded that such a visiting schedule would be contrary to E.’s interests. The court noted further that with wisdom, tact and affection the new reality could be explained to the child and she had to be helped to accept the existing situation. The court established that the applicant could spend time with E. at his home every second Saturday between 10 a.m. and 6 p.m., and every other alternating Sunday between the same hours, as well as for one month during the summer holiday, half of the winter and spring holidays and on alternate Christmas, New Year’s Eve and Easter celebrations. The judgment became final, as no appeal was lodged. 15. On 10 July 2003, the applicant lodged a criminal complaint against M.S., alleging that she had not complied with the final judgment of 25 April 2003, which defined his contact rights with E. 16. During August 2003, the investigating authorities took statements from the proposed witnesses and the mother. The child also gave a statement on 24 November 2003, stating that she did not want to see her father and that her mother allowed her to meet him but she did not want to. 17. On 2 December 2003, the prosecutor decided not to pursue M.S. criminally, considering that the non-compliance with the said judgment could not be imputed to her, but to the child’s refusal. 18. The applicant lodged a judicial complaint against the prosecutor’s decision. By a first-instance judgment of 4 March 2004 the Bucharest District Court referred the case back to the prosecutor for the investigation to be continued. The court considered that, given her age, the girl did not have a full understanding of her refusal to meet her father and under these circumstances, it was expected that it was M.S.’s duty to inculcate in her a positive attitude towards the father and that the prosecutor had ignored statements by M.S. in which she admitted that she had agreed to allow the father to visit the girl only in her presence. The court also considered that it was necessary to prepare a psychological expert report (“expertiză psihologică”) in order to identify the real cause of the girl’s refusal to meet her father. 19. The file was sent back to the prosecutor. M.S. and one witness indicated by the applicant were heard again. The mother declared again that she was not preventing the child from having contact with the father, but the child was afraid of him and did not want to meet him. The witness said that on one occasion she had met the three of them and E. had refused to join her father, pleading with M.S. not to go away. 20. E. gave further statements, on 23 November 2004 and 19 January 2005, stating that she refused to have contact with the applicant because he had threatened on several occasions that he would hurt her mother if she refused to do so. 21. The investigating authorities asked for a psychological assessment (“evaluare psihologică”) to be prepared. The assessment, carried out by social services on 12 May 2005, indicated that the child was suffering from anxiety and sleep problems and that she needed to be in a harmonious environment, avoiding situations that could stress her. No psychological expert report could be prepared, as several institutions summoned to carry out such a report declared that it was not within their responsibilities. 22. In a decision of 13 July 2005, the prosecutor decided not to pursue criminal proceedings against M.S. because she did not intend to prevent the applicant from having a personal relationship with the child. It further held that it was not necessary to conduct a psychological expert report, taking into account that such a report could not establish with certainty whether M.S. was in bad faith on this matter. 23. The applicant was notified of the decision only at a later date during 2006, and he lodged a judicial complaint against it. 24. In a first-instance judgment of 20 June 2006 the Bucharest District Court dismissed the complaint. The court noted that the prosecutor heard the witnesses indicated by the parties again and that a psychological expert report would not have been conclusive for the outcome of the case. The child had many times expressly stated in front of the investigating authorities and social workers that she did not want to see her father. The same state of affairs had been confirmed by her teacher and by the neighbour taking care of her. None of the evidence indicated that the child wanted to see her father and M.S. was preventing her. The court further held that the father’s expectation that the child should understand that state authority prevails over parental authority was exaggerated; the child only understood his intention to harm her mother, hence her reaction; M.S.’s failure to attend some of the meetings with the social workers needed to be assessed in a general context, and taking into account that this attitude had been shown only after a number of meetings with social workers, conducted at their home. The court concluded that the decision not to pursue M.S. criminally did not amount to an incentive not to comply with the final judgment defining the applicant’s contact rights with the child; this decision was the result of the conclusion that the conditions required to attract criminal liability had not been met. The applicant could pursue the forced enforcement of the said judgment, according to the procedure regulated by the Code of Civil Procedure; but regard must be had to the fact that only a responsible attitude on the part of the parents and of the experts to whom the parents have turned could lead to a normalisation of the father-child relations. 25. The Bucharest County Court, in a final decision of 4 August 2006, allowed an appeal by the applicant against this judgment, holding that the prosecutors should have listened to other witnesses and should have conducted a psychological expert report. 26. The case was again referred back to the investigating authorities. 27. The child was assessed psychologically by the psychologists of the Directorate for Social Assistance and Child Protection during March 2008. The conclusions of the report are presented in paragraph 63 below. 28. The applicant, M.S. and E. made statements before the prosecutor on different dates in August 2008. 29. The main elements of the girl’s statement were the following: a) for a while, until 2003, she had a good relationship with her father. Then he started visiting her at school and sending letters asking her not to tell M.S. about it; she felt uncomfortable as she did not have any secrets from her mother; b) because of the letters she started fearing that he had something to hide, and this was why she wanted her mother to be present too; she spoke daily with him on the phone, she did not understand why he had to send her letters; c) her father used to call her on the phone to tell her that he would hurt M.S. badly; he kept her for hours on the phone to tell her this; she started having nightmares and dreaming about her mother’s grave; d) at the beginning of August 2008, he took her by force and pushed her into his car. She was very upset. He did not even call to announce that he was coming. Her opinion did not matter to him; e) maybe in his own way he loved her; but she did not like it that he had something against M.S.; he acted as if he intentionally wanted to harm her. If he loved her, he would not do so. This was her reproach to him. She told him this several times and he told her that he could not do anything about it, but he had to lodge judicial actions. She did not understand it; f) since the previous winter she had not wanted to see him at all. He did not call her for several weeks, after which he appeared at their door with the bailiff and several policemen. She started shaking when she saw so many policemen; g) she would like her father to stop all his complaints against her mother; h) she still cared for her father, but only a little now. There were things that disturbed her about him. She did not have the feeling that he tried to make any effort to make things better; i) she went several times to the child protection authorities. The people there were nice, but she did not like going there. Her classmates who had divorced parents did not have to go there; it was difficult for her to tell them why she was upset, because they were like foreigners to her. 30. By a decision of 25 August 2008, the prosecutor terminated the criminal proceedings against M.S., concluding that she was not obstructing the enforcement of the judgment defining the applicant’s visiting rights. 31. In respect of the indications given by the Bucharest County Court in its decision of 4 August 2006, the prosecutor noted that the applicant had been asked to suggest other witnesses who would support his allegations. However, he did not produce such witnesses, stating that “[he] had lost [his] trust in this prosecution unit and therefore, [he] refused to produce these witnesses. [He] reserved the right to indicate their name when [he] considered the moment to be opportune.” 32. As regards the indication to conduct a psychological expert report, the prosecutor noted that the National Forensic Institute had responsibility to conduct only psychiatric expert reports, which was not the type of report needed in the instant case. The prosecutor nevertheless relied on the conclusions of the psychological assessment carried out by social services. 33. The prosecutor further took note of the applicant’s statements according to which “it was the mother’s duty to comply with the visiting programme. If she had not been able to influence the child in the direction set by the court (...), she had to pay for it”. The prosecutor indicated that the crime punished by Article 307 of the Criminal Code implied an action from the side of the accused; or the factors for which the applicant held M.S. responsible were actually a lack of action, namely that she failed to inspire in the girl positive feelings towards him. 34. In other statements taken into account by the prosecutor in his decision, the applicant declared that he did not see any harm in the fact that a child needed to be aware that state authority was above parents’ authority and that even if a harsh law might frighten a child, that law should be obeyed. The applicant considered that it was not in the best interest of the child to take her moods into account. A child needed to learn that he or she had responsibilities too. The fact of taking a child away with him, even by force, did not mean that he was torturing the child. 35. As regards M.S.’s refusal to attend some of the psychological counselling sessions, the prosecutor underlined that this obligation had not been set by the final judgment defining the applicant’s contact rights. The prosecutor then analysed whether this absence showed M.S. to be in bad faith. The prosecutor relied on the child’s statements according to which she did not like to go to the social assistance office. He considered that one could not expect a parent to remain indifferent to a child’s attitude towards these meetings, and that this was the reason why M.S. had refused to attend some of the meetings with social workers. 36. The applicant’s complaint against the prosecutor’s decision was dismissed by a first-instance judgment of 17 June 2009. This judgment was upheld by the Bucharest County Court, in a final decision of 1 October 2009. The county court explained that the crime under Article 307 § 2 of the Criminal Code implied acts by a person who had resident status with a child aimed at preventing the other parent from maintaining a personal relationship with the child. But in the instant case M.S. had not taken such actions; she had only expressed her disagreement with forcing the child to do something she did not want to do. No elements indicated that M.S. was the one who had induced the negative feelings in the child. It was also concluded that no other psychological report was needed, in the light of the reports already conducted and relied upon by the prosecutor and the first-instance court. 37. During 2004 the applicant lodged several requests for assistance from social services, indicating that he still had problems in communicating with his daughter, who was refusing to meet him. He held that this was due to the pressure exerted on the child by M.S. 38. A social worker visited the mother and the child at their home on 19 May and 17 June 2004. On both occasions, they noted that the two had a strong and affectionate relationship. The child declared she did not love her father and she was afraid of him; the mother undertook to enrol E. on a counselling programme. Further interviews were conducted by social services with the neighbour who sometimes took care of E. after school hours until M.S. returned from work, and with her school teacher. Both indicated that E. had previously had a good relationship with her father, but that recently she had refused to see him any more. According to these statements, E. refused to meet or talk to her father even when she was alone, without her mother around. The school teacher indicated that the father had visited E. several times at the school. 39. On 14 July 2004, a written notification was sent to M.S. recommending her to enrol E. on a counselling programme. 40. From the information available in the case file, it appears that the girl was enrolled on a counselling programme with a psychologist from an unspecified date during the summer of 2004. 41. Following a new request from the applicant, by a letter of 27 October 2004 social services informed him of the steps taken and confirming that they would continue to monitor the situation of the child in the following months. 42. The applicant made renewed requests for assistance, indicating that he was willing to do anything possible to help restore the psychological balance of the child. 43. M.S and E. were invited for a meeting with social services on 14 March 2005. The report drawn up on that occasion indicated again that E. did not want to meet her father, that she did not trust him any more and that she feared that he had tried to hurt her mother. The social worker proposed a trilateral meeting, but M.S. refused this proposal, after seeing that E. did not agree with it. M.S. informed the social worker that E. visited a psychologist weekly. 44. On 17 March 2005, M.S. gave a new statement to social services, reiterating the same elements. She also mentioned that she had insisted that E. go to the birthday party of her paternal grandfather, who was ill. Since then, the girl had seen her father once, when he came to bring her a birthday gift, but she had refused to leave with him. The mother indicated that all these events in the life of her daughter had created in her a feeling of fear, and that she had therefore enrolled the girl in a counselling programme, which she attended weekly. 45. A new social investigation report was prepared on 31 March 2005, following a home visit and discussions between the social worker and E. and the mother. The report concluded that E. was still refusing to meet her father and she was not prepared to meet him. The child believed that her relationship with the applicant would have been better if he had not tried to hurt her mother by making all “his complaints to the courts, the police and threats”; the mother reiterated that she was not preventing her daughter from having a personal relationship with her father, but that she did not want to force her to meet him against her will. 46. During a visit to the child’s home on 31 March 2005, the social worker obtained the mother’s approval for more frequent meetings at their home. The mother refused to have meetings at their headquarters. 47. The social worker made a new home visit on 11 April 2005. She talked with the child about the relation between the child and the father, E. repeating that she did not wish to see him and that she would like to be left alone. 48. On 20 April 2005, M.S. and E. went to social services and they discussed the counselling programme in which E. was enrolled within the Institute for the Protection of Mother and Child; the girl refused the proposal to meet the applicant at their offices. 49. On 12 May 2005, the psychologist in charge of E’s case prepared a psychological assessment (“evaluare psihologică”). The test concluded that the girl presented certain disorders of a neurotic character (reactive to stress). It recommended psychotherapy and a harmonious emotional climate, by avoiding stress and situations that may cause psychological trauma. 50. By a letter of 8 June 2005 the applicant was informed that the social worker had come to the conclusion that it was the child’s own decision not to meet him and that their attempts to set up a meeting at their office between him and the child had failed because of a very vehement refusal from E.’s side. 51. The applicant lodged several complaints with the social services office and with the superiors of the social worker in charge of the case, expressing the concern that the case had not been handled properly. 52. Following the applicant’s renewed complaints, social services proceeded to request M.S. to present herself at their office for further discussions. M.S. did not attend the proposed meetings. 53. During 2006, M.S. was invited several times to attend meetings with the social worker in charge of the case. She did not attend these meetings. 54. On 23 June 2006, the Bucharest District Court invited the General Directorate of Social Services and Child Protection (formerly the Public Service for the Protection of Children in Difficulty or Handicapped, hereinafter “GDSACP”), to submit a copy of their file on the case, as well as to state whether they had experts who could conduct psychological expert reports (“expertiză psihologică”) on minors. 55. By a letter of 25 May 2006, GDSACP informed the district court of their activities in respect of E. and that they had employees who were psychologists whose responsibilities included the psychological assessment and counselling of children. 56. The county court then asked GDSAPC to specify whether their experts could determine with certainty whether the rejection of one parent by a child is due to influence exerted by the parent who is resident with the child. GDSAPC informed the county court that their experts were of the opinion that it was not possible to determine with certainty the influence exerted by the parent with residence in respect of a child’s attitude towards the other parent. 57. On 25 September 2006, the social worker in charge of the case file closed it, noting that the mother held that she did not oppose the child having a relationship with her father, but that the child was continuing to refuse to meet him and that after several complaints addressed to different public authorities the father had stopped contacting social services. 58. On 12 October 2006 the applicant again contacted social services, complaining that the situation had worsened. He asked them to reopen the case. Letters were sent to M.S. on several occasions inviting her to meetings to discuss the situation of the child. M.S. did not reply to the invitations, although a few times she telephoned them to notify them that she would not be able to attend the meetings, either due to her work schedule or to illness. 59. On 24 May 2007 the social worker talked to the maternal grandfather, who declared that the applicant saw E. often and they went out together for walks. On 21 August 2007 the social worker had a telephone conversation with M.S., who informed her that E. had spent the first part of her summer holidays with her father. 60. On 19 December 2007 M.S. and E. visited the office of GDSACP. On that occasion, E. gave another written statement in front of two social assistants, declaring that she did not want to meet her father, that she did not like the way he had behaved towards her during the summer holidays, when she had had to spend two weeks with him and he had threatened to harm her mother if she did not agree to go with him. 61. On 19 February 2008, at the request of the prosecutor investigating the case against M.S., GDSACP issued a report on the case. The report showed that the applicant had lodged a criminal complaint against M.S., which strengthened the feelings of rejection shown by his daughter. In respect of M.S. the report concluded that at the beginning she had cooperated well with them, but that lately her attitude had changed and she was not responding to their requests for meetings. 62. From the information submitted by the applicant it appears that during 2008 E. was subjected again to a psychological evaluation by experts from social services. The assessment report was prepared on 20 March 2008, after three meetings with the child. 63. The report noted that the child was tense during these meetings. In respect of her relationship with her parents, the report concluded that her relationship with her mother had an emotional basis, E. perceiving her mother as a supporting element, while she was ambivalent in her relationship with the applicant. The girl showed a strongly negative attitude towards paternity, the report concluding that the basis of the child-father relationship was insufficiently structured and consolidated. The current situation had triggered the development of a latent aggressiveness, the child being “overloaded” with problems specific to her parents. The conclusions of the report were as follows: there was a need to ensure an emotional basis which would support the development of the child’s personality. It was necessary for the parents (especially the father) to respect the child’s rhythm and adapt to its specific characteristics so that the child could internalise according to her own feelings both her relationship with her parents and the situation she was facing. This could allow an adequate and balanced integration of the maternal and paternal sides of the girl’s life. The report further recommended psychological counselling for the child, as well as for the parents, in order for the latter to understand and assume their roles as parents. It was recommended that a stable environment be ensured for her, in order to avoid exposing the girl to situations that could generate inner conflicts and have a negative impact on her psychological state. 64. The mother, informed of the conclusions of the report, indicated that she would enrol E. again in a counselling programme, with a psychologist the girl knew from before and was comfortable with. 65. A note prepared by social services on 21 October 2008 showed that the relations between E. and the father remained tense, the father having lodged a new judicial action to obtain residence rights in respect of the child, despite the fact that she wanted to stay with her mother. 66. During November 2008, M.S. and the child were again invited to social services to discuss their case further. E. declared that she was aware that her father had the right to see her, but she did not want to see him, because she did not feel good in his presence. She said that when they met he brought along various people to act as witnesses. One day, in front of her mother and a friend of his father, the applicant took her by force and put her in his car. Her father called her almost daily and they could not have a normal conversation because he did not listen to her and told her she was not right. 67. On 7 December 2007 the applicant made a request to the bailiff for the enforcement of the judgment setting out his contact rights. He asked for the necessary actions to be taken so that he could spend the first two weeks of the winter holidays with E., starting from on 21 December. 68. On 12 December 2007 the Bucharest District Court authorised the request to proceed with the enforcement on a non-working day, a Saturday, with a view to taking the child away for the first two weeks of the winter holidays. 69. On 22 December 2007 the bailiff, in the presence of M.S., the applicant and the child, drew up a report noting that she could not proceed with the enforcement, as E. refused to join her father. 70. On 14 January 2008 the applicant made a new request for the bailiff to continue with the enforcement. The bailiff refused to take further action, noting that the first request concerned the winter holidays, which were already over. The bailiff also considered that the applicant had actually disputed the note prepared on 22 December 2007 because he judged that E.’s refusal to join him did not constitute an obstacle to the enforcement and that if she tried to resist “she could be forced, obviously not by slapping or ill-treatment, but by being firmly taken by the hand by the bailiff or by the policemen and then passed over to the father”; “[the father] in principle could be waiting at home and the child be brought to [him]”. 71. The applicant lodged a judicial complaint against the bailiff, asking that the note of 14 January 2008 be declared void. The complaint was dismissed by a final decision of the Bucharest District Court on 7 January 2009, with the reasoning that in his initial request of 7 December 2007 the applicant had limited his enforcement request to the winter holidays and that that request had been dealt with by the document of 22 December 2007. 72. The applicant lodged a new request for enforcement with the bailiff in respect of the summer holidays of 2009. The bailiff lodged a request with the court for the enforcement to be authorised. A summons was sent to M.S. on 1 September 2009. The latter replied on 11 September 2009, indicating that E. would be starting school on 14 September 2009 and the holidays were already over. Moreover, she indicated that E., 15 years old at the time and with the ability to make her own decisions, was still refusing to meet him. 73. On 16 September 2009, M.S. and E. visited the bailiff’s office. E. declared that she wanted her father to stop spoiling her peace of mind with his complaints and legal actions. She wanted to clarify all misunderstandings, as well as to define their future relations. In this respect she wanted to have these discussions with him at the bailiff’s office, in the presence of the bailiff, a lawyer and her mother. It was agreed that E. would propose a date for this discussion, to be communicated well in advance to the applicant too. 74. By a letter of 18 September 2009 the bailiff informed the applicant that E. was proposing a meeting on 2 October 2009. 75. On 29 September 2009, the applicant emailed the bailiff, indicating that he could not accept the proposed meeting, because accepting E.’s invitation would mean teaching her that her moods were superior to her legal obligations, especially in a vital issue such as relations with a parent. 76. According to the report drawn up by the bailiff on 2 October 2009, E. declared that she was disappointed that her father had not come and that he considered her request to meet him a sign of disrespect. She further stated that she did not understand why her father had lodged numerous complaints with the police, the bailiff, the prosecutor and social services, when no one had ever been opposed to her having a personal relationship with him, especially given the fact that they communicated very often by telephone. She declared that she was aware that her father had the legal right to visit her, but at the same time she also had the same right to visit him when she wanted to, without being forced against her will to exert this right. She further stated that the applicant had said to her that she did not have the right to choose whether she wanted to be with him or not, because he was the one who had to decide and she had to listen to him. 77. On 28 December 2007, M.S. lodged a civil action on behalf of E. to have the applicant’s contact rights redefined in the sense that E. would have the freedom to choose the dates and means of maintaining the personal links with her father. M.S. indicated that the girl started to fear that she would be taken by force against her will and had asked her to do everything possible to avoid such disturbing events and make sure that her right to meet her father when she wanted and when she needed it was officially recognised. Hence the civil action lodged by M.S. 78. A report on the psychological assessment of the child indicated that E. was suffering from slight emotional immaturity, shyness and social introversion, and was afraid of being separated from her mother. She presented feelings of fear in respect of the father, hostility and aggressiveness. The cause of these feelings proved to be her emotional identification with the mother but also the methods chosen by her father to enforce his contact rights with her. 79. In a decision of 10 March 2010, the county court considered that it was its duty to establish a balance between the necessity to pursue the best interest of the child against the right of the divorced parent who did not have residence rights to maintain personal relations with the child. It then considered that the girl’s wishes could not represent the only criteria to be taken into account when deciding on the specific way of maintaining personal links between the parent and the child. Therefore it concluded that there was no need to modify the contact schedule. 80. No information is available in the case file as to whether this decision was appealed against. 81. The initial quantum of the child support to be paid by the applicant to the child was set out in the divorce decision of 1998. Since then M.S. asked twice for an increase in the amount, in proportion to the increase in the applicant’s income. Her first request was allowed by a final decision of the Bucharest County Court of 28 February 2008. 82. The second action was allowed in a first-instance judgment of 25 November 2008. The Bucharest District Court increased child support from 1,073 Romanian lei (RON), approximately 284 euro (EUR), to RON 1,136 (approximately EUR 300). 83. The applicant lodged an appeal on points of law, arguing that a child could not have higher needs than the equivalent of the minimum salary per economy (RON 350, approximately EUR 90) and it had not been proven what needs were meant to be covered by this increase. He held that the fact that the mother had interfered with the child’s compliance with his right of contact meant that he had no guarantees that the child support would be spent in the best interest of the child. There were no guarantees that the mother, in order to satisfy the momentary wishes of the child and to keep the child on her side, would not use the money to buy heroin to the girl. 84. By a final decision of 19 March 2009, the Bucharest County Court dismissed the appeal, by showing that the Family Code provided that the level of child support was determined according to the financial means of the debtor and that the obligation to pay child support and the obligation of the mother to comply with his contact rights were independent of each other. 85. From the information submitted by the applicant, it appears that he lodged a separate civil action in order to obtain residence rights in respect of E. No information is available as to the final outcome of these proceedings. 86. The applicant also lodged various civil and criminal complaints against the prosecutors investigating his complaint against M.S. and against the lawyer representing her in the different proceedings, accusing counsel of inciting M.S. to show disrespect to the final judgment of 25 April 2003. 87. The relevant provisions of the Code of Family and of the Code of Civil Proceedings are stated in the Court’s judgment in the case of Lafargue v. Romania, (no. 37284/02, §§ 65 and 68-70, 13 July 2006). The role and responsibilities of the local public authorities for social assistance and child protection as well as the relevant provisions of Law no 272/2004 on child protection are described in the judgment Amanalachioai v. Romania, (no. 4023/04, § 56 and 59, 26 May 2009). 88. Article 307 of the Criminal Code provides: “It shall be an offence punishable by one to three months’ imprisonment or a fine for one of the parents of an under-age child to detain it without the permission of the other parent ... who lawfully has responsibility for the child. The same penalty shall be incurred by a person to whom parental responsibility has been given by a judicial decision who repeatedly prevents one of the parents from having personal relations with an under-age child on the terms agreed by the parties or laid down by the appropriate body. Criminal proceedings may only be instituted if a criminal complaint has first been lodged by the victim. No criminal liability shall be incurred where there has been reconciliation between the parties.” 89. Article 24 § 1 of the Law no. 272/2004 provides that a child who has attained a degree of maturity has the right to express his/her opinion freely on any matter concerning him/her. Paragraph 2 of the same article provides that a child who has attained the age of ten must be listened to in any judicial or administrative procedure concerning him or her. Paragraph 4 provides that the child’s opinions shall be taken into account and relied upon to the necessary extent, depending also on the age and maturity of the child. | 0 |
dev | 001-21943 | ENG | CHE | ADMISSIBILITY | 2,001 | BALMER-SCHAFROTH AND OTHERS v. SWITZERLAND | 4 | Inadmissible | Christos Rozakis | The applicants are Ursula Balmer-Schafroth, Ueli Balmer-Schafroth, Ursula Wanner and Rainer Zur Linde, all Swiss citizens who live in Wileroltigen and Detligen in Switzerland. They are represented before the Court by Mr Rainer Weibel, a lawyer practising in Bern. The applicants were among the ten applicants in the previous Balmer-Schafroth and Others v. Switzerland case (see judgment of 26 August 1997, Reports of Judgments and Decisions 1997-IV, pp. 1346 et seq.). The applicants live in the alarm zone 1 within a radius of between four and five kilometres from the nuclear power station at Mühleberg in Switzerland. On 14 December 1992, the Federal Council (Bundesrat) granted to the Mühleberg nuclear power station the operating licence for a limited period, i.e. until 31 December 2002. This decision of the Federal Council was contested before the Court and led to the judgment in the Balmer-Schafroth and Others case (cited above). In 1996 the company which operated the nuclear power station, the Bernische Kraftwerke AG, maintaining economic reasons, filed a request to cancel the limitation of the period of operation, and to obtain a licence for an unlimited period. The application was published in the Federal Gazette (Bundesblatt), whereupon 1,170 persons and four organisations filed objections thereto. The Federal Department of Transport and Energy (Eidgenössisches Verkehrs- und Energiewirtschaftsdepartement) then requested the Technical Examination Board TÜV, a German association, to examine in particular the relevance of certain cracks in the inner nuclear casing (Kernmantel) of the nuclear power station. In its expert opinion of 29 January 1998, numbering 178 pages, the TÜV concluded that the cracks endangered neither the possibility to turn off, or to cool, the reactor. The calculations of the growth in the cracks disclosed that in the coming years the security would only insignificantly be reduced. Moreover, the producer had considered all possible accident combinations. The report also noted that the control programs and methods were such that they could detect such cracks and determine their size, and to do so within a time-limit before the cracks became dangerous. Following this expert opinion, various persons applied to the Federal Council for a complete examination of all welded joints of the nuclear casing. The “Mühleberg association”, an association aiming at the closure of the Mühleberg nuclear power station, requested Mr C.K., a physicist, to comment on the TÜV expert opinion. In his reply, dated 30 April 1998, the expert C.K. concluded that the “size of the cracks may [have been] substantially underestimated”, and that so far the effects of the cracks in the nuclear casing upon the security of the nuclear power station had only insufficiently been examined. By decision of 28 October 1998 the Federal Council dismissed the various objections and prolonged the operating licence for a period of ten years, i.e. until 31 December 2012. The decision considered that due to various modernisations the Mühleberg nuclear power station had meanwhile become more secure than when it had been constructed. There were no defaults of a technical nature which would exclude a secure operation of the station. The Federal Nuclear Safety Inspectorate (Hauptabteilung für die Sicherheit der Kernanlagen) had given the go-ahead, and the TÜV expert opinion concluded that the cracks found did not impair the security. The decision also noted that the Federal Nuclear Energy Act (Atomgesetz) did not grant a right to an unlimited period of operation. In view of a popular consultative referendum in the Canton of Bern in 1992, in which the populace had in fact expressed itself against the Mühleberg nuclear power station, the Federal Council decided to grant a license for only a limited period of ten years. On 24 April 2000, the “Mühleberg association” wrote to the Federal Council, requesting a public hearing of the Federal Nuclear Safety Inspectorate as to the conditions for a possible closure of the Mühleberg power station. By letter dated 19 May 2000, Mr M. Leuenberger, a Federal Councillor (Bundesrat), refused the request. Annexed to the letter was a statement of the Federal Nuclear Safety Inspectorate dealing, inter alia, with the issue of an earthquake in the Mühleberg area. It was considered that the probability of damage to the nuclear reactor lay between (5-10)x10-6 per year, a figure based on all accidents of nuclear power stations of the world resulting from earthquakes, and that indeed, the Mühleberg nuclear power station had been constructed to withstand earthquakes. The probability of a plane crash on the nuclear power station was negligibly small. On 8 September 2000 the applicants filed with the Federal Council a request for reconsideration of its decisions of 14 December 1992 and 28 October 1998. Under Section 4 § 1 (a) of the 1959 Federal Nuclear Energy Act, a licence from the Confederation is required for the construction and operation of nuclear installations and for any changes in the purpose, nature or scale of such installations. Section 5 § 1 provides that a license must be refused or granted subject to appropriate conditions or obligations if that is necessary in order, in particular, to protect people, the property of others or important rights. Section 6 provides that the Federal Council or a body designated by it decides license applications. No appeal lies against its decisions. Section 8 stipulates that nuclear installations and every form of ownership of radioactive nuclear fuels and residues shall be placed under federal supervision; the Federal Council and the body designated by it shall have the right in executing their supervisory function to issue instructions at any time if that becomes necessary in order, in particular, to protect people, the property of others and important rights; they are also entitled to supervise compliance with these instructions. Under the Federal Court’s case-law, the safety of nuclear power plants can be considered by the Confederation only in the context of its licensing procedures (see judgments of the Federal Court (BGE [Bundesgerichtsentscheide] 119 Ia, p. 402). | 0 |
dev | 001-77961 | ENG | AUT | ADMISSIBILITY | 2,006 | ASCI v. AUSTRIA | 1 | Inadmissible | null | The applicant, Mr Emin Aşcı, is a Turkish national who was born in 1963 and lives in Vienna. He was represented before the Court by Mr R. Soyer, a lawyer practising in Vienna. The respondent Government were represented by their Agent, Ambassador F. Trauttmansdorff, Head of the International Law Department at the Federal Ministry for Foreign Affairs. The facts of the case may be summarised as follows. On 26 August 2000 the police stopped the applicant, who was driving his car, on account of a minor traffic offence. There followed a violent dispute between the applicant and the police officers, Mr P. and Mrs M. The applicant snatched his car documents from the former and bruised the latter with his car keys. On 31 August 2000 the Vienna Federal Police Directorate (Bundespolizeidirektion) issued a penal order (Straferkenntnis) in which it sentenced the applicant to a fine of 1,000 Austrian schillings ((ATS) – approximately 73 euros (EUR)) under section 82 of the Police Security Act (Sicherheitspolizeigesetz) for aggressive behaviour towards a public officer (Organ öffentlicher Aufsicht). It noted that the applicant had shouted and tried to snatch his driving licence from a police officer. It ordered the applicant to pay two further fines of ATS 500 (approximately EUR 36) for an offence under the Road Traffic Act (Straßenverkehrsordnung) and for having caused undue noise disturbance. The applicant did not appeal against that decision. On 2 October 2000 the Vienna Regional Court (Landesgericht), sitting with a single judge, convicted the applicant of having attempted to resist the exercise of official authority (Widerstand gegen die Staatsgewalt), under Article 269 of the Criminal Code (Strafgesetzbuch), and of having caused bodily harm to police officer M. while she was on duty, which was to be qualified as grievous bodily harm (schwere Körperverletzung) in accordance with Article 84 § 2 of the Criminal Code. Pursuant to Article 28 § 1 of the Criminal Code, which provides that a person who has committed more than one offence should receive only a single penalty, it sentenced him to four months’ imprisonment, suspended on probation, under Article 269 of the Criminal Code. In the operative part (Spruch) of its judgment, the court referred to the fact that on 26 August 2000 the applicant had started fighting with police officer M., in the process bruising her with his car keys, causing skin abrasions on her forearm and kicking her legs. In the part of the judgment headed “Reasons for the decision” (Entscheidungsgründe), the court observed that the applicant had started to shout and, on being ordered to hand over the keys to the car, had snatched the car documents from police officer P. He had then started the fight with police officer M. The court based its findings as far as the course of the events was concerned on the statements of the police officers concerned. In respect of the injury inflicted by the applicant, it relied on the statement by the officer concerned and an official medical expert opinion. The applicant appealed against his conviction and sentence. He argued, inter alia, that the Federal Police Directorate had based its penal order against him on the same set of facts. The subsequent court proceedings and his conviction were therefore in breach of the non bis in idem principle. He also requested the preparation of a further expert opinion in order to prove that the police officer concerned had not suffered any injuries which were relevant for the purposes of the Criminal Code. On 11 May 2001 the Vienna Court of Appeal (Oberlandesgericht), having held a hearing, dismissed the applicant’s appeal. Giving extensive reasons and referring to the Court’s case-law in Gradinger v. Austria (23 October 1995, Series A no. 328C) and Oliveira v. Switzerland (30 July 1998, Reports of Judgments and Decisions 1998V), it found that there had been no breach of the applicant’s rights under Article 4 of Protocol No. 7 to the Convention. It noted in this regard that the Federal Police Directorate had sentenced the applicant for his aggressive conduct in seeking to impede the performance of an official act by snatching the driving licence from police officer P. and shouting, whereas the subject of the criminal proceedings had been the violent behaviour by which the applicant had subsequently tried to resist police officer M. and had injured her. The Court of Appeal noted that these were different acts motivated by different intentions. In any event, the applicant’s criminal conviction by the Federal Police Directorate did not do justice to all of the unlawful aspects (Unrechtsgehalt) of his conduct. The Court of Appeal lastly noted that in the light of the evidence before it, namely the official medical opinion, there was no need for a further medical opinion. There was no reason to doubt the police officers’ version of the events, and the assessment of the facts did not require special knowledge. The judgment was served on the applicant’s counsel on 11 June 2001. By section 82(1) of the Police Security Act (Sicherheitspolizeigesetz), a person who, notwithstanding a previous warning, behaves aggressively towards a public officer on duty and thereby obstructs the performance of an official act commits an administrative offence and is punishable by a fine of up to ATS 3,000 (approximately EUR 218) (aggressives Verhalten gegenüber Organen der öffentlichen Aufsicht). Section 85 of the Police Security Act provides that an administrative offence under sections 81 to 84 is not to be prosecuted when it is based on facts that constitute an offence falling within the jurisdiction of the ordinary courts. Under Article 269 of the Criminal Code (Strafgesetzbuch), it is an offence, punishable by imprisonment of up to three years, to resist forcibly or using dangerous threats a public officer in the performance of an official act (Widerstand gegen die Staatsgewalt). Article 83 of the Criminal Code applies where a person causes bodily harm and provides for up to one year’s imprisonment or up to 360 day-fines. By Article 84 § 2 of the Criminal Code, bodily harm caused to a public officer while on duty qualifies as grievous bodily harm (schwere Körperverletzung) punishable by up to three years’ imprisonment. Article 28 § 1 of the Criminal Code provides that where a person has committed more than one offence, he or she should be punished by a single penalty, on the basis of whichever offence provides for the more severe punishment. | 0 |
dev | 001-91415 | ENG | UKR | CHAMBER | 2,009 | CASE OF MARCHENKO v. UKRAINE | 2 | Remainder inadmissible;Violation of Art. 10;Non-pecuniary damage - award;Pecuniary damage - claim dismissed | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk | 5. The applicant was born in 1946 and lives in Pasiky-Zubrytski. 6. Since 1974 the applicant has worked as a teacher in the Lviv Boarding School no. 6 for Children with Language Disorders (“the School”). In 1995 he was elected head of the school branch of the “VOST” - one of the two trade unions represented in the School. 7. On 12 January 1996 the local Board of Education employed Mrs P. to serve as a director, notwithstanding opposition from some staff, in particular the VOST members. 8. In May 1996 Mrs P. dismissed an employee, who was a VOST member, without the consent of the VOST. Subsequently, in 1998, this employee was reinstated as a result of a court action brought on her behalf by the VOST. 9. On 6 June 1996 Mrs P. refused to sign a collective agreement, signed by the VOST and the head of the second trade union present at the School. 10. On an unspecified date in late 1996, a former School driver who had been dismissed by Mrs P. for incompetence submitted a written statement to the applicant, alleging that in April 1996 Mrs P. had ordered him to unload ten boxes of humanitarian aid intended for the School at her father’s estate and that on many occasions she had used the school vehicle for personal purposes. 11. In early 1997 the applicant in his capacity as a trade union leader made several applications to the Control Inspection Department (Контрольно-ревізійне управління, a public audit service, scrutinising the use of funds by State-owned entities, “the KRU”), alleging that Mrs P. had abused her office and misused School property and funds. In particular he stated that Mrs P. had appropriated ten boxes of humanitarian aid, the School’s TV set, other video equipment and bricks from the school boundary wall which had been demolished. On several occasions the applicant also complained about the situation to Mr U., the regional leader of the VOST. 12. In response to these complaints in 1997 the KRU held several inquiries into the use of the School funds. 13. In its report of 28 February 1997, the KRU stated that there were no serious instances of mismanagement of the School’s property. 14. The KRU’s report of 26 March 1997, however, revealed certain shortcomings on the part of the School administration in the handling of humanitarian aid, charity and the bricks. However, no evidence was found that any of the humanitarian aid or charity monies or any bricks had been appropriated by Mrs P. 15. In April 1997 the applicant on behalf of the School branch of the VOST, Mr U. on behalf of the Regional VOST, and Mr N. on behalf of the local branch of the Ukrainian Conservative Party made a criminal complaint against Mrs P. to the Lychakivsky District Prosecutor’s Office (“the Prosecutor’s Office”) a criminal complaint against Mrs P., referring largely to the same circumstances as in the VOST’s complaints to the KRU. On 28 April 1997 the Prosecutor’s Office dismissed this complaint for want of evidence of criminal conduct on Mrs P.’s part. On 17 June 1997 a second criminal complaint was dismissed on the same ground. However, criminal proceedings were initiated into the circumstances of the disappearance of the TV set and the video equipment. 16. On 26 May 1997 several representatives of the Regional VOST picketed the Lychakivsky District Administration protesting against the alleged abuses by Mrs P. The participants in the picket carried placards with various slogans criticising Mrs. P. and her deputy Mrs N., as well as their supporters within the local administration. The slogans concerning Mrs P. read as follows: “Mrs P. and Mrs N. - return humanitarian aid and 20,000 bricks from the school wall to the disabled children”; “Boarding school no. 6 director Mrs P. and her clique of VOST persecutors [should be submitted] to court”; and “Mrs P. and Mrs N., sticky hands off the disabled children of Boarding school no. 6”. 17. In May 1998 Mrs P. brought a private prosecution against the applicant. She complained, in particular, that in his letters to the KRU and the Prosecutor’s Office the applicant had falsely accused her of abuse of office and misappropriation of public funds and that he had organised and participated in the picket of 26 May 1997, during which the demonstrators displayed offensive placards. Mrs P. further concluded that the applicant’s actions fell within the ambit of Article 125 § 2 (defamation in print) and § 3 (false accusation of serious crimes) and Article 126 (insult) of the Criminal Code of 1960 in force at the material time. 18. On 14 May 1998 a judge of the Lychakivsky District Court of Lviv found that the applicant’s conduct vis-à-vis Mrs P. fell within the ambit of Article 125 § 1 of the Criminal Code (simple defamation) and Article 126, and initiated criminal proceedings against the applicant. The judge further ordered that the applicant be placed under an undertaking not to abscond. 19. In the course of the investigation, the charges against the applicant were re-qualified from Article 125 § 1 to Article 125 § 3. 20. On 12 November 1999 the Prosecutors’ Office notified the applicant of his indictment under Article 125 § 3 and Article 126 of the Criminal Code. 21. On 15 November 1999 the investigation prepared a final bill of indictment under these provisions and gave the applicant access to the case file before its transfer for court proceedings. 22. On 26 January 2000 the Lychakivsky District Court held the first hearing in the applicant’s case. 23. In March 2000 the applicant’s case was transferred to the Shevchenkivsky District Court of Lviv (“the Shevchenkivsky Court”). 24. On 26 June 2001 the Shevchenkivsky Court found the applicant guilty of an offence under Article 125 § 3 as charged and dropped charges under Article 126 as redundant. It sentenced him to one year’s imprisonment suspended for one year and to a fine of 200 Ukrainian hryvnas (UAH). The court also allowed Mrs P.’s civil claim in part and ordered the applicant to pay her UAH 1,000 in non-pecuniary damages and UAH 100 in legal fees. 25. In its judgment the court established that in numerous letters signed by the applicant, Mrs P. had been baselessly accused of misappropriation of public funds. The court also found that the applicant had initiated and participated in the picketing of 26 May 1997, referring to various pieces of evidence, including submissions by several School employees that they had seen him during the picket holding a slogan. 26. The applicant appealed against the judgment of 26 June 2001. He alleged in particular that the prosecution had failed to prove that he had intentionally disseminated falsehoods. Furthermore, no attention had been accorded to the fact that he had acted in his official capacity as a local VOST leader, empowered by the union members to inform the authorities about Mrs P.’s official misconduct and that according to the findings of the KRU and the law-enforcement authorities his accusations had not been entirely baseless. The applicant further denied any involvement in the picketing, referring to his absence on the photographs of the picket made by the plaintiff as well as to a doctor’s certificate concerning his inpatient treatment until 27 May 1998. He also alleged that the case could not be considered under § 3 of Article 125 of the Criminal Code, as pursuant to the decision of 14 May 1998 criminal charges filed by Mrs P. under this provision had been re-qualified as charges under § 1 of Article 125. 27. On 21 August 2001 the Lviv Regional Court of Appeal heard the case in the applicant’s absence and upheld the judgment of 26 June 2001. It found, in particular, that the applicant’s guilt, including in respect of participation in the picketing, had been proved by numerous sources of evidence. In particular, several School employees attested to having seen the applicant holding a slogan during the picketing and his doctor stated that his treatment had not precluded him from leaving the hospital premises. 28. The applicant filed eleven cassation appeals, which were dismissed due to his failure to follow formalities envisaged by law. On 25 April 2003 a judge of the Supreme Court declared the applicant’s twelfth appeal in cassation, in which he raised essentially the same arguments as in his appeal, admissible. 29. On 13 November 2003 the Supreme Court upheld the previous judgments. 30. The text of Article 125 of the Code read as follows: Defamation [Наклеп], namely the intentional dissemination of falsehoods aimed at damaging the reputation of another shall be punishable by ... Defamation in print ... shall be punishable by .... Defamation linked with an unfounded accusation of committing a grave offence shall be punishable by up to five years’ imprisonment. 31. Article 126 of the Code provided as follows: “Insult [Образа], namely the intentional humiliation of the honour and dignity of a person expressed in an indecent form shall be punishable by ...” 32. Following a process of legislative reform, the New Ukrainian Criminal Code of 5 April 2001 no longer classifies defamation and insult as criminal offences. 33. The text of Article 27 of the Code of Criminal Procedure (governing the private prosecution proceedings, as in force before 21 June 2001) may be found in the judgment of 10 August 2006 in the case of Lyashko v. Ukraine (no. 21040/02, § 23). | 1 |
dev | 001-60752 | ENG | ITA | CHAMBER | 2,002 | CASE OF CILIBERTI v. ITALY | 4 | Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 8. The applicant is the owner of an apartment in Torre del Greco, which he had let to A.P. 9. In a writ served on the tenant on 24 October 1990, the applicant informed the tenant of his intention to terminate the lease on expiry of the term on 31 December 1991 and summoned him to appear before the Naples Magistrate. 10. By a decision of 30 November 1990, which was made enforceable on the same day, the Naples Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by 31 December 1992. 11. On 11 March 1993, the applicant made a statutory declaration that he urgently required the premises as accommodation for his daughter. 12. On 19 March 1993, the applicant served notice on the tenant requiring him to vacate the premises. 13. On 7 April 1993, he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on 26 April 1993. 14. Between 26 April 1993 and 16 January 1997, the bailiff made nine attempts to recover possession. Each attempt of the bailiff proved unsuccessful, as the applicant was never granted the assistance of the police in enforcing the order for possession. 15. On 28 April 1997, the tenant vacated the premises. 16. The relevant domestic law is described in the Court’s judgment in the case of Immobiliare Saffi v. Italy [GC], no. 22774/93, §§ 18-35, ECHR 1999-V. | 1 |
dev | 001-97175 | ENG | GBR | ADMISSIBILITY | 2,010 | YESUFA v. THE UNITED KINGDOM | 4 | Inadmissible | Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza | The applicant, Mr Ayodeji Yesufa, is a Nigerian national who was born in 1984. He currently lives in Nigeria. He was represented before the Court by Doves Solicitors, a firm of solicitors practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant and his brother arrived in the United Kingdom in 1987 to join their father, who was resident there, and their sister, who was born in the United Kingdom and was a British citizen. When the applicant’s father died in 1995 his mother came to the United Kingdom to care for him. On 14 August 2000 the applicant was granted Indefinite Leave to Remain as a dependant of his mother. Shortly after the death of his father, the applicant began to mix with older children and he started to commit criminal offences. When he was approximately twelve years old he was expelled from school. Between August 1998 and September 2003 he accumulated twenty-six criminal convictions arising from fifteen sentencing hearings for offences including criminal damage, driving whilst uninsured, receiving stolen goods, possession of a Class B drug (cannabis), common assault and burglary. The maximum sentence that he received was a twelve month detention and training order. On 14 December 2004 the applicant was convicted of robbery. On 19 January 2005 was sentenced to four years’ imprisonment. In two separate incidents the applicant and a number of accomplices had stolen GBP 80 and some alcoholic beverages from an off-licence and four items of jewellery from a pawn brokers. During the second incident the applicant and his accomplices were armed with iron bars. On 30 January 2006 the Secretary of State for the Home Department wrote to the applicant asking him to submit reasons why he should not be deported following his conviction on 14 December 2004. His representations were considered but the Secretary of State concluded that his deportation would be conducive to the public good. That decision was issued to the applicant on 18 February 2006. He appealed to the Asylum and Immigration Tribunal (“AIT”). On 26 April 2006 the Immigration Judge dismissed the appeal, holding, inter alia, that the decision appealed against would not cause the United Kingdom to be in breach of the law or its obligations under the Convention as the applicant did not enjoy family life in the United Kingdom and there were no insurmountable obstacles to his mother and brother returning to Nigeria with him. The AIT found no error of law in the Immigration Judge’s decision and refused to make an order for reconsideration. In an undated decision the Administrative Court ordered the AIT to reconsider the Immigration Judge’s decision on the ground that the judge had erred in law in finding that the applicant’s family could be expected to return to Nigeria with him. On reconsideration, the AIT accepted that the applicant had established both family and private life in the United Kingdom but held that any interference was not a disproportionate exercise of the Secretary of State’s discretion to make a deportation order. On 8 August 2007 the AIT refused to grant the applicant leave to appeal to the Court of Appeal. The applicant was released on licence on 5 January 2007. He subsequently was convicted of a further eight offences, including carrying a lock knife in a public place, breaching bail conditions, possession of a Class A drug and motoring offences. On 22 October 2008 the applicant was deported to Nigeria. On 15 September 2009 the applicant indicated for the first time that he had been in a ten-year relationship with a British citizen, who had given birth to their child on 7 June 2009. Sections 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State. Section 3(5)(a) of the same Act (as amended by the Immigration and Asylum Act 1999) provides that a person who is not a British citizen shall be liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good. Sections 82(1) and 84(1)(a) of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against a decision to deport, inter alia, on the grounds that the decision is incompatible with the Convention and that it was not in accordance with the Immigration Rules. The Rules relating to the revocation of a deportation order are contained in paragraphs 390 and 391 of the Immigration Rules HC 395 (as amended), supplemented by Chapter 13 of the Immigration Directorate’s Instructions (“IDIs”). There is no specific period after which revocation will be appropriate although Chapter 13 of the IDIs gives broad guidelines on the length of time deportation orders should remain in force after removal. Cases which will normally be appropriate for revocation three years after deportation include those of overstayers and persons who failed to observe a condition attached to their leave, persons who obtained leave by deception, and family members deported under section 3(5)(b) of the Immigration Act 1971. With regard to criminal conviction cases, the normal course of action will be to grant an application for revocation where the decision to deport was founded on a criminal conviction which is now “spent” under section 7(3) of the Rehabilitation of Offenders Act 1974. Paragraph 391 of the Rules, however, indicates that in the case of an applicant with a serious criminal record continued exclusion for a long term of years will normally be the proper course. This is expanded on in Annex A to Chapter 13 of the IDIs, which indicates that revocation will not normally be appropriate until at least 10 years after departure for those convicted of serious offences such as violence against the person, sexual offences, burglary, robbery or theft, and other offences such as forgery and drug trafficking. | 0 |
dev | 001-93294 | ENG | POL | CHAMBER | 2,009 | CASE OF KATA v. POLAND | 4 | No violation of Article 6 - Right to a fair trial | Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | 6. The applicant was born in 1945 and lives in Lubin. 7. In 1973 he had a car accident. 8. On 28 February 1977 the Lubin District Court (Sąd Rejonowy) granted the applicant a life disability pension payable by the insurer, Polish Insurance Establishment (Polski Zakład Ubezpieczeń), in the amount of 1,000 old Polish zlotys a month. 9. The insurer did not pay the applicant’s disability pension for the years 1995 to 2000. Following a complaint by the applicant in 2000, the insurer paid him the amount of 30.94 Polish zlotys (PLN), which at the relevant time was the equivalent of 7.50 euros. The applicant unsuccessfully requested several times that his pension be index linked. 10. On 30 September 2004 the applicant lodged a civil claim against the insurer. He sought the indexed pension for the years 1995-2000. The value of his claim amounted to PLN 30,480. 11. On 15 October 2004 the applicant requested the court to exempt him from the court fee. 12. On 20 November 2004 he rectified the procedural shortcomings of his request. He submitted a declaration of means, pursuant to Article 113 § 1 of the Code of Civil Procedure (Kodeks Postępowania Cywilnego). The relevant part of that declaration read as follows: “I am married. My wife receives a disability pension of PLN 500 a month. I receive a disability pension of PLN 1,300 a month. We have our three biological grandchildren, to whom we are foster parents, to support. The grandchildren are 3, 8 and 18 years of age and the oldest grandchild is still at school. Our constant monthly expenses are: - rent – PLN 320, - water – PLN 100, - electricity – PLN 120, - gas – PLN 70, - television – PLN 80, - telephone – PLN 90, -medicaments – PLN 120. I do not have any shares or securities or any savings. I do not have a car or any other property of financial value. In my opinion payment of the court fees will entail a substantial reduction in my and my family’s standard of living.” 13. On 4 December 2004 the applicant completed his declaration of means submitting that he received a disability pension of PLN 1, 383.33, his wife received a disability pension of PLN 537.93 and as foster family for their three grandchildren they received a financial benefit of PLN 2,049.40. 14. On 14 December 2004 the applicant was granted an exemption from court fees exceeding the amount of PLN 1,200 for his claim. The entire fee amounted to PLN 2,233.60. The applicant did not appeal against that decision and paid the required amount. 15. On 5 May 2005 the Legnica Regional Court (Sąd Okręgowy) gave judgment, dismissing the applicant’s claim for compensation. 16. On 17 June 2005 the applicant appealed against the first-instance judgment. 17. On 1 July 2005 he requested an exemption from the court fees in the appellate proceedings. The fees amounted to PLN 2,234. 18. On 12 July 2005 the Legnica Regional Court granted him an exemption from court fees exceeding PLN 1,000. 19. On 12 July 2005 the applicant lodged an interlocutory appeal (zażalenie) against that decision. 20. On 27 July 2005 the Wrocław Court of Appeal (Sąd Apelacyjny) dismissed his appeal. The relevant part of the Court of Appeal’s reasoning read as follows: “The Court found that, although the income received by the applicant and his wife was not high, they should, however, when lodging an appeal, have been aware that they would have to pay the court fee, and should have made the necessary savings in advance. The court’s view could not be altered by the fact that the applicant and his wife were a foster family for their 3 grandchildren. A party seeking his or her claim in a court should limit other expenses.” 21. On 28 September 2005 the Legnica Regional Court discontinued the appellate proceedings. 22. The legal provisions applicable at the material time and questions of practice are set out in paragraphs 23-33 of the judgment delivered by the Court on 19 June 2001 in the case of Kreuz v. Poland (no. 28249/95, ECHR 2001-VI; see also the judgment delivered by the Court on 26 July 2005 in the case of Jedamski and Jedamska v. Poland, no. 73547/01, §§ 29-39). | 0 |
dev | 001-58220 | ENG | FRA | CHAMBER | 1,998 | CASE OF COUEZ v. FRANCE | 3 | Violation of Art. 6-1;Non-pecuniary damage - financial award | Feyyaz Gölcüklü;N. Valticos;R. Pekkanen | 6. Mr Couez was born in 1941 and lives at Saint-Quentin (département of Aisne). On 20 January 1989 he had a heart attack during the annual cross-country race held by the company of CRS (Compagnies républicaines de sécurité – mobile security police units) to which he belonged. After being on sick-leave from 20 to 23 January 1989 and from 25 January to 11 April 1989, he returned to work. On 8 February 1991 he applied for extended sick-leave and asked that his heart attack and the subsequent periods of sick-leave should be recognised as work-related so that he would be covered by the rules applicable to police officers injured in the execution of their duty. 7. On 3 May 1991 the inter-département medical board recommended that the application for extended sick-leave should be refused. On 14 May 1991 Mr Couez was notified of his authorities’ refusal to grant him the leave. In a letter of 27 December 1991 the Prefect of the Nord-Pas-de-Calais region informed the applicant that the medical board had recommended that his sick-leave should not be regarded as having been work-related and that he should be declared permanently unfit for active police duties and be transferred to the administrative staff until his retirement at 60; he stated that if either Mr Couez or the Ministry of the Interior refused this transfer, the applicant would be retired on grounds of invalidity with immediate effect. 8. On 20 January 1992 the applicant brought proceedings in the Amiens Administrative Court to challenge the Prefect’s decision of 27 December 1991 to inform him that the medical board had refused to regard sick-leave on 8 April 1990 as having been due to a work-related accident. On 5 February 1992 he also applied for a stay of execution of that decision. In the meantime, on 25 January 1992, Mr Couez had refused transfer to the administrative staff and on 3 February 1992 the Ministry of the Interior had declared him unfit for active police duties and had placed him on the ordinary sick list with retrospective effect from 8 August 1990. 9. In a judgment of 2 July 1992 the Amiens Administrative Court refused the application for a stay of execution of the decision of 27 December 1991. On 10 July 1992 Mr Couez was sent on compulsory unpaid leave of absence (disponibilité) with effect from 8 August 1991, the date on which he had exhausted his entitlement to ordinary sick-leave. On 4 September 1992, in a fresh decision, he was maintained in the same position. 10. On 5 August 1992 the Prefect informed the applicant that a Dr B. had been designated to examine him with a view to his being retired on grounds of invalidity. 11. On 24 March 1993 Mr Couez applied to the Amiens Administrative Court for an interim ruling by its President in the proceedings he had brought on 20 January 1992 (see paragraph 8 above). In an order of 25 March 1993 the President of the Administrative Court refused the application. 12. On 24 January 1994 Mr Couez was retired on grounds of invalidity. 13. On 31 May 1995 the Administrative Court made an interlocutory order for a medical report on the applicant. On 28 June 1996 it quashed the decisions of 10 July and 4 September 1992 in so far as they kept Mr Couez on compulsory unpaid leave of absence from 15 January 1992; it also set aside the decision of 24 January 1994 whereby he had been retired on grounds of invalidity (see paragraph 12 above); the court held that the applicant should have been retired on 25 January 1992, when he had refused the transfer proposal that had been made to him (see paragraph 8 above). On 25 July 1995 Mr Couez had appealed against the interlocutory order of 31 May 1995, and that appeal was still pending in the Nancy Administrative Court of Appeal on the date of delivery of the present judgment. 14. According to the Government, the applicant submitted twenty-seven pleadings between 20 January 1992 (the date of the application to the Amiens Administrative Court) and 28 June 1996 (when that court gave judgment). 15. On 18 March 1992 Mr Couez had also brought proceedings in the Amiens Administrative Court to challenge the decision of 10 July 1992 whereby he had been sent on compulsory unpaid leave of absence (see paragraph 9 above). He subsequently withdrew these proceedings, and on 31 May 1995 the Administrative Court delivered a judgment formally taking notice of the withdrawal. On 31 July 1995 the applicant appealed against that judgment, and the appeal was still pending in the Nancy Administrative Court of Appeal on the date of delivery of the present judgment. 16. According to the Government, the applicant filed seven pleadings with the Amiens Administrative Court (between 18 March 1992 and 31 May 1995) and three in the Nancy Administrative Court of Appeal (between 31 July 1995 and 4 June 1996). 17. The relevant sections of Law no. 84-16 of 11 January 1984 making provisions governing the civil service provide: Section 34 “A civil servant in post shall be entitled to: … (2) sick-leave of up to one year in all during a period of twelve consecutive months in the event of duly certified illness making it impossible for the person concerned to carry out his duties. The civil servant shall then remain on full salary for a period of three months and shall be paid half his salary for the following nine months… However, if the illness arises from one of the exceptional causes referred to in Article L. 27 of the Civilian and Military Retirement Pensions Code or from an accident that occurred in the performance of his duties or when performing them, the civil servant shall be paid his full salary until he is able to resume his duties or is retired. He shall further be entitled to reimbursement of medical fees and expenses directly entailed by the illness or accident. (3) extended sick-leave of a maximum length of three years in cases in which it is established that the illness makes it impossible for the person concerned to carry out his duties, requires prolonged treatment and care, is disabling and has been confirmed as serious. The civil servant shall remain on full salary for one year and shall be paid half his salary for the following two years…” Section 51 “A civil servant is on leave of absence if he is no longer in his original department or service and ceases in that position to enjoy his promotion and pension rights. Leave of absence is either granted at the civil servant’s request or is compulsory at the end of the leave referred to in subsections (2), (3) and (4) of section 34 above. A civil servant on leave of absence who successively refuses three posts offered to him with a view to his reinstatement may be dismissed after consultation of the joint administrative committee.” Section 65 “A civil servant who has become disabled as a result of a work-related accident entailing permanent disablement of at least 10% or an occupational disease may claim a temporary disablement allowance payable in addition to his salary and the amount of which shall be set as a fraction of the minimum salary … corresponding to the percentage of disablement. The eligibility requirements and the arrangements for granting, assessing, paying and reviewing temporary disablement allowances shall be laid down in a decree issued after consultation of the Conseil d’Etat which shall also specify the occupational diseases.” | 1 |
dev | 001-104355 | ENG | TUR | CHAMBER | 2,011 | CASE OF ŞAMAN v. TURKEY | 3 | Violation of Art. 6-1+6-3-c;Violation of Art. 6-3-e;Remainder inadmissible;Non-pecuniary damage - award | András Sajó;David Thór Björgvinsson;Françoise Tulkens;Ireneu Cabral Barreto | 4. The applicant was born in 1974 and at the time of lodging her application was serving a prison sentence in Buca Prison. 5. On 19 February 2004 the applicant was taken into police custody by police officers from the Denizli Security Directorate, upon intelligence reports that she was a member of the illegal organisation PKK/KONGRAGEL (the Kurdistan Workers' Party). When she was arrested, the applicant was in possession of a fake identity card. 6. On the same day the applicant was examined by a doctor, who noted that there was no sign of ill-treatment on her body. The applicant was subsequently taken to the Denizli Security Directorate for interrogation. 7. According to a form dated 19 February 2004 which explained an arrested person's rights, the applicant was reminded of her right to remain silent and was informed that she could request the assistance of a lawyer. The applicant marked this form with her fingerprint and stated that she did not want to be represented by a lawyer. Subsequently, a police officer prepared a further report, in which it was stated that although the applicant had been reminded of her right to legal assistance she had expressed her wish to defend herself in person. The applicant marked this report with her fingerprint as well. 8. On 20 February 2004 the applicant was questioned by the police in the absence of a lawyer. Before the questioning commenced the applicant was once again reminded of her right to have legal assistance, but she refused. In her police statement the applicant gave a detailed account of her involvement in the illegal organisation. 9. On 20 and 21 February 2004 respectively, the applicant was examined by a medical doctor. The medical reports indicated that there was no sign of ill-treatment on her body. 10. On 21 February 2004 the applicant was taken before the public prosecutor. During her questioning, the applicant was represented by a lawyer, Mr A.O. from the Denizli Bar Association, and she availed herself of her right to remain silent. The prosecutor questioned the applicant about the fake identity card that had been found on her during her arrest and the applicant accepted that she had been using a fake identity paper. The lawyer left the public prosecutor's office without signing the applicant's statement, stating that although the applicant had expressed her wish to remain silent, the prosecutor had continued asking questions. 11. The same day, the applicant was questioned by the investigating judge, again in the absence of a lawyer. Before the judge, the applicant retracted her police statement, stating that it had been taken under duress. When asked about her involvement in the illegal organisation, the applicant accepted that when she was a teenager she had joined the PKK and moved to Iraq. She denied however having taken part in any terrorist activity. She stated that she had come back to Turkey to benefit from the Reintegration of Offenders into Society Act (Law no. 4959). After the questioning was over, the investigating judge remanded the applicant in custody. 12. On 8 March 2004 the public prosecutor at the Izmir State Security Court filed an indictment with that court, accusing the applicant of membership of an illegal organisation, an offence under Article 168 of the former Criminal Code and Section 5 of the Prevention of Terrorism Act (Law no. 3713). 13. The proceedings commenced before the Izmir State Security Court and during the proceedings the applicant was represented by a lawyer. At the request of the applicant, the State Security Court gave permission to the applicant to have the assistance of an interpreter. In its decision the firstinstance court noted that the applicant was capable of expressing herself in Turkish; however, in order not to hinder her right to defence and to comply with Article 6 § 3 of the Convention, she was given leave to use an interpreter. 14. In her defence submissions before the Izmir State Security Court, the applicant retracted the statements she had made during the preliminary investigation stage. She alleged that she had been forced to fingerprint her statement. According to the applicant, as she was illiterate, she could not understand the content of the document. She went on to deny the accusations against her and explained that when she was a teenager she had escaped to Iraq for family reasons and that she had stayed in a refugee camp there. 15. On 1 October 2004, the applicant's representative brought to the attention of the Izmir State Security Court that the applicant, being of Kurdish origin, had a limited knowledge of Turkish and that during her police custody she had not had the assistance of a lawyer or an interpreter. 16. During the trial, the Izmir State Security Court took into consideration the police statements of three people who had also been charged with membership of the PKK. These three people testified that the applicant was a member of the PKK. 17. In the meantime, Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, abolished State Security Courts. The case against the applicant was therefore transferred to the Izmir Assize Court. 18. On 26 October 2004 the Izmir Assize Court found the applicant guilty as charged and sentenced her to twelve years and six months' imprisonment. In convicting her, the court had regard to the applicant's police statement and the statements of three witnesses who had confirmed that the applicant was a member of the PKK. 19. The applicant appealed. In her appeal, she alleged that her right to legal assistance during police custody had been breached in so far as she had been denied the assistance of a lawyer. 20. On 14 March 2005 the Court of Cassation upheld the judgment of the first-instance court. 21. On 13 June 2005 the Izmir Assize Court re-examined the case in the light of the new Criminal Procedure Code which entered into force in 2005. It found the applicant guilty as charged but reduced her sentence to six years and three months' imprisonment. 22. A description of the relevant domestic law concerning the right of access to a lawyer may be found in Salduz v. Turkey ([GC] no. 36391/02, §§ 2731, 27 November 2008). | 1 |
dev | 001-93436 | ENG | POL | ADMISSIBILITY | 2,009 | JOZEF OLEKSY v. POLAND | 3 | Inadmissible | Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza | The applicant, Mr Józef Oleksy, is a Polish national who was born in 1946 and lives in Warsaw. He is represented before the Court by Mr W. Tomczyk, a lawyer practising in Warsaw. 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. Following the entry into force of the Law of 11 April 1997 “on disclosing work for or service in the State’s security services or collaboration with them between 1944 and 1990 by persons exercising public functions” (ustawa o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach 1944-1990 osób pełniących funkcje publiczne) (the “1997 Lustration Act”), the applicant, a former Prime Minister who at the material time had been a member of the Sejm, declared that he had not collaborated with the Communist-era secret services. On 25 June 1999 the Commissioner of the Public Interest (Rzecznik Interesu Publicznego), Mr B. Nizieński, applied to the Warsaw Court of Appeal (Sąd Apelacyjny) for proceedings to be instituted in the applicant’s case on the grounds that he had lied in his lustration declaration by denying that he had cooperated with the secret services. On 25 June 1999 the Warsaw Court of Appeal decided to institute lustration proceedings against the applicant. The court was composed of three judges: a judge rapporteur A.L. and judges Z.B. and R.K. The decision contained the following reasons: “The Commissioner of the Public Interest lodged with the Warsaw Court of Appeal an application for lustration proceedings to be instituted in respect of Józef Oleksy. The Court of Appeal finds that the application should be granted. The materials submitted together with the application point to the assessment (wskazują na ocenę) that Józef Oleksy lodged an untrue lustration declaration. In those circumstances it has been decided as above.” On 25 October 2000 the Warsaw Court of Appeal, acting as the firstinstance lustration court, found that the applicant had submitted an untrue lustration declaration because he had not revealed that he had intentionally and secretly collaborated with the State’s secret services. The operative part of the judgment was served on the applicant; however, the reasoning was considered “top secret” and, in accordance with Article 100 § 5 of the Code of Criminal Procedure, could only be consulted in the secret registry of the court. The applicant lodged an appeal. On 27 June 2000 the Warsaw Court of Appeal, acting as the secondinstance lustration court, allowed the applicant’s appeal and quashed the impugned judgment. On 13 June 2004 the magazine Newsweek-Polska published an article on the applicant’s lustration case and his alleged cooperation with the secret services. According to the applicant, the article relied on documents and information in the case file that had been classified “top secret” and was presented in a manner that made him believe that they had been obtained from the Commissioner of the Public Interest. On 17 June 2004 the applicant applied to have the Commissioner, Mr B. Nizieński, excluded from dealing with his case on the grounds that there was reasonable doubt as to his impartiality. On 24 June 2004 the First President of the Supreme Court decided that under domestic law he did not have the right to examine the applicant’s challenge of the Commissioner as he could not be considered his superior within the meaning of Article 48 § 1 of the Code of the Criminal Procedure. The applicant lodged a constitutional complaint against that decision. On 21 September 2004 the Constitutional Court (Trybunał Konstytucyjny) refused to hear the complaint, mainly on the ground that it was not competent to decide on issues concerning gaps in the law. It reiterated its role as a “negative legislator”, in that it was called on to strike down laws that breached the Constitution, but had no legislative powers. An appeal by the applicant against that decision was dismissed on 19 May 2005. The applicant’s lawyer was notified of this decision on 24 May 2005. On 19 May 2005 the Constitutional Court decided to inform the Sejm that the case disclosed a gap in the law in that it had not provided for a procedure for challenging the Commissioner of the Public Interest, nor an authority to which such a challenge could be directed. The closing of such a gap in the law was, in the court’s opinion, indispensable to ensure the integrity of the legal system, and respect for the rule of law, defence rights and the right to court. The Commissioner of the Public Interest, Mr B. Nizienski, took part in the proceedings up to the end of the applicant’s lustration trial on 22 December 2004. On 22 December 2004 the Warsaw Court of Appeal gave a judgment in which it found the applicant guilty of lying in his lustration declaration. The court was composed of three judges, including a judge rapporteur, R.K. The written reasons, numbering 189 pages, were considered “top secret” and could be consulted only in the secret registry. On 4 March 2005 the applicant’s lawyer lodged an appeal. He complained, inter alia, that the judge, R.K., who dealt with the case at the initial stage of the proceedings, should have been disqualified from dealing with the case as there was reasonable doubt as to his impartiality. On 21 October 2005 the Warsaw Court of Appeal, acting as a secondinstance lustration court, upheld the impugned judgment. The applicant could consult the written reasons for the judgment in the secret registry of the court. On 26 January 2006 the applicant’s lawyer consulted the file and complained to the court that the reasoned judgment did not contain the dissenting opinion. The dissenting opinion, which was 50 pages long, was submitted to the parties on 21 February 2006, only three days before the expiry of the time-limit for lodging a cassation appeal. On 24 February 2006 the applicant’s lawyer lodged a cassation appeal with the Supreme Court (Sąd Najwyższy). He argued that the applicant had not been aware of an obligation to disclose his activities for the Agenturalny Wywiad Operacyjny, “AWO”, a separate agency, which according to information in his possession could not be considered as belonging to the secret services within the meaning of the Lustration Act. On 31 January 2007, after a hearing, the Supreme Court quashed both previous judgments of the Warsaw Court of Appeal of 21 October 2005 and 22 December 2004 and discontinued the lustration proceedings against the applicant (umorzył postępowanie). It established that the lustration declaration submitted by the applicant had been “subjectively untrue but objectively true” (obiektywnie nieprawdziwe lecz prawdziwe subiektywnie oświadczenie lustracyjne). When submitting his declaration the applicant had been misled by the two most competent persons in the field, the Minister of Defence and the Head of Military Information Services (Szef Wojskowych Służb Informacyjnych), who had infbłąd usprawiedliwiony) and the applicant was not found to have been a “lustration liar”. Section 28 of the 1997 Lustration Act, amended with effect from 8 March 2002, provides: “A final judgment finding that the declaration submitted by the subject was untrue shall be published immediately in the Official Law Gazette (Dziennik Urzędowy RP Monitor Polski) if 1) no cassation appeal has been lodged within the prescribed time-limit; or 2) the cassation appeal has been left unexamined; or 3) the cassation appeal has been dismissed.” Section 30 lists the consequences of such a judgment for a person subject to lustration who has submitted an untrue declaration. It reads, in so far as relevant: “1. A final judgment finding that the subject has submitted an untrue declaration shall result in the loss of the moral qualifications necessary for exercising public functions, described according to the relevant laws as: unblemished character, immaculate reputation, irreproachable reputation, good civic reputation, or respectful of fundamental values. After 10 years the judgment shall be considered to be of no legal effect. 2. A final judgment finding that the subject has submitted an untrue declaration shall entail dismissal from the functions exercised by that person if the moral qualifications mentioned above are necessary for exercising it. 3. A final judgment finding that the subject has submitted an untrue declaration shall deprive that person of the right to stand for election as President for a period of 10 years.” The detailed rendition of the provisions of the domestic law is set out in the Court’s judgment in the case Matyjek v. Poland, no. 38184/03, ECHR 2007... | 0 |
dev | 001-84110 | ENG | MKD | CHAMBER | 2,007 | CASE OF NIKOLOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 4 | Violation of Art. 6-1 | Peer Lorenzen | 5. The applicant was born in 1949 and lives in Štip. 6. On 11 November 1996 the applicant, a farmer who reared cows, concluded an insurance agreement (полиса за осигурување) (“the agreement”) with an insurance company (“the defendant”) against a risk of the cows' death under which the latter would be liable to pay the damage, irrespective of the time of the death, if it was caused by reasons other than illness. On 23 November 1996 one of the applicant's cows died. Since the defendant refused to pay for the loss, on 30 January 1997 the applicant brought a claim against the defendant before the Štip Court of First Instance (“the first-instance court”). 7. On 1 March 1997 the trial judge's wife was employed with the defendant as an assistant to the manager of its branch office. 8. On 30 January 1998 the first-instance court dismissed the applicant's claim. 9. The applicant appealed, arguing, amongst other things, that the first-instance court had arbitrarily given weight to evidence in favour of the defendant and that it had refused to examine witnesses as to the cause of death. 10. On 17 June 1998 the Štip Court of Appeal quashed the court of first instance's decision, instructing it to hear evidence from the vet who had examined the cow in order to determine the cause of the death. 11. On 28 March 2000 the first-instance court dismissed the applicant's claim, reiterating its earlier findings. 12. On 20 June 2000 the applicant appealed, arguing that he had never received a copy of the general terms of the contract, and that the cause of death had not been properly established. He also contended that that judge was biased since his wife had started working with the defendant just after the proceedings had started. He asked for the trial judge to be removed if the Court of Appeal were to quash the lower court's decision and remit the case 13. On 27 November 2000 the Court of Appeal dismissed the applicant's appeal, finding no grounds to depart from the established facts and the reasons given by the lower court. It did not make any comments on the applicant's allegations that the trial judge was biased. 14. The decision was served on the applicant on 24 April 2001. 15. The relevant provisions of the then Civil Proceedings Act (Закон за парничната постапка) provided as follows: “A judge or a lay-judge cannot perform his/ her judicial function if: he/ she is a party, a statutory representative or a counsel of a party...; he/ she is permanently or temporary employed by a party to the proceedings; the party or its counsel is his/ her relative...; he/ she is a custodian, an adoptive parent, an adoptive child ...of a party; he/ she participated in the rendering of any decision by a lower court or another body; and there are other grounds which cast doubts to his/her impartiality.” Section 66 § 2 “A judge who considers that there are other grounds which put his/her impartiality under doubt should give notice to the President of the court who will decide on his/her exclusion.” Section 67 §§ 1, 2, 4 “The parties may also challenge the participation of a judge. The party concerned is obliged to challenge (изземање) a trial judge or a lay-judge as soon as it learns about it, but not later than the end of the trial before the first-instance court i.e. until the adoption of the decision. The party concerned is obliged to provide the reasons for challenging a judge's ability to sit in a case.” | 1 |
dev | 001-102141 | ENG | GBR | CHAMBER | 2,010 | CASE OF MACKAY AND BBC SCOTLAND v. THE UNITED KINGDOM | 3 | Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 13+10 - Right to an effective remedy (Article 13 - Effective remedy) (Article 10 - Freedom of expression -{General}) | David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza | 5. On 13 September 2004 two men went on trial in the High Court of Justiciary sitting at Glasgow on charges of importing and supplying controlled drugs. The proceedings were filmed and relayed through a closed-circuit television system to a remote viewing room in the court building. On 23 September 2004, it was discovered that police officers and prosecution staff had been watching the proceedings in the remote viewing room with the risk that defence conversations might have been overheard. When this was brought to the attention of the trial judge on 28 September 2004, he took the decision to desert the trial diet simpliciter since he believed that no fair trial could continue before him. This decision had the effect of bringing the prosecution case to an end resulting in the acquittal of the accused. The desertion simpliciter meant that the accused could not be reindicted. 6. The same day, the trial judge heard argument from counsel for BBC Scotland before making an interim order under section 4(2) of the Contempt of Court Act 1981 preventing the publication of any report of the proceedings. That order was to become final on 30 September 2004 unless any interested party applied to the court for its recall (quashing) or variation. On 29 September 2004, BBC Scotland appeared before the trial judge and made representations in respect of the order. The trial judge varied the interim order to the effect that publication of any report of the proceedings was prohibited until the completion of any appeal and any further trial. The varied order was to become final on 1 October 2004 unless there was another application to recall or further vary it. 7. The Crown appealed against the decision of the trial judge to desert the trial diet simpliciter. The appeal was scheduled to be heard by the High Court of Justiciary (sitting as an appeal court in Edinburgh) on 15 February 2005. 8. In advance of the hearing, BBC Scotland sent a number of letters to the Clerk of the High Court of Justiciary, seeking an opportunity to address the court should an application to prevent publication of any report of the appeal proceedings be made. On 5 February 2005, counsel for BBC Scotland was told verbally by court officials that no opportunity would be made available for it to make representations in court. A further fax asking for a hearing was sent by BBC Scotland the same day. No response was received. 9. On the morning of 15 February 2005, the High Court of Justiciary, on the unopposed motion of the Crown, made a section 4(2) order prohibiting the publication of a report of any part of the appeal hearing until completion of the appeal. The applicants, in their observations to this Court, maintain that their representative attended the High Court hearing that morning but was not heard. The order made by the High Court was to become final on 17 February 2005 unless an application was made to recall or vary it. The order was posted on the Scottish Courts Service website and circulated to the Scottish media. 10. On the afternoon of 15 February 2005, BBC Scotland sent another fax to the High Court stating that it wished to be heard on the order as soon as possible. BBC Scotland were then contacted and advised that a hearing would be fixed but not before 18 February 2005. The Government, in their observations to this Court, maintain that BBC Scotland did not challenge that decision. On 18 February, BBC Scotland sent another fax to the High Court advising that a telephone call to their offices would be sufficient to enable them to arrange representation before the High Court within twenty-four hours. The fax also conveyed BBC Scotland's understanding that, if the High Court dismissed the prosecution's appeal, then BBC Scotland would be heard by the court in respect of the section 4(2) order. 11. The Government maintain that BBC Scotland did not contest the decision not to hold a hearing before 18 February 2005 and, because no application had been made to recall or vary the interim order before 17 February 2005, the interim order became final on 17 February 2005. The applicants maintain that their fax of 15 February 2005 was intended to be an application to recall or vary the interim order; as such, the interim order did not become final on 17 February 2005. 12. The prosecution's appeal was determined on 24 March 2005. On the basis of further information provided by the prosecution as to who had been watching the trial proceedings in the remote viewing room, the Appeal Court recalled the order of the trial judge and substituted an order for desertion pro loco et tempore, which allowed for the re-indictment of one of the original accused. On the same date, the Appeal Court deferred its consideration of BBC Scotland's application for the recall of the section 4(2) order made on 15 February 2005. On 21 June 2005, the Appeal Court recalled that order. 13. Section 4(2) of the Contempt of Court Act 1981 provides that where legal proceedings are held in public, in any such proceedings the court may, where it appears to be necessary for avoiding a substantial risk of prejudice to the administration of justice in those proceedings, or in any other proceedings pending or imminent, order that the publication of any report of the proceedings, or any part of the proceedings, be postponed for such period as the court thinks necessary for that purpose. 14. Section 159 of the Criminal Justice Act 1988 provides that in England and Wales, where such an order is made, an aggrieved person may appeal such an order to the Court of Appeal. The section does not apply to Scotland. Instead, following the High Court of Justiciary's ruling in Galbraith v. H.M. Advocate 2001 S.L.T. 465, where the question was considered obiter dicta, it appears that the practice of Scottish courts will be to make interim orders for forty-eight hours, to give notice of the interim order to the legal representatives of media organisations and give them the opportunity to address the court on the terms of the interim order. A full copy of any section 4(2) order is intimated to press and media contacts who are listed with the Scottish Courts Service. The names of cases where section 4(2) orders are in place are available from the Scottish Courts Service website. 15. The concept of nobile officium in Scots law is an extraordinary equitable power vested in, inter alia, the High Court of Justiciary. It was described by the High Court in Anderson v. HMA 1974 SLT 239 as: “...a remedy for any extraordinary or unforeseen occurrence in the course of criminal business in any part of the country...In short, the principle is, that wherever the interposition of some authority is necessary to the administration of justice, and there exists no other judicature by whom it can competently be exercised, or which has been in use to exercise it, the Court of Justiciary is empowered and bound to exercise its powers [of nobile officium], on the application of the proper party, for the furtherance of justice” The procedure is used where there is no other remedy provided for by law. A petition to the nobile officium was brought in BBC Petitioners | 1 |
dev | 001-23019 | ENG | GBR | ADMISSIBILITY | 2,003 | MANSELL v. THE UNITED KINGDOM | 4 | Inadmissible | Matti Pellonpää;Nicolas Bratza | The applicant, Mr Daniel Mansell, is a United Kingdom national. He was born in 1969 and is in prison in HMP Gartree. He is represented before the Court by a firm of solicitors, Birnberg Peirce & Partners, London. The facts of the case, as submitted by the applicant, may be summarised as follows. In early June 1996 two elderly brothers living in Leeds were the victims of a violent robbery. On 13 October 1996 assailants again entered their house and the brothers were seriously injured, the eldest brother later dying of his injuries. In April 1997 the applicant and his own brother, PM, were arrested and charged with robbery of the elderly brothers in early June and on 13 October 1996 and with murder on 13 October 1996. The prosecution’s case was that the applicant and PM had targeted elderly victims following discussions between PM and KC at a time when PM and KC both were in custody. KC specialised in robberies of elderly and vulnerable persons and had been indicted for a number of such offences to which he had pleaded guilty and in respect of which he had given evidence against his own accomplice. While in custody, KC discussed his offences with PM and gave PM the addresses of victims known not to contact the police. KC also discussed such offences with the applicant, the latter of whom had expressed some interest in committing such crimes himself. The prosecution relied on the following elements: (a) KC’s evidence about the applicant’s and PM’s interest in his offences on the elderly and about confessions made to him by PM. The trial judge referred to KC’s motivation in giving evidence in his summing up as follows: “I must also give you a warning in relation to [KC]. I have already said something about him. He is an important cog in the prosecution’s wheel. It is alleged that he has something, much to gain. He says not. But you must consider very carefully his evidence and whether he has any motive for untruthfully saying what he is saying in this case. It is not alleged that he has any grudge against [PM] or [the applicant] or any reason adverse to them for shopping them. It is said, well, all supergrasses are strange people: they have motives of their own. It is the sort of argument that can be addressed in any case in which a supergrass does give evidence. There are particular criticisms of [KC] made, as you know, I have rehearsed some of them, by counsel already. You must consider his evidence with very considerable care.” (b) Ms A’s identification evidence. Ms A, a neighbour of the elderly brothers, had seen two men near her home on 13 October 1996. In her first statement (16 October 1996), she made no reference to the colour of the eyes of either of the men. The surviving elderly brother later described one of the men as having “piercing blue eyes”. In her second statement (20 November 1996), she said that one of the men had “piercing blue eyes”. Ms A had also attended three identity parades. At the first parade (10 November 1996) a suspect (one J. Foley) was included in the line-up. At the second (5 December 1996) PM was the suspect included in the line-up. At the third (1 May 1997) the applicant was the suspect included in a line-up and he was identified by Ms A. The defence had been furnished prior to the trial with material including the results of the second and third identity parade. During the trial (at the latest) the parties also knew that there had been three identity parades in total, that material concerning the first of those parades had not been furnished, that Ms A had not formally identified anyone at the second parade and that she had identified the applicant during the third parade. The applicant’s counsel questioned Ms A in detail about the identity parades, but focussed his questioning on the second and third parades. The extract from the transcript is as follows: “Counsel. Do your remember indicating that a man number eight looked like the person you had seen in the lane? A. I can’t remember if I picked someone out ‘cause I didn’t think I’d pulled anyone out. Counsel. This was not the first parade which I think was in the November, from recollection, this is the second parade which is December. A. No. Trial Judge. Ah, I think she was under the mistaken impression that you were talking about the first parade. ... A. No, I didn’t pull anyone out. Counsel. Not on the first parade this is the second parade. A. No. I didn’t tell them, no. ... Trial Judge. You did not pick anyone out? A. No.” The applicant’s counsel went on to question her about the third parade. The Court of Appeal later outlined Ms A’s evidence at trial as follows: “[Ms A] was a neighbour of the brothers and at about 3.00-3.30 p.m. on the day of the second robbery and the murder she went outside her house to check on her children who were walking the dog in the lane. She went to the back of the house when she heard quick heavy footsteps at the bottom of the road. She positioned herself so that she could see down the road. She saw two men walking quickly towards her. They looked odd. They were dressed in winter clothes, it was a warm and sunny day. The man nearest to her stared at her in a way that frightened her. From the moment she first saw them they were in full view. The vision conditions were perfect and she had an unobstructed view of them for the 50-60 yards distance as they walked towards her. She gave meticulous descriptions of the men. The man who had been nearest to her had very scruffy, long, brown hair, a pale complexion and sunken blue eyes. He wore a jumper, jacket and scruffy trainers and gloves. The other man was broader and older, he had dark brown long, straight, scruffy hair, but was not as pale. In evidence she described how she had attended an identification parade on the 1st May to see if she could identify the man with the blue eyes. She picked out [the applicant]. She had been on two parades previously, she said she had been very frightened on those. She had not identified anyone on those occasions.” The trial judge confirmed, in his summing up, that Ms A had been on two identity parades prior to the parade when she had identified the applicant, that she had been frightened, that there was someone on one of those parades that she thought might have been one of the men she had seen but that she was not sure about that and “so she did not identify anybody.” The trial judge also stated that: “[Ms A’s] evidence is obviously important, because on the correctness of her identification a lot in this case clearly rests ... you can see that the importance of [Ms A’s] statement cannot be overstated. It is very important evidence indeed”. (c) The presence of a foot-print in blood in the elderly brothers’ house made by the same make and the same size as the footwear found in the applicant’s garden shed on the day he was arrested and the relevant supporting scientific evidence. (d) A map of Leeds found in KC’s possession (on it were hand-written notes of KC’s offences and directions to the elderly brothers’ home) together with the applicant’s evasive answers when questioned about the map (which suggested that it was his handwriting). PM’s fingerprints were on the map. A piece of paper upon which the word “Boris” was written had been found at PM’s home: Boris had been a target of KC and his name had been marked in the above-mentioned map of Leeds. (e) PM’s admission that he had gone to visit another of KC’s targets. (f) The applicant and PM had given differing accounts in interviews and evidence of their movements on the 11 June and 13 October 1996. The applicant denied the offences and submitted that the evidence was flawed. He stated that he had never met KC, although he had visited PM in prison. He asserted that KC was unreliable as a man of bad character who had committed a large number of offences himself and who had a self-serving motive having done a deal with the prosecution to obtain early parole. Covert tapes had shown KC to be a liar and the applicant questioned why, if KC was feeding information to the police, the police did not listen into and tape telephone calls. He denied that it was his hand-writing on the map of Leeds and submitted that the addresses of the victims would have been known to other criminals too. There was no forensic evidence pointing to him: his boots were too worn to have left the footprint found. He lied about his movements during police interviews as he did not want to be associated with PM who was being accused of murder. However, he had then quickly given a correct account of his movements on 13 October 1996 to the police which was consistent with his later evidence and the later evidence of PM. He also took issue with Ms A’s evidence: he had short hair, was tanned after a holiday at the relevant time and had a distinctive tattoo on his neck whereas she had said that he had long hair and was pale-skinned and she had failed to remark a tattoo on his neck although her evidence was that he was wearing a low-necked pullover at the time. On 27 February 1998, following a trial of 20 days, the applicant and PM were convicted by a majority verdict (of 10-2) of robbery on or about 11 June 1996 and of murder on 13 October 1996 and by a majority verdict (11-1) of robbery on 13 October 1996. The applicant was sentenced to life imprisonment for murder and to 10 years’ imprisonment for the robbery offences, the latter sentence to run concurrently. The applicant applied for leave to appeal to the Court of Appeal. The matter came before the Court of Appeal on 30 April 1999 when it was adjourned to enable further investigations to be made about the applicant’s first ground of appeal: he alleged that approximately 100,000 pounds sterling (GBP) had been spent by the prosecution or the police in providing a new identity to KC and that that information had not been disclosed during the trial. The allegation had been included in a newspaper article published the day after the applicant had been sentenced and he submitted that this constituted evidence relevant to the credibility of KC which should have been disclosed. The Court of Appeal considered ex parte a public interest immunity application of the prosecution on this matter. The prosecution was represented by counsel, but the applicant and his representatives were excluded from the hearing. The applicant’s solicitor’s notes of the decision of the Court of Appeal, it appears of December 1999, record as follows: “We have considered ex parte application on part of Crown [regarding the evidence] given by [KC]. [We have] read letter 3.11.99 from West Yorkshire police and [heard] evidence of 2 policemen, one of very senior rank. We are satisfied that when [KC] came to give evidence in the trial of [PM and the applicant], he had no expectation of reward. Consequently his evidence was not tainted in that regard. [We are] also satisfied having considered letter of 21.4.99 [regarding the] newspaper reports and read [the] newspaper, ... that there is no substance in that account. Arrangements were made long after conviction in February.” The applicant did not therefore pursue this ground of appeal and the Court of Appeal proceeded to hear the remaining grounds of appeal in the leave application. The second ground of appeal concerned three items of information which had not been disclosed by the prosecution prior to or during the trial and which had come into the applicant’s possession thereafter. He considered the information highly relevant to the reliability Ms A’s evidence and that it should have been disclosed at trial. The three items were as follows: (a) A pro-forma information sheet attached to the E-Fit image of one of the men Ms A said she had seen. The E-Fit image had been produced at trial but not the information sheet. The latter document read as follows: “From Cognitive Interview. Witness only able to give 60% mark. Treat image with CAUTION – the E-Fit [image] is the best the witness could produce being very vague on facial features – only really saw from a distance.” The Court of Appeal described the relevant defence submissions as follows: “There is considerable uncertainty concerning the E-Fit pro-forma [information sheet]. It is far from clear that this document was served on the defence. It is true that there is a reference in the 9th schedule of the unused material dated 29th January 1998 to a “force intelligence report” although on its face the schedule does not specify that this is a separate document in addition to the E-Fit. For the purposes of this application we are prepared to accept that this document did not find its way into the possession of leading counsel then appearing on behalf of this applicant. There is no record of service of this material on the file of the applicant’s solicitor at trial. Moreover, we have little doubt that if the document had been in leading counsel’s possession he would have referred to it in cross-examination. The significance of this document is that it appears directly to contradict the evidence of [Ms A] that she observed the face of the man she later identified as [the applicant] at close quarters.” (b) A document called a CID7 was also made by the author of the E-Fit image. The Court of Appeal described the defence submissions on this document as follows: “There is some doubt as to whether the CPS received the document CID7 and this would explain why it was not served on the defence. It appears to be accepted therefore that there was non-disclosure of this document. The significance of this form [is] that the reference to the eyes of the suspect records a description of “oval light” and: “the witness somewhat vague on facial features and having only had a limited look at suspects faces”. In [Ms A’s] original statement of 16th October there was no reference to the colour of the suspects eyes. In her statement of 20th November she made specific reference for the first time [to] “piercing blue eyes”. This description proved to be of considerable importance in the prosecution’s case, because of the reference in [the surviving brother’s] statement to the “very piercing blue eyes” of one of his attackers on the earlier occasion in June [1996]. [Defence counsel] submits that no reference was made in cross examination of [Ms A] to the fact that it was only in her later statement that the blue eyes description first emerged. However, he contends, without any material to show that she had previously been asked to describe the eyes, the defence ran the risk of underlining a damaging feature of the case against the applicant. The fact disclosed in the CID7 that, when first asked about the eyes she made no mention of the supposedly striking feature, throws substantial doubt on this important aspect of her evidence. Had it been explored in cross examination at trial it could have formed the basis for a suggestion that she had heard of the reference to blue eyes from another source.” (c) Documents relating to an identity parade on 10 November 1996. The applicant had discovered after the trial that Ms A had identified a decoy during the first parade on 10 November 1996. The Court of Appeal described the relevant defence submission on this point as follows: “[Defence counsel] attaches even more significance to the non-disclosure of the [first] identity parade material. The CPS served some of the documentation in relation to the 10th November parade. In their bundle of material served at this hearing the Crown have included additional material from the 10th November parade. From this it appears that from that parade [Ms A] wrongly identified one of the “decoys”. The material part reveals: “Q: Is the person you saw on Sunday 13 October 1996 on the parade? Note reply A: Yes Number 3. (i)Q: Was J. Foley identified? A: No. [Defence counsel] points out that the first identification parades were referred to in evidence but the full significance of the [first] parade could not have been appreciated in the absence of the full documentary evidence. In cross examination, [Ms A] stated: “I didn’t think I had pulled anyone out”. It was then clarified that she was being asked the questions about the December [1996] parade. She then reaffirmed that she had not identified anyone. In the summing up the learned judge directed the jury that [Ms A’s] evidence was that she had not picked anyone out. It is difficult for this court to determine whether or not counsel at trial were aware of the identification of a decoy. However, we are satisfied that if defence counsel had been aware of this information it would have been of obvious importance. We are prepared to assume for the purposes of this application that this information was not imparted to the defence.” A photograph of the identification parade on 10 November 1996 was also disclosed to the Court of Appeal and the defence submitted that the man picked out by Ms A looked nothing like the applicant. In its judgment of 13 December 1999 the Court of Appeal found as follows as regards the failure to disclose these three classes of document concerning Mrs A’s evidence: “We consider it most unfortunate that these three classes of document were not revealed to the defence, or if they were then that they did not find their way into the possession of counsel. We are equally satisfied that if counsel had had access to this information it would have been deployed in cross examination. We doubt whether the manuscript endorsement on the E-Fit pro-forma would have materially dented [Ms A’s] credibility in the light of the evidence she gave as to the opportunity of observing the men over a distance of some 50–60 yards. This evidence was not inconsistent with her previous statements. Counsel would have had more success with endorsement on the CID7 of the description of the eyes as “oval light”. This may have caused [Ms A] to reflect upon her evidence and whether she wished to retract her testimony. We take a more serious view of the non-disclosure of the [first] identity parade material which clearly shows on its face that far from not identifying anybody [Ms A] made a positive identification of a decoy. This might well have cast considerable doubt on [Ms A’s] positive identification of [the applicant] on the 1st May 1997.” Even so, we do not consider that these irregularities, on their own, would be such as to render the convictions unsafe if leave to appeal were granted.” The Court of Appeal then rejected the remaining grounds of appeal which challenged the trial judge’s direction to the jury concerning separate verdicts against PM and the applicant, his alleged failure to warn the jury of the danger of concluding guilt from a rejection of the applicant’s defence, his direction concerning PM’s previous convictions and his direction as to whether the two men whom Ms A had seen were the two robbers. The appeal court also rejected the appellant’s challenge to the trial judge’s failure to discharge the jury following threats made to jurors by third parties. Finally, the Court of Appeal reviewed the case against the appellants as a whole in order to determine whether the matters complained of collectively rendered their convictions unsafe. It noted as follows: “We are satisfied that they do not and that there was evidence which, if the jury accepted it fully justified each of the convictions. Suffice it to say that the evidence of [KC] was corroborated in several respects. The relevant telephone conversation[s] with [KC] were all proved. [PM] admitted in interview that he had [visited another of KC’s targets]. A piece of paper was found at PM’s home upon which was written the name “Boris”. The [map] had [PM’s] fingerprints upon it [and] the addresses of the brothers and Boris were noted or ringed. Both defendants lied in interview about being with each other in [the applicant’s] car on the afternoon of 13 October. PM set up a false alibi in relation to the 13 October and involved his wife ... and sister-in-law .. in making false statements supporting his false alibi. The identification evidence of [Ms A] including her positive identification of [the applicant] on 1 May 1997. The finding of a boot print in blood which corresponded to a size 8 “Kicker” boot. [The applicant] had such a boot and wore it at about the material time. In evidence both defendants accepted that they had been together on 11 June 1996 and on 13 October 1996”. The Court of Appeal concluded therefore that, in light of the strength of the case against PM and the applicant, there was no realistic prospect of a successful appeal. Their applications for leave to appeal were rejected. The Court refers to the outline of the domestic law and practice concerning the prosecution’s duty of disclosure of material to the defence contained in Rowe and Davis v. the United Kingdom [GC], no. 28901/95, ECHR 2000-II. | 0 |
dev | 001-4998 | ENG | AUT | ADMISSIBILITY | 2,000 | SONNLEITNER v. AUSTRIA | 4 | Inadmissible | Nicolas Bratza | The applicant is an Austrian national, born in 1939 and living in Köflach. She is represented before the Court by Mr Peter Bartl, a lawyer practising in Graz. A. On 12 and 13 December 1989 criminal proceedings were opened against the applicant and her husband, H.S., respectively, on suspicion of their having brought into circulation large amounts of narcotic drugs (Inverkehrsetzen grosser Mengen Suchtgift). On 13 August 1990 the investigating judge discontinued the proceedings against the applicant. He noted that the applicant had denied being involved in any criminal act. As H.S. had availed himself of the right not to give evidence against his wife (Zeugenentschlagungsrecht), it was unlikely that the applicant’s defence would be disproved. On 6 March 1991 the Munich Regional Court convicted H.S. amongst others of the above charges. In its reasoning, the court, referring to statements made by H.S., noted several times that the applicant had contributed to the commission of the offence at issue. Having regard to the above judgment, the Graz Public Prosecutor’s Office (Staatsanwaltschaft) requested the re-opening of the proceedings against the applicant on 8 January 1992. The Public Prosecutor’s Office noted that H.S. had previously availed himself of the right not to give evidence against his wife. His statements in the proceedings before the Munich Regional Court therefore constituted new evidence. On 11 March 1992 the Review Chamber (Ratskammer) of the Graz Regional Criminal Court (Landesgericht für Strafsachen) granted the re-opening request. On 24 July 1992 the applicant was arrested. Subsequently, the investigating judge ordered her detention on remand, finding that there was a suspicion of her having committed the above offence, as well as a danger of absconding. On 6 August 1992 she was released on bail. On 29 October 1992 the Graz Court of Appeal (Oberlandesgericht) quashed the order to re-open the proceedings and referred the case back to the Graz Regional Criminal Court. It found that the latter should have carried out further investigations into the precise contents of H.S.’s statements before the Munich Regional Court. On 16 February 1994 the Review Chamber of the Graz Regional Court again decided to re-open the proceedings. The applicant’s appeal against this decision was dismissed by the Graz Court of Appeal on 13 April 1994. She was finally acquitted on 31 August 1995. On 12 September 1995 the applicant filed an action claiming compensation for unlawful detention under section 2 § 1 (a) of the Compensation (Criminal Proceedings) Act 1969 (Strafrechtliches Entschädigungsgesetz). She argued that her detention between 24 July 1992 and 6 August 1992 had been unlawful as she had been arrested before the order to re-open the criminal proceedings had become final. On 19 December 1995 the Graz Court of Appeal granted the applicant’s action, finding that she was entitled to compensation. It held that, as a general rule, arrest and detention of a suspect could lawfully be ordered even before the re-opening order became final as the appeal against it had no suspensive effect. The investigating judge was bound by the order to reopen the proceedings. Furthermore, the Court of Appeal noted that, at the time the applicant’s detention was ordered, there was a reasonable suspicion against her as H.S. had incriminated her in the proceedings before the Munich Regional Court. Having regard to the sentence she risked incurring, namely one to fifteen years’ imprisonment, and to the fact that she was unemployed at that time and not well integrated in society, the court also found that at that time a danger of absconding had properly been assumed by the investigating judge. However, it followed from the decision of 29 October 1992 that the order to re-open the proceedings had been premature and therefore unlawful. The court accordingly concluded that the applicant’s detention, being based on that defective order, had likewise been unlawful. On 18 April 1996 the Supreme Court (Oberster Gerichtshof) allowed the appeal of the Public Prosecutor’s Office and dismissed the applicant’s action. It noted that the order to re-open proceedings which had been discontinued meant that they were resumed at the stage of the preliminary investigation. The re-opening order served as a legal basis for the continuation of the proceedings and also for the suspect’s arrest and detention, even before it became final, as the appeal against it did not have suspensive effect. The investigating judge was bound by that order and had no competence to review its lawfulness. The fact that, in the present case, the order had later been quashed by the appellate court did not retrospectively render unlawful the applicant’s detention, which had duly been based on a reasonable suspicion and the danger of absconding. The decision was served on 22 May 1996. B. Relevant domestic law The relevant provisions of the Code of Criminal Procedure (Strafprozessordnung), in the version in force in 1992, provided as follows: According to section 352, the Review Chamber of the competent criminal court could, upon the Public Prosecutor’s request, re-open proceedings against a specific suspect which had been discontinued, if criminal liability for the offence had not become statute-barred and new evidence was adduced which appeared likely to lead to the suspect’s conviction (paragraph 1). An appeal against the Review Chamber’s decision could be lodged with the Court of Appeal (paragraph 2). As section 352 was silent on the question whether or not such an appeal had suspensive effect, the general rule laid down in section 114 § 2 applied, namely that an appeal against the decision of the Review Chamber had no suspensive effect. | 0 |
dev | 001-103003 | ENG | MDA | CHAMBER | 2,011 | CASE OF LIPENCOV v. MOLDOVA | 3 | Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5-1;Non-pecuniary damage - award | David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza;Vincent A. De Gaetano | 5. The first applicant was born in 1987, and is the son of the second applicant, who was born in 1966. They live in Chişinău. The first applicant was 17 years old at the time of the events giving rise to the present application. According to the second applicant, he has an intellectual impairment and has been medically supervised by a psychiatrist since childhood. In view of his condition, he received his schooling at home. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. According to police records, the first applicant was arrested by police officers at 10 a.m. on 24 October 2004 after they were called to a private apartment building where the applicant had already been apprehended by some of the residents. 8. According to the applicants, he had been taken to the building forcibly by two persons of his acquaintance who had accosted him in the street some hours earlier and assaulted him. Their intention had been to push him from the roof of the building, but their presence had been detected by three of the residents. Believing that there was a robbery in progress, these men seized the first applicant and beat him. He had already sustained some injuries when the police arrived. The applicants maintained that he received a further beating from the police. 9. According to the Government, at the time of his arrest the first applicant was already under police suspicion of having committed a number of thefts. An ordinance had been issued against him charging him under Article 186(2) of the Criminal Code. As he had failed to present himself to the police to be informed of the charge, an ordinance to search for him was issued by a prosecutor on 22 October 2004. On the morning of 24 October the first applicant was caught in the act of theft inside an apartment building. As for his injuries, the Government speculated that these could have been caused by the persons who apprehended him, or may have been self-inflicted when the applicant had tried to conceal himself in a ventilation duct. 10. The applicants alleged that following his arrival at Ciocana police station, the first applicant was punched by police officers and beaten with rubber truncheons in an attempt to make him confess to a number of thefts. He was repeatedly sworn at and refused food, drink and access to the toilet. No medical treatment was provided for his injuries. 11. The second applicant stated that she came to the police station that same day to visit him and to give him food and clothes, but was not permitted to see him. The applicants maintained that the following day, 25 October, the first applicant was taken by the police to a marketplace for certain procedural acts. No lawyer was present. The applicant's other son witnessed this, and noted his brother's visible injuries. That afternoon, between 3 p.m. and 5.30 p.m., the first applicant was questioned by police officers in the presence of a lawyer as well as of the second applicant. During the interrogation, the first applicant complained of pain in his head and of strong nausea. It appeared to the second applicant that he had been badly beaten, and he was hungry. Despite his complaints, he was required to answer the questions put to him and was refused access to the toilet. After the interrogation he was returned to his cell, having received no medical assistance. 12. On the morning of 27 October 2004, the second applicant returned to the police station, expecting that her son would be released by 10 a.m., which marked the end of the 72-hour period during which he could be detained without a court order. She was denied access to the building. The first applicant was again taken to the marketplace for undisclosed purposes. He was brought back at 3.20 p.m. The second applicant, assisted by three lawyers from the Helsinki Committee for Human Rights in Moldova, requested the first applicant's release, which was initially refused. According to police records, he was eventually released at 4.30 p.m. that day. 13. The day after his release, the first applicant underwent a medical examination. This recorded a bruise covered with a red-brown crust measuring 2x1 centimetres on the right side of his head, and an adjacent one measuring 3x2 centimetres. A similar bruise measuring 2x0.7 centimetres was found in his right parietal region. Multiple oval bruises were found on his right, central and left lumbar region, covered by a brown crust and each measuring 7x0.8 centimetres. The doctor noted the first applicant's explanation of what happened to him (see paragraphs 8 and 10 above) and concluded that this was consistent with the injuries recorded. The applicant attended a hospital for treatment for eight days. 14. The second applicant made several written complaints to the authorities regarding the events set out above. On 26 October 2004 she complained to the Prosecutor General's Office and to the investigating judge of the ill-treatment of her son by the police. She referred to his intellectual disability and to the fact that he was a minor. On 5 November 2004 she lodged a complaint with the investigating judge and described the events of 27 October 2004. She referred, inter alia, to Articles 165 (1) and 166 (4) of the Code of Criminal Procedure (see below) and asked that those responsible for abusing her son be punished. On 9 November 2004 the second applicant complained to the Prosecutor General's Office that her apartment had been searched the previous day by the police, who had refused to identify themselves or show a search warrant. She requested that those responsible be identified and punished. 15. All of these complaints were investigated by prosecutor S. of the Ciocana prosecutor's office. He interviewed the applicants, other family members, the lawyer who attended the interrogation on 25 October, the applicants' neighbours, and the police officers involved. By a letter of 13 December 2004 the prosecutor informed the second applicant that he had decided not to initiate a criminal investigation since there was no evidence that the police had committed a crime. He added that “in view of the irregularities that have been allowed, a note was sent to the Ciocana police station”. 16. On 28 December 2004 the second applicant challenged the prosecutor's decision before the investigating judge. In her complaint, she ; that she had been refused access to him; that he had been detained for more than 72 hours contrary to the law; and that an unlawful search had taken place at the applicants' apartment on 8 November 2004. She criticised the prosecutor's answer as very general. Although he mentioned that the police had committed “certain irregularities”, he had not explained what these were and had not provided a copy of the note sent to the Ciocana police station. Moreover, the prosecutor had not sent a reasoned decision, as required by law. The complaint referred to both the substantive and procedural obligations of the authorities under the Convention in respect of the first applicant's ill-treatment and the obligation to respect the inviolability of their home. 17. On 6 January 2005 the investigating judge of the Ciocana District Court rejected the complaint as unfounded. He found that the first applicant had been accused of a number of thefts and that all the investigative acts had been carried out within the framework of lawfully conducted criminal proceedings. Since the first applicant had failed to appear before the investigator after several summonses had been sent to him, it had been necessary to be compel his attendance at the police station. All procedural acts that had required authorisation had been properly authorised. Moreover, the prosecutor had fully and objectively verified the complaints concerning ill-treatment and had found no confirmation of the allegations. 18. That decision was final. It was sent to the second applicant on 21 January 2005 and reached her on 27 January 2005. 19. The relevant domestic law has been set out in Mancevschi v. Moldova (no. 33066/04, § 26, 7 October 2008). 20. In addition, the relevant provisions of the Code of Criminal Procedure read as follows at the material time: “1. Short-time arrest is the deprivation of liberty for a short period, but not exceeding 72 hours, in accordance with the law. ...” ... 4. Detention of a person in accordance with the present Article cannot exceed 72 hours from the moment when the deprivation of liberty started.” 21. The European Committee for the Prevention of Torture has visited Moldova several times, and has inspected Ciocana police station. The following extract, taken from the report of the visit of 27-31 July 2009, is relevant to the present case: “29. The right of persons in police custody to have access to a doctor (including to one of their own choice), is still not expressly guaranteed by law. In the report on the 2007 visit, the CPT considered that the form of words in Section 64, paragraph 2, sub-paragraph 15 of the CCP (i.e. the right “to submit requests, including for independent medical assistance”) fell short of meeting the Committee's long-standing recommendation in this respect. Many persons who were in police custody in the context of the April 2009 events complained that, despite repeated requests for independent medical assistance, they had been refused such assistance. In some cases, police staff allegedly denied access to a doctor in order to obtain a confession or other statement from the injured detained persons concerned. Further, it appeared in a few cases of persons who had presented visible injuries that medical care had not been provided to them on the grounds that they had not specifically requested it. Such situations not only deprive detained persons of a safeguard which can play a significant role in the prevention of ill-treatment, but it may also have serious repercussions on the health of persons in police custody. Clearly, access to an independent doctor should not be left to the discretion of police officers.” | 1 |
dev | 001-126914 | ENG | UKR | CHAMBER | 2,013 | CASE OF POZHYVOTKO v. UKRAINE | 4 | Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect) | Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger | 5. The applicants live in Nosivka, Chernihiv Region. The first applicant is Mr Volodymr Pozhyvotko’s widow and the second applicant is his mother. 6. In the evening of 12 October 2004 Mr Volodymyr Pozhvotko was shot dead in a local bar. 7. On the same date the Nosivskyy District Prosecutor’s Office opened an investigation in connection with the death. 8. During the night of 12-13 October 2004 an investigator from the prosecutor’s office, together with other law-enforcement officers, experts and witnesses, carried out an on-site examination, including photographing and videotaping of the crime scene. Certain material evidence was seized, including two pistols, cartridges, bullets and other items. The victim’s body was sent for a forensic medical examination. 9. In the subsequent period the investigative authorities ordered forensic examinations of the seized evidence, questioned a number of witnesses and conducted searches in order to find additional evidence. 10. On 18 October 2004 the first applicant was admitted to the proceedings as an aggrieved party. 11. On 9 November 2004 the investigator charged T. with murder and put him on the list of wanted persons. 12. On 7 February 2005 L. voluntarily confessed to shooting the victim dead. On the same day L. was arrested. The decisions concerning T. were revoked. 13. On 16 February 2005 L. was released on the grounds that there was insufficient evidence to charge him with the crime. 14. On the same day the second applicant was granted the status of aggrieved party in the criminal proceedings. 15. By letter of 1 August 2005 the second applicant was informed that the case had been referred to the Chernihiv Regional Prosecutor’s Office for “a more qualified investigation”. 16. In its letter of 23 October 2005 the General Prosecutor’s Office informed the second applicant that the investigation had been delayed. They further noted that the Chernihiv Regional Prosecutor’s Office had been instructed to take comprehensive measures in the case. As regards her request for referral of the case to a different prosecutor’s office, she was informed that it would not be appropriate to do so. 17. On 1 November 2005 the investigator in charge of the case stated in writing that the video recording and photographs of the crime scene made on 12 October 2004 could not be found. 18. On 28 December 2005 the investigation was closed on the grounds that L. had acted in the state of necessary defence and the involvement of other individuals in the crime could not be established. 19. On 29 December 2005 the deputy prosecutor of the Chernihiv Region quashed that decision, noting that the dactylographic examination had not been completed and a number of witnesses had not been questioned. 20. On 20 March 2006, following the additional investigation, the case was closed once again on the grounds that L. had acted in the state of necessary defence, while the involvement of other individuals in the crime could not be established. 21. On 5 June 2006 the Novozavodskyy District Court of Chernihiv quashed that decision, finding that the investigation had not been comprehensive. It noted that there had been a significant number of investigative measures at the initial stage of the proceedings, including an on-site examination and forensic expert examinations, which had been carried out unprofessionally and in breach of procedural rules, and that the video recording and photographs of the crime scene could not be found. The court remitted the case for additional investigation, specifying, inter alia, that it was necessary to investigate the personality of the victim in more detail, establish the precise time of the crime, take measures to find the missing video recording and photographs, question witnesses, and conduct, if appropriate, additional expert examinations. 22. Following that decision, the investigation was renewed and conducted by the Chernihiv Regional Prosecutor’s Office. 23. In his letter of 24 May 2007 the Deputy Prosecutor of the Chernihiv Region informed the second applicant that the video recording of the crime scene had been found and a range of additional investigative measures had been undertaken. He indicated that the investigator of the Nosivskyy District Prosecutor’s Office should have been sanctioned for the inadequate investigation of the case, but he had been dismissed. 24. In August 2007 the case was referred to the Chernihiv Regional Police Department and in November 2008 it was referred to the Sumy Regional Police Department for further investigative measures. 25. On 12 November 2009 the police investigator terminated the proceedings on the grounds that L. had acted in the state of necessary defence. The applicants appealed against that decision. 26. On 15 November 2010 the Zarichnyy District Court of Sumy quashed that decision as unfounded and ordered further investigative measures. 27. In December 2010 and January 2011 the Sumy Regional Prosecutor’s Office gave instructions to the police investigator as to the further investigations to be carried out. Those instructions included, among other things, an additional examination of the crime scene, questioning of witnesses, a reconstruction of the crime, confrontations between witnesses, and additional expert examinations. 28. As of 25 April 2012 the proceedings were pending. 29. The applicants also instituted two sets of civil proceedings against the law-enforcement authorities, claiming that they had failed to investigate the case properly and had breached procedures during the investigation. The claims in the first set of proceedings were rejected. The applicants did not inform the Court of the outcome of the second set of proceedings. 30. The applicants also requested that an investigation be opened concerning the disappearance of the harvest of sunflower seeds which had allegedly belonged to Mr V. Pozhyvotko and had been entrusted to his business colleagues. The authorities refused to open an investigation, after finding that the matter was of a civil-law nature and that there was no evidence that Mr V. Pozhyvotko had ever owned the harvest in question. 31. The relevant domestic law can be found in the judgment of Muravskaya v. Ukraine (no. 249/03, §§ 35 and 36, 13 November 2008). | 1 |
dev | 001-58337 | ENG | ROU | GRANDCHAMBER | 1,999 | CASE OF BRUMARESCU v. ROMANIA | 1 | Violation of Art. 6-1 by reason of lack of fair hearing;Violation of Art. 6-1 by reason of refusal of right of access to court;Violation of P1-1;Just satisfaction reserved | L. Mihai;Luzius Wildhaber;Nicolas Bratza | 11. In 1930 the applicant’s parents had a house built in Bucharest. From 1939 onwards they let the ground floor to the Mirescu brothers, the uncles of the third party intervening in the case, Mr Mircea Dan Mirescu. 12. In 1950 the State took possession of the applicant’s parents’ house in Bucharest, allegedly under Decree no. 92/1950 on nationalisation. The applicant’s parents were never informed of the grounds or legal basis for that deprivation of property. They were, however, allowed to continue to live in one of the flats in the house as tenants of the State. 13. In 1973, pursuant to Law no. 4/1973, the State sold the Mirescu brothers the flat which they had hitherto occupied as tenants. The intervener, Mr Mircea Dan Mirescu, and his sister, A.M.M., inherited the flat in 1988. After his sister’s death in 1997 the intervener was left as the sole successor in title to the flat. 14. In 1993 the applicant, as the beneficiary of his parents’ estate, brought an action in the Bucharest Court of First Instance (“the Court of First Instance”) seeking a declaration that the nationalisation was null and void on the ground that Decree no. 92/1950 provided that the property of employees could not be nationalised and his parents had been employed at the time of the nationalisation of their house. It is not clear from the documents before the Court whether the applicant informed the Court of First Instance of the sale by the State to the Mirescu brothers in 1973. 15. In a judgment of 9 December 1993 the Court of First Instance held that the nationalisation of the applicant’s parents’ house under Decree no. 92/1950 had been a mistake, as his parents had belonged to a category of persons whose property the decree exempted from nationalisation. The court went on to hold that the State had obtained possession by duress and so could not rely on prescription to establish title. It also ruled that the State could not have acquired title to the house under Decree no. 218/1960 or Decree no. 712/1966 since those instruments had been contrary to the Constitutions of 1952 and 1965 respectively. The court therefore ordered the administrative authorities – namely the mayor of Bucharest and a State-owned company, C., which managed State-owned housing – to return the house to the applicant. 16. No appeal was lodged and the judgment became final and irreversible since it could no longer be challenged by way of an ordinary appeal. 17. On 31 March 1994 the mayor of Bucharest ordered the house to be returned to the applicant and on 27 May 1994 the C. company complied. 18. As of that date the applicant ceased to pay rent on the flat he was occupying in the house. 19. The applicant began paying land tax on the house on 14 April 1994 and continued doing so until a date in 1996 (see paragraph 25 below). 20. On an unknown date the Procurator-General of Romania, acting at the instance of Mr Mircea Dan Mirescu, lodged an application (recurs în anulare) with the Supreme Court of Justice to have the judgment of 9 December 1993 quashed on the grounds that the Court of First Instance had exceeded its jurisdiction in examining the lawfulness of the application of Decree no. 92/1950. 21. The hearing before the Supreme Court of Justice was set down for 22 February 1995. Mr Mircea Dan Mirescu was not invited to take part in the proceedings. On the day of the hearing, the applicant requested an adjournment as his lawyer was absent through illness. 22. The Supreme Court of Justice refused that request and proceeded to hear oral argument, after which it reserved judgment until 1 March 1995, the applicant being ordered to file written submissions before that date. 23. In those submissions, the applicant requested the Supreme Court of Justice to dismiss the Procurator-General’s application. He argued, first, that Decree no. 92/1950 had been incompatible with the 1948 Constitution, both in that it had been published only in part and in that it had breached the principle that no expropriation should be effected save in the public interest and after payment of fair compensation. Secondly, he submitted that, since his parents had been employees at the time of the nationalisation, the decision to nationalise their house had contravened the terms of the decree, which provided that dwellings belonging to employees could not be nationalised. Lastly, the applicant relied on Article 21 of the Romanian Constitution of 1991, which guarantees unrestricted access to the courts. 24. On 1 March 1995 the Supreme Court of Justice quashed the judgment of 9 December 1993 and dismissed the applicant’s claim. It held that property could be acquired by way of legislation, noted that the State had taken the house on the very day on which Decree no. 92/1950 on nationalisation had come into force and reiterated that the manner in which that decree had been applied could not be reviewed by the courts. Accordingly, the Bucharest Court of First Instance could not have found that the applicant was the rightful owner of the house without distorting the provisions of the decree, thus exceeding its powers and encroaching on those of the legislature. The Supreme Court of Justice confirmed that former owners were entitled to bring actions for recovery of possession but held that the applicant in the case before it had not established his title, whereas the State had demonstrated title under the nationalisation decree. In any event, provision as to redress for any wrongful seizure of property by the State would have to be made in new legislation. 25. Thereupon, the tax authorities informed the applicant that the house would be reclassified as State property with effect from 2 April 1996. 26. On an unspecified date the applicant lodged an application for restitution with the administrative board established to deal with applications lodged in Bucharest pursuant to Law no. 112/1995 (“the Administrative Board”). He submitted that he had been dispossessed of his house in 1950 in breach of Decree no. 92/1950 on nationalisation; that the Bucharest Court of First Instance had held that that deprivation of property had been unlawful in a final judgment of 9 December 1993; and that he was therefore entitled to be reinstated as the owner of the whole house. 27. In a report drawn up in November 1997 the valuation board established under Law no. 112/1995 valued the applicant’s house at 274,621,286 Romanian lei (ROL), of which the flat occupied by the applicant accounted for ROL 98,221,701. 28. On 24 March 1998 the Administrative Board vested ownership of the flat rented by the applicant in him and awarded him financial compensation for the rest of the house. Having regard to section 12 of Law no. 112/1995, which put a ceiling on compensation, and to the ceiling applicable in November 1997 – ROL 225,718,800 – the Board awarded him ROL 147,497,099. 29. On 14 May 1998 the applicant challenged that decision in the Bucharest Court of First Instance, attacking the Board’s refusal to return the whole house to him and pointing out that no grounds for that refusal had been given. He argued that in his case, where there had been an unlawful deprivation of property, Law no. 112/1995 – which concerned lawful expropriations – did not apply. Accordingly, his only means of protecting his right of property was an action for recovery of possession. However, since he had already brought such an action, and since the Court of First Instance, in a final judgment of 9 December 1993, had held him to be the owner of the house, he believed himself to be debarred from bringing a fresh action for recovery of possession. Consequently, he sought a declaration that he was the owner of the whole house and stated that he was not seeking compensation under Law no. 112/1995. 30. That application was dismissed on 21 April 1999. The applicant appealed and the proceedings are currently pending in the Bucharest County Court. 31. Article 21 of the Romanian Constitution provides: “Everyone shall be entitled to apply to the courts for protection of his rights, freedoms or legitimate interests. The exercise of this right shall not be restricted by any statute. ...” 32. The relevant provisions of this Act read: “The Procurator-General may, of his own motion or on an application by the Minister of Justice, apply to the Supreme Court of Justice for any final judicial decision to be quashed on any of the following grounds: 1. that the court in question has exceeded its jurisdiction; 2. ...” “An application for a judicial decision to be quashed may be made at any time.” 33. Article 3301 was amended as follows: “Article 3302: An application under Article 330 § 1 for a judicial decision to be quashed may be made within six months of the date on which the judicial decision in question becomes final ...” 34. The relevant provisions of this decree read: “... in order to ensure the proper management of dwellings which wealthy capitalists and exploiters who possess a large number of properties have allowed to fall into dilapidation as a means of sabotage; [and] In order to deprive exploiters of an important means of exploitation; The immovable property appearing in the schedules ... annexed to and forming part of this decree shall be nationalised. The listed property comprises: 1. immovable property belonging to former industrialists, owners of large estates, bankers, owners of large trading enterprises and other representatives of the wealthy capitalist class; 2. immovable property belonging to real-estate exploiters ...” “The immovable property of workers, civil servants, small artisans, persons working in intellectual professions and retired persons shall be excluded from the scope of this decree and shall not be nationalised.” 35. The relevant provisions of this decree read: “Subject to its obligation to apply the criteria laid down ... in Article II [of Decree no. 92/1950], the Cabinet may amend the annexes [containing the schedule of immovable property to be nationalised] to [that] decree. The Cabinet may also decide not to apply the nationalisation provisions to any flat or [other] immovable property.” 36. In a number of cases the Civil Division of the Supreme Court of Justice upheld judgments of lower courts asserting their jurisdiction to deal with claims concerning immovable property that had been nationalised, including property nationalised under Decree no. 92/1950. In a judgment of 9 March 1993 (no. 518), for instance, it held, on the issue whether the courts had power to deal with cases concerning the application of Decree no. 92/1950: “... in ruling on the applicant’s claim for recovery of possession, and in allowing it, the courts, which have general jurisdiction under the law to determine civil disputes, merely applied the terms of the decree. To be more precise, they applied those of its provisions that forbid the nationalisation of certain immovable property and those which require such property to be returned in the event of an erroneous or improper application of the decree.” 37. On 2 February 1995 the full Supreme Court of Justice decided by a majority of twenty-five to twenty to depart from the Civil Division’s previous decisions, holding: “[T]he courts do not have jurisdiction to impugn Decree no. 92/1950 or to order that property nationalised under its provisions be returned ...; legislation alone can bring the nationalisations carried out under Decree no. 92/1950 into accord with the provisions of the present Constitution concerning the right of property ...” 38. On 28 September 1998 the full Supreme Court of Justice unanimously decided to depart from its ruling of 2 February 1995 that the courts did not have jurisdiction in matters concerning infringements of the right of property committed between 1944 and 1989. It held: “[T]he courts have jurisdiction to entertain any action concerning an alleged infringement of the right of property or other rights in rem where such an infringement occurred between 1944 and 1989.” 39. On 19 July 1995 the Constitutional Court ruled on the constitutionality of a bill to regulate the legal status of residential property which had passed into State ownership. As to whether the owners of immovable property which the State had vested in itself improperly or without legal authority could sue for return of their property or obtain compensation, it held: “... The situation is different in relation to dwellings which became State property through an unlawful administrative act or simply de facto – that is to say without any legal authority, the State’s ownership having no basis in law. In such cases the individual’s legal right to the property has never been extinguished, with the result that, since the State is not the owner, such property cannot be covered by a statute whose object is to regulate the legal status of dwellings which have passed into State ownership. In other words, ... the measures which the bill before us seeks to introduce are not applicable to dwellings not legally vested in the State. If the bill were to treat the State as owning immovable property which it had taken without legal authority, it would be conferring ownership on the State retrospectively, or else introducing a mechanism not envisaged by the 1991 Constitution for transforming individual ownership into State ownership, and that cannot be accepted. It follows that this Court must allow the objection that this part of the bill, in so far as it deals with immovable property taken without legal authority by the State or other artificial persons, is incompatible with the Constitution ... It is for Parliament to decide, when amending the bill, whether to make provision for persons who have been deprived of their dwellings by the State without legal authority, or for the successors in title of such persons, to be able to benefit from the Act if they choose not to embark on the slow, uncertain and costly course of bringing an action for recovery of possession ...” 40. The relevant provisions of this Act read: “Individuals who formerly owned residential property which passed lawfully into the ownership of the State or of another artificial person after 6 March 1945 and which was still in the possession of the State or another artificial person on 22 December 1989 shall be entitled to benefit, by way of reparation, from the measures in this Act. The provisions of this Act shall apply equally to the successors in title of such former owners, subject to existing statutory provisions.” “The persons referred to in section 1 shall be entitled to restitution in the form of the restoration to them of the ownership of flats in which they currently live as tenants or which are vacant. In respect of other flats, those persons shall receive compensation as provided in section 12 ...” “The amount of compensation to be awarded to former owners or their successors in title in respect of flats which have not been returned to them, or the sale price of such flats, as the case may be, shall be determined in accordance with Decree no. 93/1977, legislative Decree no. 61/1990 and Law no. 85/1992. The value of the appurtenant land shall be determined according to the criteria (Document 2665 of 28 February 1992) for identifying and valuing land held by State-owned commercial companies ... The values so determined shall be converted to present-day levels by means of multipliers which may not be lower than the rate of increase in the national average salary over the relevant period. Neither the total value of a flat which is returned nor the total amount of compensation due for a flat which is not returned and for the appurtenant land may exceed the cumulative total of the national average salary for each year over the period of twenty years expiring on the date on which the compensation is assessed. Where a flat whose value, calculated according to the rules laid down in the first paragraph of this section, exceeds the total referred to in the second paragraph is returned, pursuant to section 2, to its former owner, his heirs or living relatives to the second degree of consanguinity, those persons cannot be obliged to pay the difference. The amount of compensation due at present-day levels under the above provisions shall be calculated on the day of payment, on the basis of the national average salary for the last month of the previous quarter. For the purpose of implementing this Act, an extrabudgetary fund shall be established, on which the Ministry of Finance may draw and into which shall be paid: (a) the proceeds of the sale of non-returned flats, including payments in full, deposits, monthly instalments and interest (less commission of 1% of the value of each flat); and (b) the proceeds of government bonds issued for the purpose of financing the fund, as provided in Law no. 91/1993 on public borrowing. The above fund may be drawn on for the following purposes, in order of priority: (a) to pay the compensation due under the provisions of this Act to owners or their successors in title; (b) to redeem the bonds issued and cover the expenses entailed by their issue; and (c) to build housing to be allocated in the first instance to tenants in the situation referred to in section 5(3).” 41. On 23 January 1996 the government adopted decision no. 20/1996 implementing Law no. 112/1995. The decision provided that immovable property which had passed into State ownership under a legislative provision was to be regarded as property legally vested in the State. It also specified that Law no. 112/1995 did not apply to immovable property held by the State where its title was not based on any legislative provision. 42. On 18 February 1997 the government adopted decision no. 11/1997 to supplement decision no. 20/1996. Section 1(3) of decision no. 11/1997 provided that, in order for property to be defined as having been acquired by the State under Decree no. 92/1950, it had to have been acquired in accordance with Articles I §§ 1-5 and II of the decree and the person referred to in the lists drawn up under the decree as the owner of the property had to have been the true owner at the date of the nationalisation. 43. Following government decision no. 11 of 18 February 1997, former owners who had succeeded in obtaining final court judgments ordering their property to be returned, only to see those judgments quashed by the Supreme Court of Justice on an extraordinary application by the ProcuratorGeneral, brought fresh actions for recovery of possession. The plea of res judicata raised in those new actions was not treated in the same way by all courts, as appears from the following. “... the property sought to be recovered has already been the subject matter of proceedings between the same parties, resulting in judgment no. 212 of 12 January 1994 (now final and enforceable), in which this Court found for I.P. and declared him to be the owner of the property ... The Procurator-General applied for that judgment to be quashed and on 28 September 1995 the Supreme Court of Justice did quash it and substituted its own judgment dismissing I.P.’s claim ... ... in accordance with Article 1201 of the Civil Code, which provides that ‘the principle of res judicata applies where a fresh action concerning the same subject matter, based on the same cause of action, is commenced between the same parties acting in the same capacities’, this Court finds that there have already been proceedings between these same parties in respect of the same property and that those proceedings have been determined by the Supreme Court of Justice ... … that being so, this Court accepts the plea of res judicata and holds that it cannot entertain the plaintiff’s claim.” “... this Court finds that Decree no. 92/1950 was unlawfully applied to the building owned by the plaintiff ..., orders that it be returned to her and dismisses the plea of res judicata ...” 44. The relevant provisions of this Act read: “1. Property acquired by the State between 6 March 1945 and 22 December 1989, provided that it passed into State ownership lawfully, that is to say in a manner not contrary to the Constitution, to international treaties to which Romania was a party or to any legislation in force at the time at which it passed into State ownership, shall likewise form part of the public or private property of the State or other public authorities. 2. Save where it is governed by special reparation laws, property held by the State without valid legal authority, including property acquired by way of a transaction voidable for lack of true consent, may be claimed by former owners or their successors in title. 3. The courts have jurisdiction to determine whether or not the legal authority is valid.” | 1 |
dev | 001-75858 | ENG | GRC | CHAMBER | 2,006 | CASE OF LYKOUREZOS v. GREECE | 1 | Violation of P1-3;Not necessary to examine Art. 8;Pecuniary damage - financial award;Costs and expenses partial award - Convention and domestic proceedings | Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens | 9. The applicant has been a member of the Athens Bar since 1960. He stood in the parliamentary elections of 9 April 2000 in the first constituency of Athens as a candidate on the Nea Dimorkatia party’s list. He obtained 44,387 votes and was elected as a member of parliament for a four-year term by decision no. 799/2000 of the Athens Court of First Instance. 10. On 18 February 2003 Mrs Apostolou, a voter in that constituency, lodged a complaint against the applicant with the Special Supreme Court, the judicial body which, under Articles 58 and 100 of the Constitution, had jurisdiction, inter alia, to remove a member of parliament from office in the event of disqualification. Mrs Apostolou referred, in particular, to the incompatibility between the office of a member of parliament and the fact that the applicant was practising as a lawyer. This incompatibility had been enshrined in the Constitution for the first time on the occasion of a constitutional revision in 2001. The new Article 57 of the Constitution now states that the duties of a member of parliament are incompatible with all professional activity, although it does provide for the introduction of exceptions through legislation. However, the implementing legislation was never enacted, since, according to information submitted by the applicant, the Chamber of Deputies voted against the draft law in February 2003. Article 115 § 7 of the revised Constitution indicated that the rule on disqualification in question would come into force once the implementing legislation provided for in Article 57 had been enacted and, at the latest, on 1 January 2003 (see paragraph 16 below). 11. The hearing before the Special Supreme Court was held on 7 May 2003. Before that court, the applicant alleged, inter alia, that there had been a violation of Article 3 of Protocol No. 1 and argued that, until such time as the implementing legislation provided for in Article 57 of the Constitution had been enacted, the disqualification could not be applied. He also claimed that the disqualification could not be applied to members of parliament who had been elected prior to the revision of the Constitution. Submitting several documents in evidence, he added that he had ceased receiving fees as of 1 January 2003 and that he was carrying out his activities free of charge, with the result that he could not be deemed to be practising a profession within the meaning of Article 57. 12. On 3 July 2003, by judgment no. 11/2003, the Special Supreme Court allowed Mrs Apostolou’s complaint and ruled that the applicant had forfeited his seat. In particular, the court dismissed the applicant’s argument that he could not be deemed to be practising his profession because he had not received fees for his services since the rule on disqualification had come into force. However, three members of the court considered that “the concept of practising a profession is very closely linked to receipt of an income, particularly through a systematic and long-term activity carried out for the purpose of ensuring [the individual’s] livelihood”. With regard to the other arguments raised by the applicant, the Special Supreme Court found as follows: “... [A]s is clear from Articles 115 § 7 and 57 § 1, paragraph 3, of the Constitution, the constituent body, in adopting the rule whereby the duties of a member of parliament are incompatible with the exercise of any profession, did so not only with a view to ensuring the independence of members of parliament, but also to ensure that the latter are able to carry out their duties in the best possible conditions and without distraction ... At the same time, the Constitution delegated to Parliament the power to introduce exceptions to the [general] rule of professional disqualification, in other words, the power to list those professional activities which would be compatible with the duties of a member of parliament ... In addition, [the same provisions state that] the rule establishing the incompatibility between the duties of a member of parliament and the practising of any profession was to come into force, at the latest, on 1 January 2003 ..., even if the law indicating the professional activities that are compatible with the duties of a member of parliament had not been enacted by that date ... The only consequence of the failure to enact this legislation ... is that the rule on disqualification for members of parliament is applicable, without exception, from 1 January 2003 ... Further, the argument put forward by the applicant in his submissions to the effect that the disqualification is not applicable to members of the current Chamber of Deputies, since this would be contrary to the constitutional principle of legitimate expectation, must be dismissed as unfounded, especially since a constitutional provision cannot be set aside on the ground that it is contrary to another provision or principle of the same Constitution. This follows from the formal equality of all provisions of the Constitution and the principles arising from them, which requires that each constitutional provision be applied in a binding manner with regard to the specific area which it governs ...” 13. In July 2003 the applicant was replaced as a member of the Chamber of Deputies by the first substitute on his party’s list for the first constituency of Athens. 14. At the time of the parliamentary elections of 9 April 2000 in which the applicant was a candidate, Article 57 § 1 of the Constitution was worded as follows: “The duties of a member of parliament are incompatible with the functions or position of a member of a board of directors, chairperson or director general or their deputies, or of an employee of a commercial firm or enterprise enjoying special privileges or public service concessions or receiving a regular State subsidy.” 15. The new Article 57 of the revised Constitution provides: “1. ... [paragraph 3] The duties of a member of parliament are also incompatible with the exercise of any profession. Activities compatible with parliamentary office, as well as matters relating to insurance and pension issues and to the manner in which members of parliament return to their profession at the end of their parliamentary term, shall be specified by law. ... [paragraph 4] Violation of the provisions of the present paragraph shall result in forfeiture of parliamentary office and shall render related contracts or other acts null and void, as specified by law. ...” 16. The transitional provision of Article 115 § 7 of the Constitution provides: “The incompatibility of parliamentary office with the exercise of any profession, provided for by the penultimate paragraph of Article 57 § 1, shall come into force upon promulgation of the law provided for in the same provision and on 1 January 2003 at the latest.” 17. In December 2005 the present government announced its intention to carry out a further revision of the Constitution. On 17 January 2006 Mr Karamanlis, the current Prime Minister, presented the broad outlines of the proposed revision to his party’s parliamentary group. He stated, inter alia: “recent experience shows that it is necessary to amend the constitutional provision on the professional disqualification of members of parliament; we propose lifting the absolute prohibition and replacing it with a partial prohibition.” 18. During the sittings of 13 and 20 January 1998 of the parliamentary committee responsible for preparing the revision of the Constitution, members of the opposition expressed their views as follows (extracts): Mr Souflias: “I suggest adding a provision to Article 57 which would read as follows: the duties of a member of parliament are incompatible with the exercise of any professional activity.” Mr Panagiotopoulos: “Constitutional provision: a member of parliament may not exercise any other profession.” Mr Varvitsiotis: “I believe that a member of parliament should not exercise any other professional activity during his or her term of office.” In its final report of 30 March 1998, the above-mentioned parliamentary committee proposed that Article 57 of the Constitution be amended, and expressed its opinion as follows: “It is proposed, by a large majority, to revise Article 57 in order to redefine the work, powers and activities which are incompatible with the duties of a member of parliament in order to take account of current information about the State’s role in the economy. Forfeiture of one’s parliamentary seat is also foreseen as a sanction for exceeding the limit set on election expenditure.” In its report of 23 October 2000, the parliamentary committee responsible for preparing the revision of the Constitution after the elections of 9 April 2000 made no mention of the introduction of an absolute professional disqualification. 19. At the sitting of 28 February 2001, Mr Yannopoulos, a member of the majority parliamentary party and a former Minister of Justice, spoke as follows (extract): “What type of Parliament do you want? Do you want to exclude scientists and well-known figures? ... This prohibition exists in no other country ... You will find yourselves in the dock at the European Court of Human Rights, since a legislative prohibition on being elected to Parliament on the ground of one’s profession amounts to a breach of every citizen’s personality rights ...” 20. At the sitting of 6 April 2001, Mr Pavlopoulos, a member of parliament, then spokesperson for the opposition and currently Minister of the Interior, stated (extract): “... The initial philosophy underlying the revision of this Article was that members of parliament could exercise professional activities with the exception of those prohibited by the Constitution; this is the logic of the decision [that we adopted within the revision committee]. Yet now, before a plenary sitting of the Chamber, you are putting forward a position that is the exact opposite of that ... All of a sudden, in the middle of the procedure, you are introducing an amendment which, in reality, completely overturns the content of the revision of Article 57 ... This is not a simple amendment, but a total reversal of the logic underlying the revision of Article 57.” 21. Several legislative systems make it incompatible to hold a seat in Parliament and simultaneously to hold senior office in the executive branch (Head of State, Prime Minister, Minister or Minister of State) or high office within the judiciary (president or member of a constitutional or supreme court, of an administrative court, of the Conseil d’Etat or of another specialised senior court, such as the Audit Court). This is the case, for example, in Austria (Articles 61, 92 § 2, 122 § 5, 134 § 4 of the Federal Constitutional Law), Belgium (Article 50 of the Constitution), Spain (Article 70 of the Constitution and section 6 of the 1985 implementing Law on the general electoral system), Estonia (section 7 of the Parliamentary Rules of Procedure Act), Finland (Article 27 of the Constitution), France (Chapter IV of the Electoral Code), Luxembourg (Article 54 of the Constitution), “the former Yugoslav Republic of Macedonia” (section 9 of the Status of Members of Parliament Act 2005), the Netherlands (Article 57 § 2 of the Constitution) and Portugal (section 5 of the Assembly of the Republic (Elections) Act and section 20(1) of the Status of Members of Parliament Act). In some countries, however, government ministers take part in parliamentary work (Spain, Poland, Romania). 22. Certain disqualifications from holding a parliamentary seat concern positions which could jeopardise parliamentarians’ independence as a result of hierarchical relations within the government. 23. In the majority of countries, disqualifications of this type concern judges and prosecutors, police officers and members of the armed forces, and all diplomatic and consular staff. This is the case, for instance, in Bosnia and Herzegovina (section 1(8) of the Elections Act), Spain (Constitution), France (Chapter IV of the Electoral Code), Ireland (section 41 of the 1992 Elections Act), Italy (sections 7, 8 and 9 of the Elections Act), Malta (Article 54 of the Constitution), the United Kingdom (section 1(1) of the 1975 House of Commons Disqualifications Act) and Slovakia (Article 77 of the Constitution). 24. In general, such disqualifications concern civil servants or contract workers employed in the State administration or in regional bodies, autonomous State entities or institutions such as the social security service, or in public companies. This is the case, for example, in Germany (section 8 of the Members of the Bundestag Act), Andorra (section 17 of the 1993 Electoral System and Referendums Act), Belgium (Disqualifications Act of 6 August 1931), Bulgaria (Article 68 of the Constitution), Spain (section 157 of the 1985 implementing Law), Estonia (Article 63 of the Constitution), Hungary (Article 9 of the Status of Members of Parliament Act 1990), Portugal (Article 157 of the Constitution), the Czech Republic (section 12(a) of the Conflict of Interests Act) and the Russian Federation (Article 97 of the Constitution). 25. In the majority of countries, individuals affected by those disqualifications must resign if they wish to stand for election (as in Bosnia and herzegovina). In other countries (such as Austria or Belgium) they may merely request to be suspended from their professional duties during their term of office. 26. As a general rule, the disqualifications in this category concern managers or heads of companies, corporations or public or private institutions which have interests in State activities or which receive State aid or grants. They may also concern the chairpersons, general managers or members of the boards of directors of private companies involved in public construction or in property or credit operations (among many other countries, Bulgaria, Spain, France and Italy have such rules). 27. In some countries, members of parliament may not practise any professional or commercial activity or paid employment during their terms of office, except in the educational sphere, and then only in very exceptional circumstances (Spain, Lithuania, Russia). 28. The majority of countries do not lay down, in their constitutional or ordinary legislation, an incompatibility with freely practising the profession of lawyer (for example, Andorra, Austria, the Czech Republic, Bosnia and Herzegovina, Estonia, Finland, Hungary, Ireland, Italy, the Netherlands, Poland, the United Kingdom, Serbia and Montenegro, the Slovak Republic, Sweden, Switzerland). 29. However, restrictions or conditions may be imposed on a member of parliament who practises as a lawyer, based on the requirements of independence, professional ethics and availability. Thus, despite the absence of a legislative prohibition in this regard, the German Federal Court of Justice stated in a judgment of 26 June 1978 that the timetable of Bundestag sittings enabled a member of parliament to practise as a lawyer, subject to the prohibitions concerning conflicts of interest set out in the Lawyers Act and the legal profession’s Code of Ethics. 30. This specific concept of conflict of interest exists in several countries’ legislative provisions. Thus, in France, Article 149 of the Electoral Code prohibits any lawyer registered with the Bar who is a member of parliament from carrying out, directly or indirectly through an associate or colleague (except before the Haute Cour de justice or the Court of Justice of the Republic), any professional act in criminal cases concerning certain crimes or offences against the State or the areas of finance or the press, or to plead in civil proceedings for companies which receive State grants, financial companies or companies which use savings, companies engaged in civil engineering, construction or property development, or against the State, State-owned companies, local authorities or public establishments. 31. Similar provisions exist in the legislation of other civil-law countries, such as Italy (section 10 of the Elections Act), Portugal (section 21 of the Statute of Members of the Assembly of the Republic), Romania (section 82 of the Exercise of Public Duties (Transparency Measures) Act (Law no. 161/2003), Title IV on members of parliament, as amended by the Status of Lawyers Act) and Turkey (section 3 of the Disqualifications of members of the Grand National Assembly Act 1984 (Law no. 3069)). 32. In the common-law countries, the codes of ethics of members of parliament guarantee parliamentarians’ independence vis-à-vis possible conflicts of interest by means of administrative and procedural measures. In the United Kingdom, members of parliament must declare any work or paid employment and have this declaration entered in the register of members’ interests. Failure to register an interest may result in sanctions (Code of Conduct for Members of Parliament and Guide to the Rules relating to the Conduct of Members of Parliament). Similar provisions exist in Ireland (sections 5, 6 and 7 of the Ethics in Public Office Act 1995) and in Malta (Article 5 of the 1995 Code of Ethics of Members of the House of Representatives). 33. Those procedures for declaring and registering the assets and financial interests of members of parliament have also been adopted in some countries of continental Europe. Thus, the Rules of the Italian Chamber of Deputies provide for a similar system to determine cases of incompatibility: within thirty days of the Chamber’s first sitting, each member must submit a declaration to the speaker concerning the functions occupied by him or her at the time of standing for election, and those commercial or professional activities which he or she continues to carry out. In Switzerland, members of parliament are also obliged to notify their financial interests and any other professional activity carried out by them when they take up their duties (section 11 of the 2002 Federal Assembly Act). 34. Other more practical limitations and restrictions have been added to those cited above, which are based on the concept of independence and conflict of interest. Various regulations on the status of members of parliament require that they give their parliamentary activities priority over any other private work, whether remunerated or not. In Finland, Parliament may, by a two-thirds majority, require that a member of parliament forfeit his or her seat, permanently or for a specific period, if the individual concerned neglects his or her duties in a significant and repeated manner. In practice, this obligation is reflected in a significant reduction in the time spent working in other professions, or withdrawal from them (as in Sweden). 35. In Spain, the requirement to carry out parliamentary duties on a full-time basis results in very restrictive rules on disqualification (section 157 of the 1985 implementing Law on the general electoral system); holding a parliamentary seat is incompatible with the direct or indirect exercise of any private or public profession or activity, remunerated by way of wages, salaries, dues, fees or other means (an exception is made for university lecturers). However, section 159(3) of the 1985 implementing Law permits interested parties to apply to the relevant chamber’s disqualification committee for leave to conduct private activities which do not concern public bodies or services, public companies, companies which are financed from public funds or credit or insurance companies. 36. Parliamentary committees exist in several countries. They may authorise professional activity, including in the public sector, which would otherwise be considered incompatible with the holding of a parliamentary seat (see section 6a(1) and (2) of the Austrian Disqualification Act). In certain cases, those activities must be carried out without remuneration. 37. A blanket prohibition on exercising any profession, trade or remunerated form of employment, similar to that laid down in the Greek or Spanish legislation, also exists in a more or less rigid form in other countries, especially those of central and eastern Europe, such as Lithuania (Article 6 of the Constitution), “the former Yugoslav Republic of Macedonia” (section 9 of the Status of Members of Parliament Act), the Russian Federation (Article 97 of the Constitution) and Moldova (Article 70 of the Constitution). As in Spain, however, exceptions exist for teaching, scientific research and creative activities. | 0 |
dev | 001-110807 | ENG | RUS | CHAMBER | 2,012 | CASE OF CHELIKIDI v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court) | Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen | 5. The applicant was born in 1956 and lives in Georgiyevsk. 6. On 17 September 2001 the applicant brought civil proceedings against the joint stock company “Nov” (акционерное общество “Новь”), subsequently known as the collective farm “Nov” (сельскохозяйственная артель “Новь”), seeking recovery of 100 tons of sunflower seeds under a supply agreement. 7. On 17 October 2001 the Georgiyevskiy Town Court granted the applicant’s claim. The defendant was absent from the hearing. 8. On 24 December 2001 the writ of execution was returned to the Georgiyevskiy Town Court as it had not been possible to enforce it. 9. On 13 March 2002, following a request by the defendant, the Georgiyevskiy Town Court quashed the judgment of 17 October 2001 and resumed the proceedings. 10. On 22 October 2002 the applicant modified her claims and asked the court to order the defendant to pay her 800,000 Russian roubles. 11. On 17 December 2002 the Georgiyevskiy Town Court granted the applicant’s claim. The judgment was not appealed against and became final. 12. The judgment could not be enforced because the defendant had insufficient funds. 13. On an unspecified date in June 2003 the applicant lodged a claim against the Ministry of Finance seeking compensation for damages incurred through the inappropriate administration of justice, notably the excessive length of proceedings in respect of her claims against the company. She argued that the courts had failed to observe the time-limits prescribed by the Russian Code of Civil Procedure, which had undermined the possibility of enforcement of the final judgment in her favour. 14. On 21 July 2003 the Basmannyj District Court of Moscow dismissed the applicant’s claim without consideration on the merits. Referring to Ruling no. 1-P, adopted by the Constitutional Court on 25 January 2001 (see paragraph 18 below), the District Court noted that current laws did not determine the grounds or procedure for adjudicating a claim for damages on account of failure by the courts to comply with statutory time-limits. In particular, the court noted as follows: “According to Article 1 of the Code of Civil Procedure of the Russian Federation, the rules of civil procedure in federal courts of general jurisdiction are determined by the Russian Constitution, the Judicial System Act, the Code of Civil Procedure and other federal laws. The law has not determined the territorial and subject-matter jurisdiction over civil claims for compensation for damage incurred in civil proceedings in cases where a dispute has not been heard on the merits as a consequence of unlawful acts (or failure to act) of a court (a judge), including breach of a reasonable-time guarantee. Pursuant to Article 134 § 1 (1) of the Code of Civil Procedure of the Russian Federation, the judge shall dismiss a statement of claim if the claim is subject to examination not in civil proceedings but in another judicial procedure.” 15. On 10 March 2004 the Moscow City Court upheld the decision of 21 July 2003 on appeal, finding as follows: “In dismissing the claim with reference to Ruling no. 1-P of 25 January 2001 of the Constitutional Court of the Russian Federation, the court came to the correct conclusion that its examination by a district court of general jurisdiction would only be possible if a federal law determined that the district court of general jurisdiction had territorial and subject-matter jurisdiction over such claims. At the present time, however, neither the Code of Civil Procedure of the Russian Federation nor any other federal law ... determines the territorial and subject-matter jurisdiction over claims concerning compensation for damage caused by judicial acts not touching upon the merits of the case.” 16. Article 1064 of the Civil Code contains general provisions on liability for the infliction of damage. It establishes that damage inflicted on the person or property of an individual must be reimbursed in full by the person who inflicted the damage (Article 1064 § 1). 17. Article 1070 of the Civil Code determines liability for damage caused by the unlawful actions of law-enforcement authorities or courts. In particular, it establishes that the federal or regional treasury shall be liable for damage sustained by an individual in the framework of the administration of justice provided that the judge’s guilt has been established by a final criminal conviction (Article 1070 § 2). 18. By 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 provided for special conditions in respect of State liability for damage caused in the framework of the administration of justice. It clarified, nevertheless, that the term “administration of justice” did not cover judicial proceedings in their entirety, but only extended 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 “administration of justice”. State liability for damage caused by such procedural acts or failures to act, such as a breach of the “reasonable length” requirement of court proceedings, could arise even in the absence of a final criminal conviction of a judge if the fault of the judge had been established in civil proceedings. The Constitutional Court emphasised, moreover, that the constitutional right to compensation by the State for damage should not be tied in with the personal fault of a judge. An individual should be able to obtain compensation for any damage incurred through a 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 and procedure for compensation by the State for damage caused by the unlawful acts or failure to act of a court or judge and determine territorial and subject-matter jurisdiction over such claims. 19. Article 134 § 1 (1) of the Russian Code of Civil Procedure provides that a civil claim must be dismissed by a judge, in particular, if it is amenable to examination not in civil proceedings but in another judicial procedure. | 1 |
dev | 001-97561 | ENG | RUS | CHAMBER | 2,010 | CASE OF TOLSTOBROV v. RUSSIA | 4 | No violation of Art. 6;No violation of P1-1 | Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | 4. The applicant was born in 1961 and lives in Arkhangelsk. 5. The applicant sued a private company for salary arrears. 6. By judgment of 16 March 2004, the Justice of Peace in the Varavino-Faktoriya Circuit awarded the applicant 92,073.93 Russian roubles (RUB) against the defendant company. 7. The defendant company appealed. 8. On 16 June 2004, both parties being present in the court-room, the Lomonosovskiy District Court of Arkhangelsk adjourned the hearing until 13 July 2004, which was noted in the minutes. The parties were also notified about the hearing of 13 July 2004 by post, in accordance with the domestic law. However, the court made a mistake in the defendant company's address, which never received the summons. 9. On 13 July 2004 the Lomonosovskiy District Court of Arkhangelsk, in the absence of the defendant company's representative, upheld the judgment on appeal. 10. The defendant company applied for supervisory review of the above judgments. On 21 September 2004 a judge in the Arkhangelsk Regional Court granted it leave for supervisory review. On 29 September 2004 the Presidium of the Regional Court set aside the judgment of 13 July 2004 and ordered a re-examination of the case by the District Court on the grounds that the defendant company had not been informed about the hearing of 13 July 2004. The Presidium found that though the defendant company's representative was present in the court-room when the district court adjourned the hearing to 13 July 2004, the defendant company could not be considered as duly informed about it. 11. On 26 January 2005 the District Court quashed the judgment of 16 March 2004 and awarded the applicant RUB 38,123.85. 12. The relevant domestic law governing the supervisory review procedure at the material time is summed up in the Court's judgment in the case of Kot v. Russia (no. 20887/03, § 17, 18 January 2007). 13. Under Article 113 of the Code of Civil Procedure of 2002, in force at the material time, parties to the proceedings are to be summoned to a hearing by a letter sent by registered mail with an acknowledgment of receipt, by court summons with an acknowledgment of receipt, by telegram, by phone or fax or by any other means which can guarantee a record of the fact that the summons was sent and was received by the party. | 0 |
dev | 001-67818 | ENG | DNK | GRANDCHAMBER | 2,004 | CASE OF PEDERSEN AND BAADSGAARD v. DENMARK | 1 | No violation of Art. 6-1;No violation of Art. 10 | Luzius Wildhaber;Nicolas Bratza;Paul Mahoney | 10. The applicants were two television journalists. At the relevant time they were employed by one of the two national television stations in Denmark, Danmarks Radio. They produced two television programmes which were broadcast at 8 p.m. on 17 September 1990 and 22 April 1991 respectively. It was estimated that approximately 30% of all viewers above the age of 12 saw the programmes. The programmes, described as documentaries, were called “Convicted of Murder” (Dømt for mord) and “The Blind Eye of the Police” (Politiets blinde øje) respectively and dealt with a murder trial in which on 12 November 1982 the High Court of Western Denmark (Vestre Landsret) had convicted a person, hereafter called X, of murdering his wife on 12 December 1981 between approximately 11.30 a.m. and 1 p.m. X was sentenced to twelve years’ imprisonment. On appeal, the Supreme Court (Højesteret) upheld the sentence in 1983. On 13 September 1990, following his release on probation, X requested the Special Court of Revision (Den Særlige Klageret) to reopen the case. The applicants had started to prepare the programmes in March 1989, establishing contact with witnesses through advertising in the local paper and via police reports. 11. Both programmes began with a statement of the premise on which they had been produced: “In this programme we shall provide evidence by way of a series of specific examples that there was no legal basis for X’s conviction and that, by imposing its sentence, the High Court of Western Denmark disregarded one of the fundamental tenets of the law in Denmark, namely that the accused should be given the benefit of the doubt. We shall show that a scandalously bad police investigation, in which the question of guilt was prejudged right from the start, and which ignored significant witnesses and concentrated on dubious ones, led to X being sentenced to twelve years’ imprisonment for the murder of his wife. This programme will show that X could not have committed the crime of which he was convicted on 12 November 1982”. 12. At an early stage in the first programme, “Convicted of Murder”, the following comment was made: “In the case against X, the police investigation involved about 900 people. More than 4,000 pages of reports were written – and thirty witnesses appeared before the High Court of Western Denmark. We will try to establish what actually happened on the day of the murder, 12 December 1981. We shall critically review the police investigations and evaluate the witnesses’ statements regarding the time of X’s wife’s disappearance.” When preparing this first programme, the applicants had invited the police of Frederikshavn district, who had been responsible for the investigation of the murder case, to take part. Having corresponded with the applicants on this subject for some time, the chief of police informed them by a letter of 19 April 1990 that the police could not participate in the programme as certain conditions for granting the interview, inter alia, that the questions be sent in writing in advance, had not been met. 13. Following the broadcast of the first programme on 17 September 1990, the applicants were charged with defamation on the ground that they had unlawfully connected the friend of X’s wife (“the schoolteacher”) with the death of two women referred to, one being X’s wife. The defamation case ended on 14 December 1993 before the High Court with a settlement according to which the applicants were to pay the schoolteacher 300,000 Danish kroner (DKK), apologise unreservedly, and give an undertaking never to broadcast the programme again. 14. The applicants alleged that the chief superintendent, in a telephone conversation with Mr Pedersen at some unknown time before the broadcast of the second programme, had declined to participate in the programme. 15. In the introduction to the second programme, the following comment was made: “It was the police of Frederikshavn district who were responsible at that time for the investigations which led to X’s conviction. Did the police assume right from the start that X was the killer, and did they therefore fail to investigate all the leads in the case, as required by the law? We have investigated whether there is substance in X’s serious allegations against the police of Frederikshavn district.” 16. A little later in the programme, the second applicant interviewed a taxi driver, who explained that she had been questioned by two police officers a few days after the disappearance of X’s wife, and that she had mentioned on that occasion two observations she had made on 12 December 1981: she had seen a Peugeot taxi (which was later shown to have no relevance to the murder), and before that she had seen X and his son at five or ten minutes past noon. She had driven behind them for about one kilometre. The reason she could remember the date and time so clearly was because she had to attend her grandmother’s funeral on that day at 1 p.m. 17. The following comment was then made: “Commentator: So in December 1981, shortly after X’s wife disappeared and X was in prison, the Frederikshavn police were in possession of the taxi driver’s statement, in which she reported that shortly after noon that Saturday she had driven behind X and his son for about a kilometre ... So X and his son were in Mølleparken [residential area] twice, and the police knew it in 1981.” 18. The interview went on: “Second applicant: What did the police officers say about the information you provided? Taxi driver: Well, one of them said that it couldn’t be true that X’s son was in the car, but in fact I am a hundred percent certain it was him, as I also know the son because I have driven him to the day-care centre. Second applicant: Why did he say that to you? Taxi driver: Well, he just said that it couldn’t be true that the son was there. Second applicant: That it couldn’t be true that you saw what you saw. Taxi driver: No, that is, he didn’t say that I hadn’t seen X, it just couldn’t be true that the son was with him. Second applicant: These were the two police officers who questioned the taxi driver in 1981 and who wrote the police report. We showed the taxi driver her statement of 1981, which she had never seen before. Taxi driver: It’s missing, the bit about – there was only ... about the Peugeot, there was nothing about the rest, unless you have another one. Second applicant: There is only this one. Taxi driver: But it obviously cannot have been important. Second applicant: What do you think about that? Taxi driver: Well it says, I don’t know, well I think when you make a statement, it should be written down in any case, otherwise I can’t see any point in it, and especially not in a murder case. Commentator: So the taxi driver claims that in 1981 she had already told two police officers that she had seen X and his son. Not a word of this is mentioned in this report. Second applicant: Why are you so sure that you told the police this at the time, which was 1981? Taxi driver: Well I am a hundred percent sure of it and also, my husband sat beside me in the living room as a witness so... , so that is why I am a hundred percent certain that I told them. Second applicant: And he was there throughout the entire interview? Taxi driver: Yes, he was. Second applicant: Not just part of the interview? Taxi driver: No, he was there all the time. Commentator: It was not until 1990, nine years later, that the taxi driver heard of the matter again, shortly after the ‘Convicted of Murder’ programme had been shown; even though the taxi driver’s report had been filed as a so-called 0 report, she was phoned by a chief inspector of the Flying Squad [Rejseholdet] who had been asked by the public prosecutor to do a few more interviews. Taxi driver: The chief inspector called me and asked whether I knew if any of my colleagues knew anything they had not reported, or whether I had happened to think of something, and I then told him on the phone what I said the first time about the Peugeot and that I had driven behind X and his son up to Ryets Street, and then he said that if he found anything out, or if... or if there was anything else, then... then he would get in touch with me again, which he didn’t, not until a while afterwards, when he called me and asked whether I would come for another interview. Second applicant: When you told the chief inspector in your telephone call that you followed X, and that his son was in the car, what did he say about that? Taxi driver: Well, he didn’t say anything. Second applicant: He did not say that you had never reported this? Taxi driver: No, he didn’t.” 19. The second applicant then conducted a short interview with X’s new counsel: “Second applicant: Have you any comment on the explanation the taxi driver has given now? X’s new counsel: I have no comment to make at this time. Second applicant: Why not? X’s new counsel: I have agreed with the public prosecutor, and the President of the Special Court of Revision, that statements to the press in this matter will in future only be issued by the Special Court of Revision. Commentator: Even though X’s new counsel does not wish to speak about the case, we know from other sources that it was he who, in February this year, asked for the taxi driver to be interviewed again. So in March she was interviewed at Frederikshavn police station in the presence of the chief superintendent, which is clearly at odds with what the public prosecutor previously stated in public, namely that the Frederikshavn police would not get the opportunity to be involved in the new inquiries.” 20. The interview with the taxi driver continued: “Second applicant: And what happened at the interview? Taxi driver: What happened was that I was shown into the office of the chief inspector of the Flying Squad and the chief superintendent was there too. Second applicant: Was any explanation given about why he was present? Taxi driver: No. Second applicant: So what did you say in this interview? Taxi driver: I gave the same explanations as I had done the first time when I was interviewed at home. Second applicant: Ten years before, that is. Taxi driver: Yes. Second applicant: And that was? Taxi driver: Well, that I had driven behind X and his son up to Ryets Street. Second applicant: What did they say about that? Taxi driver: They didn’t say anything. Second applicant: The report which was made in 1981, did you see it? Taxi driver: No. Second applicant: Was it there in the room? Taxi driver: There was a report there when I was being interviewed, but I wasn’t allowed to see it. Second applicant: Did you expressly ask whether you could see the old report? Taxi driver: I asked whether I could see it but the chief inspector said I couldn’t ...” 21. After the interview with the taxi driver the commentator said: “Now we are left with all the questions: why did the vital part of the taxi driver’s explanation disappear and who, in the police or public prosecutor’s office, should bear the responsibility for this? Was it the two police officers who failed to write a report about it? Hardly, sources in the police tell us they would not dare. Was it [the named chief superintendent] who decided that the report should not be included in the case file? Or did he and the chief inspector of the Flying Squad conceal the witness’s statement from the defence, the judges and the jury? ...” Pictures of the two police officers, the named chief superintendent and the chief inspector of the Flying Squad, were shown on the screen simultaneously and parallel with the above questions. The questions went on: “Why did the chief inspector phone the taxi driver shortly after the television programme ‘Convicted of Murder’? After all, the police had taken the view that the taxi driver had no importance as a witness and had filed her statement among the 0 reports. Why did the chief inspector not call her in for an interview when she repeated her original explanation on the telephone? Why was the taxi driver interviewed at the Frederikshavn police station in the presence of the chief superintendent, which was completely at odds with the public prosecutor’s public statement? On 20 September last year [a named] Chief Constable stated to [a regional daily]: ‘All the information connected to the case has been submitted to the defendants, the prosecution and the judges.’ Did the Chief Constable know about the taxi driver’s statement, when he made this statement? Did the State Prosecutor know already in 1981 that there was a statement from a witness confirming that X had been in Mølleparken twice, and that X’s son had been with him both times? Neither of them have agreed to make any statement at all about the case.” 22. In the meantime, on 11 March 1991, before the broadcast of the second programme, the taxi driver had again been interviewed by the police, at the request of X’s new counsel. She stated that on 12 December 1981 she had attended her grandmother’s funeral at 1 p.m. and that on her way there, around five or ten minutes past noon, she had driven behind X and his son. She had arrived at the funeral just before 1 p.m. She also explained that she had told the police about this when first interviewed in 1981. Later on 11 March 1991 the police carried out a check which revealed that the funeral of the taxi driver’s grandmother had indeed taken place on 12 December 1981, but at 2 p.m. Subsequently, the police held three interviews with the taxi driver, during which she changed her explanation, in particular as follows. On 24 April 1991 she maintained having seen X shortly after noon but agreed that the funeral had taken place at 2 p.m. On her way there she realised she had forgotten a wreath. She had had to return home and had consequently arrived at the funeral just before 2 p.m. On 25 April 1991 she stated that she was not sure about the date or the time she had seen X and his son. Moreover, she was uncertain whether, shortly after the murder, she had told the police about having seen X. She also explained that, during the shooting of her interview with Mr Baadsgaard on 4 April 1991, he had suggested that she say something like “where is the other report?” when he showed her the 1981 report. On 27 April 1991 she initially stated that she had not seen X and his son on 12 December 1981. She had never before connected this episode to the funeral. She also admitted having made up the story about the forgotten wreath, but had wanted “things to fit”. Later during the interview she maintained that she had seen X and his son on 12 December 1981, but at around 1 p.m. 23. On 23 May 1991 the chief superintendent reported the applicants and the television station to the police for defamation. It appears, however, that the prosecution’s decision as to whether or not to charge the applicants was adjourned pending the decision whether to reopen X’s case. 24. This was decided in the affirmative by the Special Court of Revision on 29 November 1991 after two hearings and the examination of ten witnesses, including the taxi driver. Two judges (out of five) in the Special Court of Revision found that new testimonial evidence had been produced on which X might have been acquitted, had it been available at the trial. Two other judges found that no new testimonial evidence had been produced on which X might have been acquitted, had it been available at the trial. The fifth judge agreed with the latter, but found that in other respects special circumstances existed which made it overwhelmingly likely that the available evidence had not been judged correctly. Accordingly, the court granted a retrial. 25. In the meantime, following the television programmes, an inquiry had commenced into the police investigation of X’s case. The inquiry resulted in a report of 29 July 1991 by the Regional State Prosecutor, according to which the police in Frederikshavn had not complied with section 751(2) of the Administration of Justice Act (Retsplejeloven). This provision, introduced on 1 October 1978, provides that a witness must be given the opportunity to read through his or her statement. The non-compliance had not been limited to the investigation in X’s case. Instead, allegedly in order to minimise errors or misunderstandings, the police in Frederikshavn usually interviewed witnesses in the presence of two police officers and made sure that crucial witnesses repeated their statements before a court as soon as possible. In this connection, the Regional State Prosecutor noted that the High Court, before which X had been convicted in 1982, had not made any comments on the failure to comply with section 751(2) of the Administration of Justice Act with regard to the witnesses who were heard before it in 1982. Finally, the Regional State Prosecutor noted that the Frederikshavn district police were apparently not the only district police failing to comply with the said provision. The Regional State Prosecutor considered it unjustified to maintain that the taxi driver, when interviewed in December 1981, had stated that she had seen X on the day of the murder. During the inquiry this had been contradicted by the two police officers who had interviewed her in 1981. Moreover, the inquiry did not indicate that anyone within the Frederikshavn police had suppressed any evidence in X’s case, or in any other criminal case for that matter. Consequently, on 20 December 1991, the Prosecutor General (Rigsadvokaten) stated in a letter to the Ministry of Justice that it was unfortunate and open to criticism that the police in Frederikshavn had not implemented the above provision as part of their usual routine, and informed the Ministry that he had agreed with the State Police Academy that he would produce a wider set of guidelines concerning the questioning of witnesses, which could be integrated into the Police Academy’s educational material. 26. X’s retrial ended with his acquittal in a judgment of 13 April 1992 by the High Court of Western Denmark, sitting with a jury. 27. A lawyer who represented the applicants in another case had become aware of a letter of 18 May 1992 from the Prosecutor General to the Legal Affairs Committee (Retsudvalget) of the Danish parliament mentioning that, subsequent to the broadcast of the programme “The Blind Eye of the Police”, the applicants had been reported to the police by three police officers from Frederikshavn. By a letter of 10 July 1992, the lawyer requested that the Prosecutor General state whether the applicants had been charged, and if so with what offence. By a letter of 17 July 1992, he was told that no charge had been brought against the applicants. 28. On 19 January 1993 the Chief Constable in Gladsaxe informed the applicants that they were charged with defaming the chief superintendent. On 28 January 1993 the applicants were questioned by the police in Gladsaxe. 29. A request of 11 February 1993 by the prosecution to seize the applicants’ research material was examined at a hearing in the Gladsaxe City Court (Retten i Gladsaxe) on 30 March 1993, during which the applicants’ counsel, claiming that the case concerned a political offence, requested that a jury in the High Court – instead of the City Court – try the case. Both requests were refused by the Gladsaxe City Court on 28 May 1993. In June 1993 the prosecution appealed against the decision on seizure and the applicants appealed against the decision on venue. At the request of one of the applicants’ counsel, an oral hearing was scheduled to take place in the High Court of Eastern Denmark (Østre Landsret) on 15 November 1993. However, on 7 October 1993 counsel challenged one of the judges in the High Court, alleging disqualification, and requested an oral hearing on the issue. The High Court decided on 15 October 1993 to refuse an oral hearing and on 11 November 1993 it decided that the judge in question was not disqualified. It appears that counsel requested leave to appeal against this decision to the Supreme Court (Højesteret), but to no avail. As to the appeal against non-seizure and the question of venue, hearings were held in the High Court on 6 January and 7 March 1994, and by a decision of 21 March 1994 the High Court upheld the City Court’s decisions. The applicants’ request for leave to appeal to the Supreme Court was refused on 28 June 1994. 30. On 5 July 1994 the prosecution submitted an indictment to the City Court. A preliminary hearing was held on 10 November 1994 during which it was agreed that the case would be tried over six days in mid-June 1995. However, as counsel for one of the parties was ill, the final hearings were rescheduled to take place on 21, 24, 28 and 30 August and 8 September 1995. 31. On 15 September 1995 the Gladsaxe City Court delivered a sixty-eight-page judgment, finding that the questions put in the television programme concerning the named chief superintendent amounted to defamatory allegations, which should be declared null and void. However, the court did not impose any sentence on the applicants as it found that they had had reason to believe that the allegations were true. The court also ruled in favour of the applicants regarding a compensation claim by the widow of the named chief superintendent, who had died before the trial. The judgment was appealed against by the applicants immediately, and by the prosecution on 27 September 1995. 32. On 15 April 1996 the prosecutor sent a notice of appeal to the High Court, and on 30 April 1996 he invited counsel for the applicants and the attorney for the widow of the chief superintendent to a meeting concerning the proceedings. Counsel for one of the parties stated that he was unable to attend before 17 June 1996, and accordingly the meeting was held on 25 June 1996. The High Court received the minutes of the meeting, from which it appeared that counsel for one of the parties was unable to attend the trial before November 1996, and that he preferred the hearings to take place in early 1997. On 16 August 1996 the High Court scheduled the hearings for 24, 26 and 28 February and 3 and 4 March 1997. 33. On 6 March 1997 the High Court gave judgment convicting the applicants of tarnishing the honour of the chief superintendent by making and spreading allegations of an act likely to disparage him in the eyes of his fellow citizens, under Article 267 § 1 of the Penal Code. The allegations were declared null and void. The applicants were each sentenced to twenty day-fines of DKK 400 (or twenty days’ imprisonment in default) and ordered to pay compensation of DKK 75,000 to the estate of the deceased chief superintendent. 34. On 6, 16 and 25 March 1997 the applicants sought leave from the Leave-to-Appeal Board (Procesbevillingsnævnet) to appeal to the Supreme Court. Before deciding, the Board requested an opinion from the prosecuting authorities, namely the Chief of Police, the State Prosecutor and the Prosecutor General. On 27 June 1997 they submitted a joint opinion opposing leave to appeal. However, in the meantime, it appears that a lawyer representing the television station Danmarks Radio had contacted the State Prosecutor, proposing that the public prosecution assist in bringing the case before the Supreme Court as, according to the television station, the High Court’s judgment was incompatible with the Media Responsibility Act (Medieansvarsloven). Consequently, the public prosecutors initiated a new round of consultation on this question, and their joint opinion was forwarded to the Board on 3 September 1997. On 29 September 1997, having heard the applicants’ counsel on the prosecution’s submissions, the Board granted the applicants leave to appeal to the Supreme Court. 35. The Prosecutor General submitted a notice of appeal and sent the case file to the Supreme Court on 3 October and 6 November 1997 respectively. 36. As counsel for the applicants wanted to engage yet another counsel, on 20 November 1997 they asked the Supreme Court whether costs in this respect would be considered legal costs. Moreover, they stated that their pleadings could not be submitted until early January 1998. On 17 March 1998 the Supreme Court decided on the question of costs, and on 19 March 1998 scheduled the hearing for 12 and 13 October 1998. 37. By a judgment of 28 October 1998, the Supreme Court upheld the High Court’s judgment, but increased the compensation payable to the estate to DKK 100,000. The majority of judges (three out of five) held: “In the programme ‘The Blind Eye of the Police’, [the applicants] not only repeated a statement by the taxi driver that she had already explained to the police during their inquiries in 1981 that shortly after noon on 12 December 1981 she had driven behind X for about one kilometre, but also, in accordance with the common premise for the programmes ‘Convicted of Murder’ and ‘The Blind Eye of the Police’, took a stand on the truth of the taxi driver’s statement and presented matters in such a way that viewers, even before the final sequence of questions, were given the impression that it was a fact that the taxi driver had given the explanation as she alleged she had done in 1981 and that the police were therefore in possession of this statement in 1981. This impression was strengthened by the first of the concluding questions: ‘... why did the vital part of the taxi driver’s explanation disappear and who, in the police or public prosecutor’s office, should bear the responsibility for this?’. In connection with the scenes about the two police officers [the applicants] include two questions in the commentator’s narrative, to which the indictment relates; irrespective of the fact that they were phrased as questions, viewers undoubtedly received a clear impression that a report had been made about the taxi driver’s statement that she had seen X at the relevant time on 12 December 1981; that this report had subsequently been suppressed; and that such suppression had been decided upon either by the named chief superintendent alone or by him and the chief inspector of the Flying Squad jointly. The subsequent questions in the commentator’s narrative do not weaken this impression, and neither does the question whether the Chief Constable or the public prosecutor were aware of the taxi driver’s statement. On this basis we find that in the programme ‘The Blind Eye of the Police’ [the applicants] made allegations against the named superintendent which were intended to discredit him in the eyes of his peers, within the meaning of Article 267 § 1 of the Penal Code [Straffeloven]. We find further that it must have been clear to [the applicants] that they were, by way of their presentation, making such allegations. [The applicants] have not endeavoured to provide any justification but have claimed that there is no cause of action by virtue of Article 269 § 1 of the Penal Code – [which protects] a party who in good faith justifiably makes an allegation which is clearly in the general public interest or in the interest of other parties ... As laid down in Thorgeir Thorgeirson v. Iceland (judgment of 25 June 1992), there is a very extensive right to public criticism of the police. As in that decision there is, however, a difference between passing on and making allegations, just as there is a difference between criticism being directed at the police as such and at individual named officers in the police force. Even though being in the public eye is a natural part of a police officer’s duties, consideration should also be given to his good name and reputation. As stated, [the applicants] did not limit themselves in the programme to referring to the taxi driver’s statement or to making value judgments on this basis about the quality of the police investigations and the chief superintendent’s leadership thereof. Nor did [the applicants] limit themselves to making allegations against the police as such for having suppressed the taxi driver’s explanation; they alleged that the named chief superintendent had committed a criminal offence by suppressing a vital fact. When [the applicants] were producing the programme, they knew that an application had been made to the Special Court of Revision for the case against X to be reopened and that, as part of the Court of Revision’s proceedings in dealing with the said application, the taxi driver had been interviewed by the police on 11 March 1991 at the request of X’s defence as part of the proceedings to reopen the case. In consequence of the ongoing proceedings for reopening the case, [the applicants] could not count on the chief superintendent and the two police officers who had interviewed the taxi driver in 1981 being prepared to participate in the programme and hence possibly anticipate proceedings in the Court of Revision. Making the allegations cannot accordingly be justified by lack of police participation in the programme. [The applicants’] intention, in the programme, of undertaking a critical assessment of the police investigation was legitimate in relation to the role of the media as public watchdog, but this does not apply to every allegation. [The applicants] had no basis for making such a serious allegation against a named police officer, and [the applicants’] opportunities for achieving the aims of the programme in no way required the questions upon which the charges are based to be included. On this basis, and even though the exemptions provided in Article 10 § 2 of the Convention must be narrowly interpreted and Article 10 protects not only the content of utterances but also the manner in which they are made, we agree that the allegation made was not caught by the exemption in Article 269 § 1 of the Penal Code. Indeed, as a result of the seriousness of the allegation, we agree that there is no basis for the punishment to be remitted in accordance with Article 269 § 2 of the Penal Code. We agree further that there are no grounds for a remittal of penalty under Article 272. We also concur with the findings on defamation. We agree with the High Court that the fact that the allegation was made in a programme on the national television station Danmarks Radio and hence could be expected to get widespread publicity – as indeed it did – must be regarded as an aggravating factor for the purposes of Article 267 § 3. Considering that it is more than seven years since the programme was shown, we do not find, however, that there are sufficient grounds for increasing the sentence. For the reasons given by the High Court, we find that [the applicants] must pay damages to the heirs of the chief superintendent. In this connection, it should be noted that it cannot be regarded as crucial that the nature of the claim for damages was not stated in the writ of 23 May 1991, since the chief superintendent’s claim for financial compensation could not relate to anything other than damages. Due to the seriousness of the allegation and the manner of its presentation, we find that the compensation should be increased to DKK 100,000.” 38. The minority of two judges who argued for the applicants’ acquittal held, inter alia: “We agree that the statements covered by the indictment, irrespective of their having been phrased as questions, have to be regarded as indictable under Article 267 § 1 of the Penal Code and that [the applicants] had the requisite intention. As stated by the majority, the question of culpability must be decided in accordance with Article 269 § 1, taken together with Article 267 § 1, interpreted in the light of Article 10 of the European Convention on Human Rights and the European Court of Human Rights’s restrictive interpretation of the exemptions under Article 10 § 2. In reaching a decision, consideration must be given to the basis on which [the applicants] made their allegations, their formulation and the circumstances under which they were made, as well as [the applicants’] intentions in the programme. ... We find that [the applicants] had cause to suppose that the taxi driver’s statement that she had seen X on 12 December 1981 shortly past noon was true. We further find ... that [the applicants] had reason to assume that the taxi driver, when interviewed in 1981, had told the two police officers that she had seen X ...We accordingly attach weight to the fact that it is natural for such an observation to be reported to the police; that it is also apparent from her explanation in the police report of 11 March 1991 that she had already told the police about her observations in 1981; and that her explanation about the reaction of the police to her information that X’s son had been in the car strengthened the likelihood of her having reported the observation at the interview in 1981. ... It is apparent from the television programme that [the applicants] were aware that the Frederikshavn police had not at that time complied with the requirement to offer a person interviewed an opportunity to see the records of his or her statements. [The applicants] may accordingly have had some grounds for supposing that the December report did not contain the taxi driver’s full statement or that there was another report thereon ... We consider that [the applicants], in putting the questions covered by the indictment, did not exceed the limits of the freedom of expression which, in a case such as the present one, which relates to serious matters of considerable public interest, should be available to the media. We also attach some weight to the fact that the programme was instrumental in the Court of Revision’s decision to hear witnesses and we attach some weight to X’s subsequent acquittal. Overall, we accordingly find that [the allegation] is not punishable by virtue of Article 269 § 1 of the Penal Code ... [We agree that] the allegation should be declared null and void since its veracity has not been proved ...” 39. The relevant provisions of the Danish Penal Code applicable at the time read as follows: “If a person in the exercise of a public office or function has been guilty of false accusation, an offence relating to evidence ... or breach of trust, the penalty prescribed for the particular offence may be increased by not more than one-half.” “1. Any person who gives false evidence before a public authority with the intention that an innocent person shall thereby be charged with, convicted of, or subject to the legal consequence of, a punishable act shall be liable to mitigated detention [hæfte] or to imprisonment for a term not exceeding six years. 2. Similar punishment shall apply to any person who destroys, distorts or removes evidence or furnishes false evidence with the intention that any person shall thereby be charged with, or convicted of, a criminal act ...” “1. Any person who tarnishes the honour of another by offensive words or conduct or by making or spreading allegations of an act likely to disparage him in the eyes of his fellow citizens shall be liable to a fine or to mitigated detention. ... 3. When imposing sentence it shall be considered an aggravating circumstance if the insult was made in printed documents or in any other way likely to give it wider circulation, or in such places or at such times as greatly to aggravate the offensive character of the act.” “If an allegation has been maliciously made or disseminated, or if the author has no reasonable ground to regard it as true, he shall be guilty of defamation and liable to mitigated detention or to imprisonment for a term not exceeding two years. If the allegation has not been made or disseminated publicly, the punishment may, in mitigating circumstances, be reduced to a fine.” “1. An allegation shall not be punishable if its truth has been established or if the author of the allegation has in good faith been under an obligation to speak or has acted in lawful protection of an obvious public interest or of the personal interest of himself or of others. 2. The punishment may be remitted where evidence is produced which justifies the grounds for regarding the allegations as true.” “The penalty prescribed in Article 267 of the Penal Code may be remitted if the act has been provoked by improper behaviour on the part of the injured person or if he is guilty of retaliation.” 40. Section 751 of the Administration of Justice Act read as follows: “(1) The relevant parts of the given testimonies must be included in the reports and particularly important parts of the testimonies should as far as possible be reported using the person’s own words. (2) The person interviewed shall be given the opportunity to acquaint himself with the report. Any corrections or supplementary information shall be included in the report. The person interviewed shall be informed that he is not obliged to sign the report. (3) Audio recordings of the interview may only take place after informing the person interviewed.” | 0 |
dev | 001-57534 | ENG | BEL | CHAMBER | 1,979 | CASE OF MARCKX v. BELGIUM | 2 | Violation of Art. 8;Violation of Art. 14+8;Violation of Art. 14+P1-1;Non-pecuniary damage - finding of violation sufficient | null | 8. Alexandra Marckx was born on 16 October 1973 at Wilrijk, near Antwerp; she is the daughter of Paula Marckx, a Belgian national, who is unmarried and a journalist by profession. Paula Marckx duly reported Alexandra’s birth to the Wilrijk registration officer who informed the District Judge (juge de paix) as is required by Article 57 bis of the Belgian Civil Code ("the Civil Code") in the case of "illegitimate" children. 9. On 26 October 1973, the District Judge of the first district of Antwerp summoned Paula Marckx to appear before him (Article 405) so as to obtain from her the information required to make arrangements for Alexandra’s guardianship; at the same time, he informed her of the methods available for recognising her daughter and of the consequences in law of any such recognition (see paragraph 14 below). He also drew her attention to certain provisions of the Civil Code, including Article 756 which concerns "exceptional" forms of inheritance (successions "irrégulières"). 10. On 29 October 1973, Paula Marckx recognised her child in accordance with Article 334 of the Code. She thereby automatically became Alexandra’s guardian (Article 396 bis); the family council, on which the sister and certain other relatives of Paula Marckx sat under the chairmanship of the District Judge, was empowered to take in Alexandra’s interests various measures provided for by law. 11. On 30 October 1974, Paula Marckx adopted her daughter pursuant to Article 349 of the Civil Code. The procedure, which was that laid down by Articles 350 to 356, entailed certain enquiries and involved some expenses. It concluded on 18 April 1975 with a judgment confirming the adoption, the effect whereof was retroactive to the date of the instrument of adoption, namely 30 October 1974. 12. At the time of her application to the Commission, Ms. Paula Marckx’s family included, besides Alexandra, her own mother, Mrs. Victorine Libot, who died in August 1974, and a sister, Mrs. Blanche Marckx. 13. The applicants complain of the Civil Code provisions on the manner of establishing the maternal affiliation of an "illegitimate" child and on the effects of establishing such affiliation as regards both the extent of the child’s family relationships and the patrimonial rights of the child and of his mother. The applicants also put in issue the necessity for the mother to adopt the child if she wishes to increase his rights. 14. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth: whilst the birth certificate recorded at the registry office suffices to prove the maternal affiliation of a married woman’s children (Article 319 of the Civil Code), the maternal affiliation of an "illegitimate" child is established by means either of a voluntary recognition by the mother or of legal proceedings taken for the purpose (action en recherche de maternité). Nevertheless, an unrecognised "illegitimate" child bears his mother’s name which must appear on the birth certificate (Article 57). The appointment of his guardian is a matter for the family council which is presided over by the District Judge. Under Article 334, recognition, "if not inserted in the birth certificate, shall be effected by a formal deed". Recognition is declaratory and not attributive: it does not create but records the child’s status and is retroactive to the date of birth. However, it does not necessarily follow that the person effecting recognition is actually the child’s mother; on the contrary, any interested party may claim that the recognition does not correspond to the truth (Article 339). Many unmarried mothers - about 25 % according to the Government, although the applicants consider this an exaggerated figure - do not recognise their child. Proceedings to establish maternal affiliation (action en recherche de maternité) may be instituted by the child within five years from his attainment of majority or, whilst he is still a minor, by his legal representative with the consent of the family council (Articles 341a-341c of the Civil Code). 15. The establishment of the maternal affiliation of an "illegitimate" child has limited effects as regards both the extent of his family relationships and the rights of the child and his mother in the matter of inheritance on intestacy and voluntary dispositions. 16. In the context of the maternal affiliation of an "illegitimate" child, Belgian legislation does not employ the concepts of "family" and "relative". Even once such affiliation has been established, it in principle creates a legal bond with the mother alone. The child does not become a member of his mother’s family. The law excludes it from that family as regards inheritance rights on intestacy (see paragraph 17 below). Furthermore, if the child’s parents are dead or under an incapacity, he cannot marry, before attaining the age of twenty-one, without consent which has to be given by his guardian (Article 159 of the Civil Code) and not, as is the case for a "legitimate" child, by his grandparents (Article 150); the law does not expressly create any maintenance obligations, etc., between the child and his grandparents. However, certain texts make provision for exceptions, for example as regards the impediments to marriage (Articles 161 and 162). According to a judgment of 22 September 1966 of the Belgian Court of Cassation (Pasicrisie I, 1967, pp 78-79), these texts "place the bonds existing between an illegitimate child and his grandparents on a legal footing based on the affection, respect and devotion that are the consequence of consanguinity ... (which) creates an obligation for the ascendants to take an interest in their descendants and, as a corollary, gives them the right, whenever this is not excluded by the law, to know and protect them and exercise over them the influence dictated by affection and devotion". The Court of Cassation deduced from this that grandparents were entitled to a right of access to the child. 17. A recognised "illegitimate" child’s rights of inheritance on intestacy are less than those of a "legitimate" child. As appears from Articles 338, 724, 756 to 758, 760, 761, 769 to 773 and 913 of the Civil Code, a recognised "illegitimate" child does not have, in the estate of his parent who dies intestate, the status of heir but solely that of "exceptional heir" ("successeur irrégulier"): he has to seek a court order putting him in possession of the estate (envoi en possession). He is the sole beneficiary of his deceased mother’s estate only if she leaves no relatives entitled to inherit (Article 758); otherwise, its maximum entitlement - which arises when his mother leaves no descendants, ascendants, brothers or sisters – is three-quarters of the share which he would have taken if "legitimate" (Article 757). Furthermore, his mother may, during her lifetime, reduce that entitlement by one-half. Finally, Article 756 denies to the "illegitimate" child any rights on intestacy in the estates of his mother’s relatives. 18. Recognised "illegitimate" children are also at a disadvantage as regards voluntary dispositions, since Article 908 provides that they "may receive by disposition inter vivos or by will no more than their entitlement under the title ‘Inheritance on Intestacy’". Conversely, the mother of such a child, unless she has no relatives entitled to inherit, may give in her lifetime or bequeath to him only part of her property. On the other hand, if the child’s affiliation has not been established, the mother may so give or bequeath to him the whole of her property, provided that there are no heirs entitled to a reserved portion of her estate (héritiers réservataires). The mother is thus faced with the following alternative: either she recognises the child and loses the possibility of leaving all her estate to him; or she renounces establishing with him a family relationship in the eyes of the law, in order to retain the possibility of leaving all her estate to him just as she might to a stranger. 19. If the mother of a recognised "illegitimate" child remains unmarried, she has but one means of improving his status, namely, "simple" adoption. In such cases, the age requirements for this form of adoption are eased by Article 345 para. 2, sub-paragraph 2, of the Civil Code. The adopted child acquires over the adopter’s estate the rights of a "legitimate" child but, unlike the latter, has no rights on intestacy in the estates of his mother’s relatives (Article 365). Only legitimation (Articles 331-333) and legitimation by adoption (Articles 368-370) place an "illegitimate" child on exactly the same footing as a "legitimate" child; both of these measures presuppose the mother’s marriage. 20. Belgium has signed, but not yet ratified, the Brussels Convention of 12 September 1962 on the Establishment of Maternal Affiliation of Natural Children, which was prepared by the International Commission on Civil Status and entered into force on 23 April 1964. Neither has Belgium yet ratified, nor even signed, the Convention of 15 October 1975 on the Legal Status of Children born out of Wedlock, which was concluded within the Council of Europe and entered into force on 11 August 1978. Both of these instruments are based on the principle "mater semper certa est"; the second of them also regulates such questions as maintenance obligations, parental authority and rights of succession. 21. However, the Belgian Government submitted to the Senate on 15 February 1978 a Bill to which they referred the Court in their memorial of 3 July 1978 and subsequently at the hearings on 24 October. The official statement of reasons accompanying the Bill, which mentions, inter alia, the Conventions of 1962 and 1975 cited above, states that the Bill "seeks to institute equality in law between all children". In particular, maternal affiliation would be established on the mother’s name being entered on the birth certificate, which would introduce into Belgian law the principle "mater semper certa est". Recognition by an unmarried mother would accordingly no longer be necessary, unless there were no such entry. Furthermore, the Civil Code would confer on children born out of wedlock rights identical to those presently enjoyed by children born in wedlock in the matter of inheritance on intestacy and voluntary dispositions. | 1 |
dev | 001-106262 | ENG | GBR | ADMISSIBILITY | 2,011 | KNAGGS AND KHACHIK v. THE UNITED KINGDOM | 4 | Inadmissible | Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva | 1. The applicants, Mr Russell Knaggs (“the first applicant”) and Mr Ramzy Khachik (“the second applicant”), are British nationals who were born in 1973 and 1957 respectively and are currently being detained in HMP Lowdham Grange, Nottingham. They were represented before the Court by Mr P. Hughman, a solicitor practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms H. Upton, of the Foreign and Commonwealth Office. 2. On 8 November 2001 an officer in the National Crime Squad applied to conduct directed surveillance (i.e. observation of an individual in public) of the first applicant, Mr Knaggs, and his criminal associates. The application was part of an ongoing investigation into the criminal activities of the first applicant. The application was authorised and directed surveillance commenced, with monthly reviews. 3. In a review of the directed surveillance of 17 January 2002, it was noted that surveillance was progressing highly successfully and beneficially in expanding the intelligence base and developing knowledge of Mr Knaggs’ operation. 4. On 8 February 2002 an officer in the National Crime Squad ordered a feasibility study into the possibility of placing a probe (i.e. a listening device) in a Mitsubishi Shogun vehicle which Mr Knaggs allegedly owned. The purported purpose of the probe was to record conversations of face-to-face meetings in the vehicle. 5. On 11 February 2002 a National Crime Squad officer applied for authorisation for intrusive surveillance (i.e. observation of an individual in private or by means of a surveillance device) under the Police Act 1997 and the Regulation of Investigatory Powers Act 2000 (“RIPA”) (see paragraphs 114-115 below), in order to place the probe in the vehicle. The application included details of what was being sought and how the proposed action was proportionate to what it sought to achieve. It stated: “Observations have corroborated Knaggs carrying criminal associates as passengers, and it is believed that he discusses his drugs business with them whilst travelling in the Shogun.” 6. The application was authorised by the Director General on 15 February 2002. The probe was installed on or around 25 February 2002. 7. Between 25 February 2002 and 5 April 2002, the probe was operated and the conversations in the car recorded. On 12 March 2002, a review of the intrusive surveillance was conducted. The review document noted that around 150 mobile telephone calls had been made or received while Mr Knaggs was in the vehicle and that 17 meetings had taken place. 8. On 5 April 2002 the applicants were arrested and subsequently charged with conspiracy to supply a Class A drug. Legal proceedings were commenced in the Crown Court. Mr Knaggs did not lodge any defence statement setting out the nature and scope of his defence. 9. In the course of disclosure, the prosecution provided CD copies of the probe tapes to the applicants. As Mr Knaggs had regularly used his mobile telephone while in his car, the probe tapes contained for the most part one-sided mobile telephone conversations. Mr Knaggs sought the advice of a technical expert. 10. In a preliminary report dated 30 September 2002 instructed by Mr Knaggs, Mr D. Campbell, a technical and telecommunications consultant, commented on the probe material. He explained that he had had time to examine only eight of the approximately 280 audio CDs produced in the case. He noted at the outset that he was strongly of the view that the placing of the probe in the vehicle was done knowingly to defeat the prohibition contained in the Regulation of Investigatory Powers Act (“RIPA” – see paragraphs 121-123 below) on the use of telecommunications information in evidence. He further noted that the recordings appeared to contain extraneous signals which suggested that an interception of communications had taken place, although he accepted that an innocuous explanation for the extraneous signals might exist. He continued: “If there is to be a dispute, the Court will in my view have no alternative but to enquire into details of the technical systems use[d] to monitor conversations in the vehicle to relay the information to the listening office, and the methods of recordings and operations in use at the listening centre.” 11. The report explained that, according to the police, the probe had relayed the sounds it captured immediately to a secure listening office, where teams of two officers had supervised the creation of two simultaneous copy Digital Audio Tapes (“DAT tapes”) recording the signal from the probe. The decision to supply the defence with CD copies of the DAT tapes posed problems for forensic analysis, as the authentic time coding embedded in the original recordings was lost. Further, the use of a recording method which created “markers” to show when one audio recording stopped and another started had sometimes been used, which also prevented checking the audio material against transcripts and billing records. 12. Mr Campbell noted three major extraneous signals in the eight CDs he had examined. One was where the audio signal to the probe had been lost but it was possible to hear a sound which resembled the dialling of a phone. The report continued: “The enigma thus created is how the recording machinery ... is able to capture signals from the phone other than via the listening device. The best-fitting explanation on the data so far examined is that during the quiet periods (when the connection to the listening device had been lost), the DAT machine records (at a lower level) signals from a separate interception system which is inadvertently feeding into the recording system for the Shogun.” 13. Another extraneous signal was observed where the signal had been lost but words apparently spoken by Mr Knaggs were picked up. Mr Campbell suggested two possible explanations: first, that the police officers had dishonestly tampered with the evidence of the sound recordings but left traces of their conduct; second, that the conversations were not only being monitored by the probe but were at the same time being intercepted under a RIPA warrant, resulting in “spillage of signals” due to proximate equipment. He considered the second possibility to have “much more profound implications”. 14. Mr Campbell’s report then went on to consider a possible explanation for the events which had been observed. He advanced the view that given the nature of the investigation and the views of the police regarding Mr Knaggs, an interception of his communications would have been warranted. He continued: “I speculate that this was done, and that officers heard a pattern of calls develop not unlike those in evidence. From this monitoring, they would realise that calls of the type they regarded as suspicious were often made by Knaggs when sitting in his vehicles ... From the police perspective in this situation, the core problem was that (as alleged in the case) Knaggs was a shrewd operator who did not put himself in possession of drugs or incriminating materials. Yet they knew that calls took place of a type they regarded as highly incriminating. Their problem was that in order to prosecute Knaggs, they would need evidence to take into court, and the RIPA interceptions could not be used ...” 15. In the section of his report named “Context and conclusion”, Mr Campbell noted: “If my observations and reasoning in due course prove correct, then Russell Knaggs is correct in claiming that the sole purpose of planting the listening device was to enable the police to evade the restrictions placed in RIPA and get interception evidence into Court. That goes to the heart of the issue of admissibility. The possible inadvertent co-presence of evidence of RIPA interception material in the case is a remarkable echo of the first case in this field, Malone [v. the United Kingdom, 2 August 1984, Series A no. 82] ... I wonder if history is now repeating itself in digital form.” 16. In his second report dated 3 October 2002, Mr Campbell again set out his hypothesis that at the same time as signals from the probe were being recorded, signals direct from Mr Knaggs’ mobile phone were being intercepted by the police under an interception warrant. He continued: “If this is correct it follows that the covert recording device was not necessary for the police to gain intelligence on his activities, as better quality intelligence was being obtained from the intercept or intercepts on Knaggs’ phone(s) ...” 17. The report considered the application for authorisation to carry out intrusive surveillance, which it considered was: “... misleading at best, insofar as it did not state that the true purpose of the application was to obtain evidence known to be available from intercepted phone calls, but inadmissible because of RIPA ...” 18. It also noted the first applicant’s instructions that, at the time the application for intrusive surveillance was made, he had never even used the Shogun and that the statement that he used it to meet with criminal associates (see paragraph 5 above) was false. 19. Reference was made to the presence of voices which were not recorded on the written transcripts of the DAT tapes but which could be heard on the tapes by the introduction of amplification. These incidents occurred during periods in which the transcripts indicated that the signal to the probe had been lost. He considered that the voice “crosstalk” appeared to be coming from another system which was directly intercepting all the communications from Mr Knaggs’ phone. 20. The applicants subsequently sought confirmation from the prosecution of whether or not there had been an intercept of Mr Knaggs’ telephone communications and, if so, the dates on which the intercept had been in place. Defence counsel explained that the reason for the request was that, if there was an intercept, they would have grounds to challenge the necessity and lawfulness of the probe and the motivations of the police officers requesting the probe. The prosecution were unable to provide the confirmation sought by the applicants because section 17 of RIPA appeared to preclude the asking of any question and the disclosure of any information relating to whether or not there had been an intercept. Section 18 allowed limited disclosure of the content of an intercept in certain circumstances and where such disclosure could be made without breaching the section 17 prohibition. Section 18(7)(b) clarified that nothing in section 17 prohibited disclosure of information to a relevant judge in a case where the judge has ordered disclosure to be made to him alone. 21. In October 2002, the applicants applied for a ruling from the Crown Court as to the operation of sections 17 and 18 RIPA in respect of their request for confirmation as to the existence and duration of any intercept of communications. Submissions were made to the court by counsel for Mr Knaggs and by counsel for Mr Khachik. 22. The transcript of the proceedings before the court on 23 October 2002 records, inter alia, the following: “Mr Ryder [counsel for Mr Knaggs]: ... whilst, perhaps regrettably, the Act [RIPA] does not provide for judicial involvement as of necessity, it does make involvement possible at your Honour’s discretion, subject to your Honour being satisfied there are exceptional circumstances. ... The exceptional circumstances ... would be that there is material in the hands of the Defence which does suggest, and strongly suggests, that intelligence of some sort existed – and I will put it in neutral terms, for obvious reasons – which, if it existed, is potentially highly relevant to matters both on the voir dire and on the trial of the sort that I have set out in the course of my skeleton argument.” 23. The transcript also notes the following discussion: “Mr Ryder: ... If your Honour is empowered actually to order the disclosure of material to you, certainly implicit in that is power to make enquiries to determine whether or not that is necessary. Judge Lawler: But you originally, in your skeleton, were not seeking anything to do with the material. Mr Ryder: No. Judge Lawler: Just the fact of whether or not there was an intercept. Mr Ryder: That is right. That is really what I am interested in.” 24. Subsequently, the following exchange took place: “Judge Lawler: ... as I understand it, you are inviting me to effectively convene the Crown on what would be a [public interest immunity] hearing. Mr Ryder: Yes. Judge Lawler: And ask them to disclose anything that there is – if there is anything – about an intercept. Mr Ryder: To your Honour. ... ... If there is something and it is revealed to your Honour, we are then in this position: we will conduct the voir dire along the line that I have indicated in previous skeleton arguments and in the current one. We will not know what your Honour knows, but your Honour will have in mind what your Honour has learned, in determining whether or not the answers given by a given officer, for example, are honest or not, whether or not there was intelligence which informed what they were doing which rendered the necessity for the intrusive surveillance less urgent than they said, things of that sort ...” 25. Counsel for Mr Khachik asked the court, if the prosecution were asked to confirm whether there was an intercept, to bear in mind whether the authorities had complied with the relevant safeguards in the legislation. 26. Later, counsel for the prosecution made the following statement: “The first thing I should say is that, in carrying out my duties, I have had regard to everything I know, the points the Defence wish to make and to the Defence cases as they have been set out in interview and sometimes in argument. If I may, for example, use the matter put forward by Mr Smith, on behalf of Mr Khachik, I am well aware of the nature of the Prosecution case and the importance of seeking out any material that may further a suggestion that Mr Khachik was not in fact the person at the other end of the telephone, or that he was having an innocent conversation. I have obviously borne that in mind ... throughout when considering any matter of disclosure. ... ... [I]f there were no intercept in this case, it seems very difficult to see how an admission could be drafted that did not reveal that fact that could be relevant to these proceedings.” 27. No mention was made in the oral submissions of counsel for either applicant, or by counsel for any of the other defendants in the case, of any concerns regarding, or potential challenge to, the integrity, authenticity or reliability of the probe material. 28. Handing down his ruling later that day, with reasons to follow, Judge Lawler said: “I am obviously conscious of my duty to ensure that these proceedings are conducted fairly. I have noted on more than one occasion the concerns expressed by the defence in relation to disclosure and I have taken time to consider the submissions this morning against the background of the relevant statutes, authorities and skeletons which I considered before today. I am happy to confess that I find this a very difficult area. In the end result I have decided not to exercise my power under section 18(7)(b).” 29. On 25 October 2002, Judge Lawler gave full reasons for his decision. He noted at the outset: “The evidence upon which the Crown relies comes from several different sources. There is evidence from observations by Police Officers, and overheard conversations. There is evidence from a co-defendant, [W.], who has pleaded guilty and awaits sentence. He has implicated a number of Defendants in a material way. There is evidence of the recovery of drugs and associated drugs apparatus as well as money. In addition, the Crown have material upon which they can draw from the interviews of some of the Defendants ... A fairly large portion of the evidence, however, relied upon by the Crown, is the result of a probe which was attached to Mr Knaggs’ vehicle, and from which many hours of meetings and telephone conversations with alleged co-conspirators and others were taped and later transcribed. That evidence is potentially very incriminating, and the subject of a hotly contested voir dire as to its admissibility.” 30. Summarising the defence objections to the evidence, the judge noted: “The Defence wish, among other things, to test the lawfulness of the applications made, and the authorities given. There may also be an issue of bad faith on the part of the National Crime Squad ...” 31. He continued: “In his second skeleton of the 14th October ... Mr Ryder suggested that material existed which suggested that an interception had taken place. Understandably, we do not know what that material is. We do not know whether it emanates from his expert, or his instructions from his lay client, or a mixture of both. If this is the case, he says the fact of – though not the content of – such intercepts is directly relevant to the integrity of the applications for authorisation to deploy intrusive surveillance and to the admissibility of evidence arising out of such surveillance. He went on to say that assertions and implications in the application for authorisation to conduct intrusive surveillance, that it was not feasible to gather evidence by conventional methods of surveillance, are untenable if such conventional surveillance was informed by information as to Mr Knaggs’ movements and activities gathered by way of telephone interception. It is this matter which has loomed large, and given rise to some difficult questions concerning the construction, interpretation and operation of Sections 17 and 18 of the 2000 Act.” 32. Considering the effect of section 17 RIPA, the judge noted that: “It can thus be seen that subject to Section 18 there is no ambiguity about Section 17. Its terms and intention are crystal clear. There is a strict prohibition, a complete blanket comes down on anything at all which would reveal whether there was, or was not, an intercept, or even the possibility that there was, or might have been an intercept, or, indeed, application for an intercept. On its face that would completely rule out any disclosure of the kind originally asked for by the Defence in their skeleton. That was why the Crown ... had concerns about the very legality of what the Defence, through their expert, was doing. Concerns shared by the Court ... The effect of the Rule ... is that interceptive material cannot be used either by the Prosecution or the Defence, thus preserving the equality of arms principle enshrined in Article 6 of the ... Convention ...” 33. He continued: “[Mr Ryder] said that the exceptional circumstances was that there is material in the hands of the defence which, as I have said, the Court does not know the nature of, which strongly suggests that, to put it bluntly, though he was more circumspect, an intercept had been in place, and the relevance that had to the voir dire, as I have indicated already, and as he set out in his first skeleton, was obvious.” 34. As to the conduct of the prosecution in ensuring fairness in the proceedings, the judge noted: “... Mr Garside [counsel for the prosecution] indicated that he had had regard to all he was aware of from the Defence point of view, which had arisen in interview, or in argument. In particular he highlighted and answered Mr Smith’s point [on behalf of Mr Khachik] about the one-sided conversations ... He indicated that were he in possession of information, from whatever source, to exclude, exculpate or explain Mr Khachik’s part in one-sided conversations he would, consistent with his duty, have made an admission, and not have advanced a case to the Jury which he had any reason to think was false.” 35. Judge Lawler reviewed the provisions of RIPA and the power of the judge under section 18 to review any evidence. He found: “... it seems to me that the whole tenor of these provisions is directed to the material arising out of an interception. It has been made clear in this case that the Defence have absolutely no interest in any such material, even if there is any. Their interest is as to whether there was or was not an intercept.” 36. As to the correct interpretation of section 18(7), he said: “I am of the view that any information [in section 18(7)] relates to the material arising out of the intercept. I suppose it may reasonably be argued that any information surfacing as a result of something said or done in turn arising out of the intercept material, which was also in [the] possession of the authorities, might be included, but it goes no further than that. The important point, however, is that none of this has any relevance because, as I have said, it is not what the Defence are after to help their testing of the evidence or arguments on the voir dire. I am satisfied, therefore, that any information in sub-section 7 cannot be widened and interpreted to mean whether, for example, there was or was not an intercept, or any application for one. It cannot do so because release of that information is strictly prohibited.” 37. Summarising counsel for Mr Knaggs’ suggested approach (see paragraph 24 above), the judge continued: “I find a number of difficulties with these points. First, it cannot be gainsaid but that as Mr Ryder has conceded on more than one occasion the Defence are not remotely interested in any material emanating from the intercept, but with whether there was one. That is the whole thrust of his argument.” 38. He concluded: “However, even if I am wrong about the various matters I have just rehearsed, I am of the opinion that whilst the point has some importance on the voir dire, it is not so important as to amount to exceptional circumstances whereby disclosure is essential and required in the interests of justice. It is but one aspect of the voir dire. In addition, there is nothing particularly exceptional about this situation. It is likely to occur quite frequently where the authorities believe that they are one the path of serious crime and where authority has been granted for intrusive surveillance, but there may well be an intercept lurking in the background.” 39. The applicants subsequently applied for the proceedings to be stayed as an abuse of process or for the probe evidence to be excluded on the grounds of unfairness under section 78 of the Police and Criminal Evidence Act 1984 (“PACE” – see paragraph 120 below). Judge Lawler summarised the thrust of the defence submissions as follows: “... They say that the dishonest intention of the National Crime Squad from the start was to get inside Knaggs’ vehicle and record what he said on his mobile phone. They well knew that he used it extensively ... The reality was that their sole purpose was to hear those conversations. The Police knew that the rules forbade intrusive surveillance of this type (if that was the object). Equally, they knew that any material arising out of an interception by virtue of a warrant under Sec.5 [RIPA] (the only other way of hearing calls) could not be used in evidence. In order to get round that prohibition, and to enable the evidence to be used, they quite deliberately and deceitfully, and in bad faith, contrived to construct an application in such a way as to pull the wool over the eyes of their senior officers ... so as to gain lawful authorisation and, for that matter, renewal of that authorisation. They did this – say the Defence – by a mixture of false, misleading and disingenuous statements and exaggeration of the position both on the original application and the review document ...” 40. According to the defence, the whole process illustrated bad faith and thus the initial authorisation for the probe as well as the continuing authorisation following the review were unlawfully obtained. They pointed to a secret instruction given to police officers not to record their observations of the movements of Mr Knaggs. They contended that the integrity of the whole investigative process had been compromised by police misconduct and that no fair trial could take place if the police were found to have behaved in the way they alleged. Accordingly, they argued the indictment should be stayed. Alternatively, the probe evidence should be excluded because of the gross bad faith and dishonesty of the police in obtaining it and because its admission would have, in the circumstances, such an adverse effect of the fairness of the proceedings that the court ought not to admit it. 41. The court began hearing evidence on the voir dire on 25 October 2002. Further disclosure of material which the defence said went generally to the accuracy of the material contained in the applications for authorisation of the probe and to the credibility of the police officers involved in the probe application was ordered by Judge Lawler on 28 October 2002. 42. By letter dated 29 October 2002 Mr Campbell informed Mr Knaggs’ counsel that having conducted further analysis, he believed that the itemised telephone billing records produced by the prosecution were inadmissible or unreliable and unfair. A comparison of the police communications data and commercial communications data showed that 75 per cent of the records were different in at least one data element. In his view this showed that the two sets of records originated from different sources. 43. Evidence was heard on the voir dire from police officers involved in the surveillance operation and the Director General of the National Crime Squad, who had authorised the use of intrusive surveillance. On cross-examination by counsel for Mr Knaggs, the police officer who made the application denied lying when he asserted that meetings with criminal associates were taking place in the vehicle. He agreed that the police were aware that Mr Knaggs used his mobile phone regularly, but not necessarily that he used it extensively before the probe was fitted. He rejected the suggestion that directed surveillance could have been highly successful in respect of Mr Knaggs, emphasising that directed surveillance did not provide the police with evidence against Mr Knaggs sufficient to secure a conviction. He was unable to explain why a decision was taken not to record Mr Knaggs’ movements. 44. The senior investigating officer explained that he had been concerned about the number of one-sided conversations recorded during the deployment of the probe. However, recording one-sided calls had not been the sole purpose of the probe and in any event, the police were obtaining evidence and could therefore legitimately continue to use the probe notwithstanding the fact that the majority of the product was one-sided conversations. 45. The Director General emphasised that his authorisation of intrusive surveillance was not a rubber-stamping exercise. He dealt with the matter personally and exercised independent judgment. While he could not check every detail of the process and had to take certain matters on trust, he was assisted by members of staff who carried out checks and provided legal advice when required. He required a presentation by the requesting officer in an application of a particularly sensitive nature and also conducted random checks. He explained that the recording of one-sided calls occurred in many cases. If it were the only material being obtained from intrusive surveillance there would be cause for concern, but that was not the case in respect of the probe in Mr Knaggs’ car. He was satisfied that the relevant criteria had been met when he authorised the initial probe and the renewal. He had no cause to question the good faith of the officers making the application. 46. It was put to the officer who prepared the review document that, contrary to what he had indicated (see paragraph 7 above), 533 telephone calls and either 24 or 30 meetings had taken place in the vehicle between 25 February and 12 March. The officer explained that his figures were based on transcripts available at the time. Following an adjournment to allow him to investigate, he said that on his calculations there were 281 calls and about 30 meetings between the relevant dates. The figures in the review had been based on the period from 2 to 12 March, for an operational reason that he was unable to disclose. He denied that he had made up the explanation to cover up the inaccurate figures. 47. Judge Lawler summarised counsel for Mr Knaggs’ closing submissions to the court as follows: “Mr Ryder QC was characteristically trenchant in his criticism of the evidence of the National Crime Squad. He conceded that there can be no question of error or mistake. He nailed his colours firmly to the mast, of dishonesty and deceit. The National Crime Squad well understood the legal requirements and had cynically manipulated the applications to deceive the Director General, and so achieve their sole objective, which was to record what Knaggs said on his mobile, and thus get round the problems they knew a warrant under Sec.5 would create for them. He submitted that, even if the Prosecution evidence was accepted, the Crown had not come close to establishing that the probe was necessary and the exercise essential.” 48. Counsel for Mr Khachik’s submissions were summarised as follows: “Mr Smith submitted that the key question was whether the application [for the probe] was necessary ... The Crown and the Court had been very seriously misled by the National Crime Squad, who had abused the system. The only thing which changed in the lead-up to 12th of February was Knaggs’ acquisition of a new car.” 49. On 15 November 2002 Judge Lawler refused the defence applications. He noted: “In coming to my findings on the facts, I have also taken into account the following matters: 1. it is for the Crown to satisfy me, so that I am sure, that the criteria under [RIPA] were met at both the initial stage and for review purposes. 2. since allegations of bad faith are raised by the Defence, the Crown must, on all the material, completely rule out any question of dishonesty or bad faith. 3. all the evidence called on the voir dire and, in particular, the assessment of the honesty and reliability of those officers whose credibility is so seriously questioned. 4. the discrepancies and inconsistencies in the evidence, where they occur. 5. the skeletons and strong arguments forwarded by the Defence. 6. the oft repeated concerns of the Defence at the lack of disclosure as a result of the Public Interest Immunity Hearings and the constraints, out of necessity, which that has imposed on their questioning and probing of the witnesses, as well as their concerns often expressed of the lack of candour in relation to disclosure. ... 7. the great care I must exercise in my mind about that which I know and which the Defence do not in connection with the decision-making process. ... 8. applications of this kind are a substantial interference with privacy, and should only succeed where there are – and I am summarising the effect of the legislation – compelling reasons for doing so. ...” 50. He considered that the only way to deal with the defence handicap on the sensitive material which had not been disclosed to the defence was to say that the defence were “entitled to have it both ways”, namely that they could expect the court to act on anything it knew that helped them but not to act on anything that helped the prosecution. 51. He addressed first the question whether the intrusive surveillance of Mr Knaggs was necessary and, in particular, whether the information sought could reasonably be obtained by other means. He referred to the police’s belief that Mr Knaggs was familiar with police surveillance techniques, citing several examples which appeared to provide some support for this belief. He also noted that the police believed that they were dealing with a major criminal, and had to plan and proceed accordingly. He therefore accepted what was said in the probe application form in this regard, which was borne out by the comments made by Mr Knaggs in the recordings. He considered this to be the: “first and important point on the road to necessity, as well as proportionality.” 52. Next, Judge Lawler considered the defence arguments concerning the effectiveness of directed surveillance. He noted: “... Directed surveillance was feasible and useful when employed to observe other members of the conspiracy, but, for reasons I have already given, difficult and often impossible in the case of Knaggs. Its effectiveness was limited with regard to him, for example, because he did not handle drugs. The prospect of catching him with drugs was effectively nil.” 53. He continued: “The Police needed to collect hard evidence to convict him. As they candidly said in their application, it was necessary for them to collect such evidence, as opposed to information. The two things are quite different.” 54. He further noted that directed and intrusive surveillance were tools of investigation, both of which were more effective when carried out in tandem with the other. He observed: “... Directed surveillance may have been working within its own terms, but it is difficult to see how the substantial drugs seizures could have been made if the Police had not known what was going to happen. To know what was going to happen, they had to listen to conversations in the car. In this connection, one should bear in mind that, not only were they under an obligation to detect serious crime, but also to prevent it. They needed a means of predicting or tracing the travels of conspirators, and hence the shipment of drugs.” 55. As to the issues raised by the defence concerning the absence of observation material, Judge Lawler considered that there was no doubt that the attitude and behaviour of the senior investigating officer in instructing that no record be kept was open to severe censure and was a clear breach of the applicable code of practice (see paragraph 113 below). However, he was satisfied that there was no conspiracy or dishonesty among police officers on the question. 56. Regarding the intention of the police when making the application for the probe, Judge Lawler accepted that the police were aware that Mr Knaggs used his mobile phone a great deal. However, he considered that there was a reasonable expectation by the police that Mr Knaggs would hold meetings with fellow criminals in his car and there was a legitimate wish to obtain evidence of what was said during those meetings. In that sense, he considered the overhearing of one-sided calls to be incidental or subordinate to the purpose for which the authorisation was sought. The fact that in the event very useful telephone evidence was obtained did not affect the validity of the decision to apply for authorisation, to grant it, or to permit it to continue. The key factor was the purpose of the probe and not the result. In this regard he emphasised that the probe could not be “de-authorised” retrospectively simply because something unexpected happened. He was therefore satisfied that the police intention was to monitor meetings and not to use the probe to circumvent the prohibition on using interception material in evidence. 57. Similarly, while certain aspects of the review documents were completed carelessly, the judge was satisfied that the police officers were telling the truth on the voir dire and that there was no dishonesty. He continued: “...This was an ongoing operation, and a very serious one at that. The fact is that, whilst there were a large number of calls, the meetings had continued, and, thus, justification for the authority still stood.” 58. Applying the RIPA criteria, the judge had no doubt that the criteria relevant to the authorisation of intrusive surveillance, set out in section 32 RIPA (see paragraph 114 below), were fully satisfied. Accordingly, the authorisations were perfectly valid. 59. In setting out his conclusions on the abuse of process and section 78 PACE applications, the judge summarised the matters which in his view affected the question of the fairness of admitting the evidence: “1. There is a clear, and substantially unchallenged, record of what was said in Knaggs’ car. Very often tapes can be difficult to understand, and unfairness can result from conflicting interpretations of material which is unclear. That is singularly not the case here. 2. There is no element of entrapment. What Knaggs said is said quite voluntarily and quite uninfluenced by any Police Officer. 3. He made no comment to the Police when these matters were put to him, which, of course, he was perfectly entitled to do. However, he and the other Defendants who may be tied into the other ends of telephone conversations by mobile phone evidence and observations are particularly able to say what was being discussed. 4. Each Defendant alleged to be involved in a conversation can, if he wishes, deny that he was on the other end of that conversation, or assert what was being said was being taken out of context, or otherwise put innocent explanation, or some explanation, upon them. 5. All the tapes – not just those relied upon by the Prosecution – have been disclosed. Any Defendant can, therefore, put before the jury any passages upon which he relies, in order, for example, to show what the Prosecution allege has been taken out of context, or otherwise explain them. 6. Whilst the Prosecution case – which is, of course, charged as a conspiracy – places a good deal of reliance upon this material, it is not the sole evidence in the case. It should be noted, however, that the taped evidence is strong evidence in its own right ... 7. The admitted breaches of the codes of practice and admitted conduct of the Police Officers which had been the subject of censure – apart from the issue of bad faith – should be put in its proper context, and the question asked: taking both matters at their highest, what effect did they have, or would they have, on the fairness of a trial?” 60. He concluded: “None of the criticisms made, it seems to me, go anywhere near an attack on the reliability or probative value or cogency of the evidence in question. Nor is there any suggestion of the manipulation of the tape recording exercise, as sometimes does arise.” 61. In a note for counsel for Mr Knaggs dated 16 November 2002 Mr Campbell explained the results of further analysis of the billing information, highlighting inconsistencies in the information obtained from the prosecution compared to information obtained from the service provider. One inconsistency raised was the presence in the prosecution list of calls of “zero-length” calls, where no connection was made. Evidence from the provider indicated that such calls were not included in the billing records they issued and their presence in the prosecution data therefore raised questions as to the source. 62. By letter to counsel dated 24 November 2002 Mr Campbell drew attention to new evidence received as to police procedures on obtaining telephone record data which had shed some light on the inconsistencies observed. In particular, the method available to the police for automatically obtaining phone records generated call data in a different format to the formal inquiry system in which the provider issued data. The automated system for certain mobile phone operators did include zero-length calls in the output. The different methods of generating the data also helped explain inconsistencies regarding the duration of calls: the precise duration given in the automated records was rounded up in the billing records produced by the formal inquiry method. 63. On 27 November 2002, following legal advice that as a result of the sections 17-18 ruling he could not challenge the prosecution’s evidence by calling his expert evidence, Mr Knaggs pleaded guilty to the charge of conspiracy to supply a Class A drug. 64. On 2 December 2002, Mr Knaggs appeared before the judge. In relation to his plea, he said: “As you know, on Wednesday of last week, I entered a plea of guilty of conspiracy to supply Class ‘A’ drugs. I was well aware of the consequences and I was well aware that, in pleading guilty to such a charge, I am going to receive a quite substantial custodial sentence. I did plead guilty after consulting with my family, and I did it off my own back; I wasn’t pressured by my legal team in any way, but I was very carefully advised.” 65. However, he expressed concern at the circumstances in which he was pleading guilty: “My issues, your Honour, with that plea of guilty was that I felt that I was put in a no-win situation in relation to that plea of guilty. I feel that you know, with all due respect your honour, I feel that my chances of a fair trial were rendered absolutely impossible, and if I may say, I would like to briefly go into the reasons why I believe that. The first thing is, we, the defence, – I should say I, [the] defence – had strong forensic evidence to show that an interception of telephone communications took place ...” 66. Judge Lawler prevented him from going further, saying: “I am going to stop you there, because this is a matter, as you know, upon which I have ruled ... It is not open to you to ventilate this matter in open court. And so, if you have been advised to keep counsel about these matters, I advise you to do so. I am not prepared to hear any representations in relation to that matter.” 67. Mr Knaggs also said: “... I would also like to say, your Honour, that I’m not trying to stand here and portray myself as being some sort of an angel; I have pleaded guilty, and I was involved in crime, but I certainly wasn’t involved to the extent that the Prosecution are trying to say that was. And, like I say, your Honour, I was never able to prove that. And for my involvement in that crime, I am truly sorry. And if I could turn back the clock, I can guarantee that I would not be here today.” 68. On 5 March 2003 Mr Knaggs was sentenced to 16 years’ imprisonment. Confiscation proceedings were subsequently commenced against him. 69. In December 2003 Mr Knaggs made a formal application to vacate his guilty plea, which he abandoned after a two day hearing. He renewed his application formally on 15 December 2003, at which stage it was refused by the judge. 70. On 29 January 2003 Mr Khachik was convicted by a jury of conspiracy to supply a Class A controlled drug. The information obtained from the probe in Mr Knaggs’ car provided significant evidence against Mr Khachik. At trial, he did not seek to dispute the authenticity or reliability of the probe material. Instead, he sought to give an innocent explanation for the recordings in which he was implicated. 71. On 5 March 2003 Mr Khachik was sentenced to 19 years’ imprisonment. Confiscation proceedings were subsequently commenced against him. 72. Mr Khachik sought leave to appeal. On 1 July 2003 his application for leave to appeal was refused by the single judge. 73. In February 2003 Mr Campbell produced a further technical report to assist an intended appeal by Mr Knaggs. The report began with a summary of the position set out in previous reports, again advancing the hypothesis that the probe had been placed in the vehicle intentionally to collect evidence of calls being made by Mr Knaggs on his mobile phone. The report noted: “5. The circumstances of that application and the many misleading statements made by the NCS in obtaining and then continuing permission for intrusive surveillance, were explored extensively in a voir dire, and are set out in detail in the judgment ...” 74. It continued: “8. From the beginning, my view was that the placing of the probe in the Shogun was done intentionally to intercept telephone calls made by Knaggs – knowing when making the application that Knaggs conducted many mobile phone conversations from his (previous) vehicle, and that some of his conversations could be highly incriminating. [original italics] ... 13. The Courts are prohibited under s17 RIPA from allowing evidence to be sought or taken concerning the interception of communications. It is not therefore possible to examine how information obtained from the interception of communications might have influenced the making of an application for intrusive surveillance.” 75. Referring again to the extraneous signals found on the DAT tapes, Mr Campbell concluded that the police recording equipment was inadvertently recording unintended information. Two possibilities were proposed: “(1) The recorders were picking up a separate signal from a direct intercept on Knaggs’ phone which became (barely) audible when the direct line to the probe was lost. This is a well-known electrical phenomenon called crosstalk; (2) The telephone device used to connect to the probe was inadvertently picking up conversations within the secure listening room. If so, in simple terms the police were inadvertently recording their own conversations.” 76. In March 2004 a report was prepared on behalf of Mr Knaggs by Mr B. Clues, a chartered electrical engineer and consultant. Referring to voices on the tapes which did not appear to come from the target vehicle, Mr Clues noted that these appeared to be a contamination of the tapes. In his opinion, there was the possibility that the investigation and analysis of the unexplained recordings could produce evidence of, among other possibilities, tampering and editing of the recordings. He concluded that the material from the CDs which he had examined was not, in his view, consistent with assertions that there were no audio sources on the tapes other than from the probe. He considered that the recordings had characteristics which were consistent with being extracts of the original recordings or, alternatively, an edited version of original recordings. 77. Having analysed some of the DAT tapes’ contents, he noted that “unusual audio events” occurred when there was a loss of connection with the probe. Two types of audio source were nonetheless heard on the tapes during the loss of connection, namely voices which appeared to be related to the operation of the probe and voices which appeared to be that of a telephone call between Mr Knaggs and another person. Further, when the probe was active, sounds could be heard on the tapes which did not appear to be coming from inside the vehicle. He accepted that there could be an explanation for these unusual audio events, but indicated that detailed audio analysis was required to determine this. 78. In March 2005 a report by Mr C. Mills, director and senior consultant of Network Forensics, was prepared on the instructions of the prosecution. He noted, first, that all eight DAT tapes which he analysed contained continuous and uninterrupted recorded information for the respective periods which they covered. He further indicated that he had found only two sources of information on the DAT tapes: the input from the probe and speech from the handset at the monitoring station. He dismissed a number of Mr Clues’ conclusions as speculative and/or mistaken. 79. In April 2005, a further report was instructed by the defence on behalf of Mr Knaggs. The report was prepared by Ms E. McClelland, a consultant specialising in speaker identification and disputed language issues. A similar report was prepared on behalf of the prosecution by Mr A. Hirson, senior lecturer in phonetics at City University, London. Both reports considered the voices on an extract of the tapes and the voice of one of the police officers involved in the operation. Both considered it likely that one of the voices recorded in the extract was that of the police officer. 80. Mr Knaggs also lodged grounds of appeal against conviction, dated 7 November 2005, prepared by his solicitor. His grounds of appeal were split into two distinct grounds, which in turn were sub-divided into a number of different heads. The grounds noted: “The applicant even at an appeal cannot fully apprise the Court of the full facts giving rise to the unsafe conviction, because the evidence and associated material demonstrating the unreliability, illegality and subsequently inadmissibility of the Crown’s evidence cannot be adduced. In these circumstances there is an overwhelming need for a directions hearing. Directions will be sought as to how Mr Knaggs could adduce his evidence without falling foul of the statutory prohibition imposed under [RIPA and the Official Secrets Act].” 81. The first ground of appeal was that: “The Learned Judge erred in not allowing defence submissions to exclude evidence under Section 78 of the Police and Criminal Evidence Act 1984 and/or stay the proceedings for abuse of the Court’s process.” 82. The followings heads were identified within that ground: (i) the conduct of the police during the investigation and on the voir dire, namely concealment and dishonesty to justify retrospectively unlawfully obtained material; (ii) the true purpose behind the intrusive surveillance, namely to record the applicant using his mobile phone; (iii) the system used to transmit the product of the recording device and whether in essence it amounted to an interception of communications itself; (iv) the authenticity and integrity of the tape recordings, and the restrictions imposed by statute on disclosing the evidence which emerged during the voir dire; and (v) the authenticity and reliability of the telephone call data, for similar reasons. 83. In particular, as to the authenticity and integrity of the tape recordings, the grounds of appeal noted: “... in respect of the tape recordings there was, and remains, a significant challenge to the authenticity and legality of this material and the integrity of the system employed to record it. During the Voir Dire evidence was to emerge which would demonstrate that the integrity of the tape recordings could not be guaranteed and the product could not be relied upon. However, due to the restrictions imposed by statute, the reliability and legality of the tapes could not properly be explored, and the expert evidence could not be called and heard in Court, because to do so would offend the statutory prohibitions set out in [RIPA] ...” 84. The second ground of appeal was that: “As a result of the judge’s rulings giving rise to ground one, combined with the procedural problems imposed under statute which led to the legal advice that Mr Knaggs was prohibited from calling any of his evidence (which was to include scientific expert evidence), he pleaded guilty as he could not defend his case ... The Learned Judge was wrong not to permit Mr Knaggs to change his plea and defend his case in front of a jury.” 85. The followings heads were identified within that ground: (i) the entering of the guilty plea and the subsequent clarifications by the applicant of his acceptance of guilt (see paragraphs 63-65 above); (ii) the application to vacate the plea; and (iii) the learned judge’s refusal to hear a renewed application to vacate the plea (see paragraph 69 above). 86. In the written legal advice received by Mr Knaggs and lodged with the court in support of the need for directions, the grounds of appeal are summarised as follows: “1. The refusal of the Learned Judge to exclude all or substantial parts of the product of a covert listening device installed in a vehicle said to be used by Mr Knaggs, and/or to stay the proceedings as an abuse of Court process, and 2. The refusal of the Learned Judge thereafter to permit Mr Knaggs to revoke his plea of guilty.” 87. The document made it clear that the alleged anomalies contained in the recordings were apparent at a very early stage, and before the voir dire. 88. Mr Khachik renewed his application for leave to appeal before the full court. He sought to lodge amended grounds of appeal on 12 October 2005, intended to replace those drafted by trial counsel and considered by the single judge. He sought to rely on the amended grounds “in support of his renewed application for leave to appeal against conviction and sentence and his application to call fresh evidence”. Notwithstanding the reference to an application to call fresh evidence in his amended grounds of appeal, no formal application to call fresh evidence, in compliance with the Criminal Appeal Act 1968 and the relevant Criminal Procedure Rule and applicable practice directions (see paragraphs 132-135 above), was lodged. 89. Mr Khachik’s amended grounds of appeal, in outline, were: “(i) The judge should have stayed the indictment or excluded the evidence of the covert police tapes. The arguments for doing so were so strong and compelling that this court can properly interfere with the exercise of the judge’s discretion. In refusing the defence submissions, the judge reached conclusions of fact that were untenable on the evidence he had heard. (ii) There is now a body of technical evidence, unavailable to the applicant at trial, which shows that the tapes are contaminated with recordings from other sources. Knaggs’ voice can be heard during periods of signal loss to the probe. One of the recording sources is an interception of Knaggs’ mobile phone: s 17 of RIPA 2000 prohibits its use in evidence. New evidence also shows that Knaggs was not in his car, the site of the probe, when a significant proportion of the recordings occur. If this evidence had been available at trial, it would, or may, have had a decisive influence on the submissions to stay the indictment or exclude the evidence of the covert tapes. (iii) The new evidence sheds light on the way the probe functioned and demonstrates that it caused, of itself, an interception of Knaggs’ calls ... If the probe was an interception, s. 17 of RIPA renders the whole of its product inadmissible. (iv) New evidence, in the form of witness statements made after the applicant’s trial, tends to undermine and cast doubt on the evidence of [W.] ... (v) Other new evidence ... tends to show that the applicant’s conviction was unsafe.” 90. As regards ground (ii), the grounds explained that in the course of the confiscation proceedings against Mr Knaggs, a variety of expert reports had emerged, including reports by Mr Campbell and Mr Clues. Mr Khachik sought leave to rely on these reports, as well as further reports being prepared at the time, and statements from forty witnesses showing that Mr Knaggs was not in the vehicle on at least forty per cent of the occasions when his voice was said to be recorded on the probe. An affidavit signed by Mr Khachik’s solicitor during the trial attested to the fact that the solicitor did not receive a copy of any report by Mr Campbell, nor was she aware of the contents of any such report, until after Mr Khachik’s conviction. She also confirmed that neither she nor Mr Khachik’s counsel were aware that police officers’ voices were recorded on the DAT tapes. 91. Mr Knaggs’ skeleton argument, prepared by senior counsel and dated 24 April 2006, summarised the defence at trial as: “... a denial and an attack on the admissibility of the probe evidence and on the credibility of the police officers generally.” 92. The skeleton argument referred to the analysis of the DAT tapes by Mr Campbell and the alleged presence of extraneous signals, noting: “It followed that the covert recording device was not necessary for the police to gain intelligence about the Applicant’s activities as better quality intelligence was being obtained from the intercept. ... It further followed that this evidence also cast serious doubt as to the veracity of the police evidence generally and in particular when the police had maintained that ‘conventional surveillance is therefore not feasible in the circumstances’ in order to get authority for the probe. It also followed ... on the basis of the defence expert evidence that by disclosing the probe evidence the police officers concerned had breached section 17 [RIPA].” 93. The skeleton argument explained that the defence wished to rely on the expert evidence for the following reasons: “(a) it went to admissibility: material existed that an interception had taken place. The fact of the intercept was directly relevant to the integrity of the applications for authorisation to deploy intrusive surveillance and to the admissibility of evidence arising out of such surveillance. Assertions in the applications for authorisation to conduct intrusive surveillance that the information could not reasonably be obtained by other means and the action sought to be achieved could not reasonably be achieved by other means were untenable, inaccurate, wrong and misleading ... (b) it went to the integrity of the tape recordings themselves as the extraneous signals could be evidence of tampering. (c) it went to the reliability of the probe evidence generally. (d) It went to the [credibility] and bona fides of the police officers involved in connection with the probe evidence. (e) it went to the integrity of the procedures adopted generally ... If the interception was made under a RIPA warrant then it was possible that the purpose of planting the listening device was to enable the police to evade the restrictions in the RIPA and adduce the fact of the intercept evidence in the proceedings. (f) it went to the integrity of the police officers generally ...” 94. As to the effect of the trial judge’s rulings on sections 17 and 18 RIPA and section 78 PACE, the skeleton argument stated: “The consequences of the Judge’s rulings was that the Applicant could not raise as an issue that there had been an intercept disclosed by the Prosecution as part of the covert recordings and telephone cell data or even mention it. This meant that he was unable to challenge the veracity of the probe evidence by calling expert witnesses and he was so advised. This was a breach of Article 6. The Defence was prohibited from calling their expert evidence. The Defence could not question technical experts called by the Prosecution. The Defence could not challenge the admissibility of the probe evidence. The Defence could not cross-examine the police officers responsible for the probe on this issue as to [credibility]. The Defence could not seek to show that the police officers had acted illegally with regard to the probe evidence. ... It follows that the Judge misinterpreted Section 18 and took a wrong approach and this view of section 18 constituted a breach of Article 6.” 95. The skeleton argument further clarified that the evidence which it was suggested should be before the Court of Appeal was the evidence excluded by the 25 October 2002 ruling, and not further evidence discovered since that ruling. It continued: “As the matter stands the Defence has not disclosed to the Court or Prosecutor: a. the expert reports of Mr Campbell. b. the expert reports of Mr Clues. c. statements from approximately 40 witnesses. As to the reports of Mr Campbell – some of these reports were available at the time of the Voir Dire decision but they could not be received in evidence by reason of the Judge’s decision. In these premises it is submitted that these reports could be additional evidence and receivable by the Court on this basis. The same applies to the reports of Mr Clues ... The approximately 40 witnesses all deal with particular incidents to discredit the probe evidence. The Applicant had supplied the names and in most cases the addresses of these witnesses to his then solicitors. As at the date of the plea of guilty his then solicitors had not obtained statement from any of these witnesses. These witnesses would have been able to give evidence despite the Judge’s ruling. It is submitted that in these circumstances these witnesses were not available at the date of trial and could be called as additional evidence before this Court.” 96. The skeleton argument concluded: “Bearing in mind the suggested illegality and alleged contravention of Section 17 the Applicant seeks directions as to how to present this part of the case if necessary.” 97. The Court of Appeal refused Mr Knaggs’ request to give directions in the case. It considered that directions were not necessary unless and until leave was granted. 98. Mr Khachik’s skeleton argument, dated 3 May 2006 and prepared by senior counsel, clarified in its introduction: “Additional evidence sought to be relied on is: a. The expert reports from Campbell and Clues, also referred to by Knaggs. b. Evidence from witnesses within the Mitsibushi shogun, also relied on by Knaggs. c. Holt and Martin statements impacting of [W.]’s testimony. d. The affidavit of [Mr Khachik’s solicitor at trial] and letters of trial counsel.” 99. The skeleton argument also reiterated the argument advanced by the defence during the voir dire that authority for the probe was wrongly granted, that the police officers had acted dishonestly in applying for authority and that the probe was intended to record the calls in order to circumvent the prohibition on intercept evidence being used as evidence. Mr Khachik further denied that at any time prior to trial he was aware that there were unexplained voices on the DAT tapes. The skeleton continued: “The applicant thus submits: i. the evidence relating to voices on tapes and other recording sources should have been disclosed and were not. Equally if any reports from Campbell had been served before [Mr Khachik]’s trial he should have been served with them. ii. [Mr Khachik] conducted the voir dire and his trial relying on their integrity. He had not been in the car nor is heard on the tapes. iii. The question mark over the tapes would have been the last straw for a judge clearly already very concerned as to the state of the evidence he was being presented with. iv. If the jury were aware that the main evidence had been tampered with, it is unlikely that they would have accepted the evidence of the police.” 100. The skeleton argument for the prosecution, dated 21 April 2006, referred to the defence submissions during the voir dire, noting: “... At no stage was there any challenge to the proposition that, so far as was material, the source of the voices recorded on some 450, 2 hour, DAT tapes was conversation in Mr Knaggs’ car. Nor was there any allegation of the kind which Mr Knaggs now makes that the tapes were a fabrication composed of recordings from different sources. Even if the judge’s ruling of 25th October 2002 was wrong, and I submit that it was not, it did nor prevent the defence from calling evidence to prove that there were signs that the tapes were fabricated or that Mr Knaggs’ voice was not on them. In the event the evidence of the officers who were responsible for recording and sealing the tapes was never challenged and Mr Knaggs did not seek to call any of the 40 witnesses he now says are available to prove that he was not in the car when the tapes indicated that he was.” 101. It continued: “... At some of the many hearings involving Mr Knaggs it has been suggested that because some of the DAT tapes allegedly contain words derived from an intercept those tapes are inadmissible. I should make it clear that the prosecution categorically deny that this is the case but even if it is, it would not affect the admissibility of the great body of the recordings. The telephone records relied on by the Crown did not include any material associated with an intercept if there was one. It consisted of material produced by the service providers although a small part of it had originally been produced as what is known as intelligence billing during the course of the enquiry and was in a different format to the normal ....” 102. An appeal hearing took place on 10 and 11 May 2006. According to the judgment of the Court of Appeal, at the oral hearing the applicants submitted, first, that the judge’s ruling in relation to the application of sections 17 and 18 RIPA was wrong in law and effectively amounted to a breach of their right to a fair trial under Article 6 of the Convention; second that the judge was wrong to refuse the application to stay the proceedings as an abuse of process or, alternatively, to permit the evidence under the probe to be produced in evidence; and third, that there was now evidence that W. had been lying in the course of the evidence that he had given at the trial. Mr Knaggs further submitted that he should be entitled to vacate his guilty plea. Similarly, a summary of the hearing prepared by prosecution counsel and dated 19 May 2006, provided to the Court by Mr Khachik in support of his application, indicates that the oral applications for leave to appeal were made on the grounds that: “(a) H.H. Judge Lawler Q.C. was wrong to rule that he had no power to order the prosecution to disclose whether or not there was an interception in this case; (b) that if the ruling referred to in (a) was correct it made the trial unfair within the meaning of Article 6 of the [Convention]; (c) that the judge was wrong to rule that the probe tapes were admissible; (d) in the case of Knaggs, that the judge was wrong to reject his application to change his plea and (e) in the case of Khachik that fresh evidence existed to throw doubt on the credibility of [W.]”. 103. Leave to appeal was refused on 11 May 2006. Summarising the evidence against the applicants, Lord Justice Latham, delivering the judgment of the court, noted: “12. The evidence against the applicants fell essentially into three parts. Firstly, there was what might be called ordinary surveillance evidence; that is, evidence of what the police saw and heard over a period from the middle of January to 5th April 2002. It is not necessary for the purposes of this judgment to go in detail through that evidence, but we shall touch on it when dealing with the overall story. The second part of the evidence was the evidence obtained from a probe which had been placed in Russell Knaggs’ Mitsubishi Shogun car on or about 25th February 2002. That probe picked up all conversations within the car and also Russell Knaggs’ end, if one can put it that way, of mobile telephone conversations. Finally, there was the evidence of [W.]. 13. Put together, that evidence showed that these applicants were clearly closely connected. There was abundant evidence of meetings, abundant evidence of telephone conversations, and, as we shall see, there were occasions when members of the conspiracy were caught in possession of drugs.” 104. As to Judge Lawler’s ruling on the applicants’ application relating to sections 17 and 18 RIPA, Latham LJ noted: “27. It is important to put that application in its context. By then, the position was that the material which had been obtained from the probe, which had been recorded initially on two tapes, one of which was the master tape and the other was the working tape, had been re-recorded from the working tape to provide copies of what had been heard to any defendant who wished to have a copy and check it. And transcripts had been made from those tapes and of course were available. It is apparent from the material that we have that three reports on those tapes had been provided to those advising Russell Knaggs by a Mr Campbell by the date upon which the ruling with which we are concerned was made. At no time at that stage was it apparent that any challenge was going to be made to the reliability or accuracy of either the tapes, the copies or the transcripts, or at least no relevant ones. As far as Russell Knaggs was concerned, there was indeed no defence statement. 28. The nature of the application that was made in those circumstances is of some importance. What was being suggested was that the reports from Mr Campbell had identified the possibility of an intercept ..., the existence of such an intercept being prima facie protected from disclosure in any form under section 17 of the Act. 29 Mr Ryder QC, who was appearing for Russell Knaggs at the time, in the first place was asking for, in effect, disclosure of whether or not an intercept had taken place. The context in which he made that application was (as one can see from page 163 of the transcript) in order to enable him to put forward an argument in relation to the installation of the probe that it was not necessary for the probe to be installed, which is a requirement under Part II of that Act, on the basis that the intercept would be able to inform surveillance in a way which would mean that it was not necessary for the probe to be installed. The application was undoubtedly understood in that way by the judge. And when Mr Ryder’s submissions were distilled, they came to a request for either an admission that an intercept had taken place, together with the dates over which it was active, or confirmation that no such intercept had occurred. He and other counsel expressly eschewed making any request for what might be called the content of any intercepts that may have taken place. It follows that the judge was essentially only concerned with the question of whether or not it was permissible to answer the two questions which were posed by Mr Ryder. Section 17, Mr Garside QC submitted to the judge on behalf of the prosecution, precluded the judge from answering those questions, or requiring any other person to answer those questions. The judge agreed, and in our judgment that conclusion was entirely correct.” 105. Latham LJ noted that the applicants submitted before the Court of Appeal that the sections 17 and 18 ruling had produced substantial unfairness because they were precluded from being able to put before the jury material which might have in some way undermined the integrity of the probe material. He continued: “32. ... But, as will have been appreciated from what we have already said, that was not the basis upon which the application was made. It was clearly made in order to support at that stage the argument that the application for the installation of the probe had not been a proper application because the material could have been obtained in some other way.” 106. He noted: “34. The application, however, does raise this matter ... namely that there was material in the evidence of Mr Campbell which arose out of his conclusion that there might have been an intercept which could be said to have been material which could have undermined the prosecution assertion that the taped material was material which could be relied upon as being an accurate recording and transcription of the material obtained by the probe and the probe alone. 35. For the reasons that we have given, that does not strictly arise as a problem in this case because that was not what was being submitted at the time. But it seems to us to be necessary to say that, when one looks at the material upon which that assertion is based, it is difficult to see how, ultimately, it could have cast any real doubt upon the reliability of the probe evidence overall. But that is an aside for the purposes of these applications. And, in particular, that comment only relates to the three reports in existence at that time. Accordingly, as far as the applications are based on the judge’s ruling in relation to sections 17 and 18, the submissions do not succeed.” 107. The court also found that the decision not to stay the proceedings did not result in the applicants’ trial being unfair, emphasising at the outset: “36. ... It is important, it seems to us, to repeat what we said earlier, which is at this stage in the proceedings there was no challenge to the reliability of the evidence produced by the probe, and it was on that basis that the judge approached the matter. 37. Although there was no challenge to the integrity, so to speak, of the material produced by the probe, there was a root and branch attack on the credibility and behaviour of the three police officers who gave evidence and who were the main police protagonists in relation to this aspect of the case ...” 108. Nor did the decision to admit the probe evidence result in unfairness: “45. Turning to the ruling in relation to section 78, it is important to remind ourselves once again that at this stage there was no challenge to the integrity of the material produced by reason of the probe. As the judge himself said: in those circumstances how could it be unfair for this material to go before the jury? The defendants were in a position to explain what was heard on the tapes as being innocent, if they could; they were in no way precluded from doing so. They could, for example, have called evidence in relation to the people who were at the other end of the telephone conversations if it was considered that it was necessary in the interests of their defence to do so. It is significant to note in that context that part of the application before us today from Russell Knaggs is an application to call 40 witnesses to say that the telephone conversations either did not take place when they were said to have taken place or were in a different form, or, alternatively, were related to matters other than drugs matters. Those were all witnesses available to Mr Knaggs and his advisers at the time had they wished to call them. Clearly, in those circumstances there could be no unfairness arising out of the admission of what was evidence which had not been obtained by way of entrapment or vitiated in any other way of that sort. It follows that the challenge insofar as it relates to the judge’s rulings in that respect must also fail.” 109. Leave was also refused in respect of the remaining grounds of appeal. 110. In late 2009 the Serious Organised Crime Agency (“SOCA”) suspected, on reasonable grounds, that Mr Knaggs, in detention at HMP Lowdham Grange, was involved with others in a conspiracy to import cocaine into the United Kingdom. On 11 November 2009 a number of arrests were made. At the request of SOCA, prison security entered Mr Knaggs’s cell and removed him to the segregation unit. He remained in the segregation unit until 20 November 2009. 111. During Mr Knaggs’ absence from his cell, prison security and SOCA searched the cell. The search was carried out under lawful authority and all material within the cell, including legal correspondence, was seized and placed in bags with tamper-proof seals. This was done pending an examination of the material by independent counsel, whose task it was to identify any items subject to legal professional privilege, which were then returned to Mr Knaggs. The exercise produced disputed material, which was subsequently held for assessment by a Circuit Judge. 112. Section 28 of the Regulation of Investigatory Powers Act 2000 (“RIPA”) provides for the authorisation of directed surveillance, i.e. covert surveillance involving observing an individual in public. Section 28(2) provides that such authorisation should not be granted unless the police officer believes that the authorisation is “necessary” and that the surveillance is proportionate to what is sought to be achieved by carrying it out. Authorisation is “necessary” for the purposes of section 28(2) if it is necessary, inter alia, (a) in the interests of national security; (b) for the purpose of preventing or detecting crime or of preventing disorder; (c) in the interests of the economic well-being of the United Kingdom; or (d) in the interests of public safety. 113. Under paragraph 4.1 of the Code of Practice adopted pursuant to section 23 of the Criminal Procedure and Investigations Act 1996, the officer in charge of an investigation must ensure that material relevant to the investigation is recorded in a durable or retrievable form. 114. Under section 32(1) RIPA, senior authorising officers are given the power to grant authorisations for carrying out intrusive surveillance, i.e. surveillance which involves observing an individual in private or which is carried out by means of a surveillance device. Section 32(2) provides that such authorisation should not be granted unless the officer believes that the authorisation is “necessary” and that the surveillance is proportionate to what is sought to be achieved by carrying it out. Authorisation is “necessary” for the purposes of section 32(2) if it is necessary (a) in the interests of national security; (b) for the purpose of preventing or detecting serious crime; or (c) in the interests of the economic well-being of the United Kingdom. Section 32(4) requires that in considering whether the test in section 32(2) has been met, the officer should consider whether the information which it is thought necessary to obtain by intrusive surveillance could reasonably be obtained by other means. Under section 43(4), authorisation of intrusive surveillance can be renewed. Prior to any renewal, there must be a review. 115. Section 93 of the Police Act 1997 also provides for authorisation for police action if it is necessary for the action specified to be taken for the purpose of preventing or detecting serious crime and the taking of the action is proportionate to what the action seeks to achieve. 116. Section 1(1) RIPA makes it an offence intentionally and without lawful authority to intercept any communication in the course of transmission by a public telecommunications system. Pursuant to section 1(5)(b) an intercept will have lawful authority if it occurs in accordance with a warrant under section 5. Section 5(1) allows the Secretary of State to issue a warrant to secure the interception of communications described in the warrant. Section 5(2) provides that a warrant shall not be issued unless the Secretary of State believes that the warrant is “necessary” and that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct. Under section 5(3), a warrant is “necessary” if it is necessary, inter alia, (a) in the interests of national security; or (b) for the purpose of preventing or detecting serious crime. Section 5(4) requires that in considering whether the test in section 5(2) has been met, the Secretary of State should consider whether the information which it is thought necessary to obtain under the warrant could reasonably be obtained by other means. 117. Section 19 RIPA imposes a duty on specified persons to keep secret, inter alia, the existence and content of an interception warrant; the details of its issue and any renewal; the steps taken in pursuance of the warrant; and everything in the intercepted material and any “related communications data”. Those subject to this obligation include anyone holding office under the Crown. Section 19(4) establishes that disclosure in contravention of the section constitutes an offence. 118. Section 20 RIPA defines “related communications data” in this context as so much of any communications data as are obtained by, or in connection with, the interception and relate to the communication or to the sender or recipient, or intended recipient, of the communication. “Communications data” are defined in section 21(4) RIPA as traffic data comprised in or attached to a communication for the purposes of any telecommunications system by means of which they are being or may be transmitted; any information which includes none of the contents of a communication and is about the use made by a person of a telecommunications service or in connection with the provision to or use by a person of a telecommunications service; or any information not otherwise included that is held or obtained by a person providing a telecommunications service in relation to persons to whom he provides the service. 119. Section 4 of the Official Secrets Act 1989 provides: “(1) A person who is or has been a Crown servant or government contractor is guilty of an offence if without lawful authority he discloses any information, document or other article to which this section applies and which is or has been in his possession by virtue of his position as such. (2) This section applies to any information, document or other article— (a) the disclosure of which— (i) results in the commission of an offence; or (ii) facilitates an escape from legal custody or the doing of any other act prejudicial to the safekeeping of persons in legal custody; or (iii) impedes the prevention or detection of offences or the apprehension or prosecution of suspected offenders; or (b) which is such that its unauthorised disclosure would be likely to have any of those effects. (3) This section also applies to— (a) any information obtained by reason of the interception of any communication in obedience to a warrant issued under section 2 of the Interception of Communications Act 1985 or under the authority of an interception warrant under section 5 of the Regulation of Investigatory Powers Act 2000, any information relating to the obtaining of information by reason of any such interception and any document or other article which is or has been used or held for use in, or has been obtained by reason of, any such interception...” 120. Section 78 of the Police and Criminal Evidence Act 1984 (“PACE”) provides: “(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. (2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.” 121. Section 17 RIPA covers the admissibility of evidence relating to or obtained from an interception warrant. Section 17(1) provides that: “Subject to section 18, no evidence shall be adduced, question asked, assertion or disclosure made or other thing done in, for the purposes of or in connection with any legal proceedings which (in any manner)– (a) discloses, in circumstances from which its origin in anything falling within subsection (2) may be inferred, any of the contents of an intercepted communication or any related communications data; or (b) tends (apart from any such disclosure) to suggest that anything falling within subsection (2) has or may have occurred or be going to occur.” 122. Section 17(2) refers to: “(a) conduct by a person falling within subsection (3) that was or would be an offence under section 1(1) or (2) of this Act or under section 1 of the Interception of Communications Act 1985; (b) a breach by the Secretary of State of his duty under section 1(4) of this Act; (c) the issue of an interception warrant ...; (d) the making of an application by any person for an interception warrant ...; (e) the imposition of any requirement on any person to provide assistance with giving effect to an interception warrant.” 123. Section 17(3) sets out the persons referred to in section 17(2): “(a) any person to whom a warrant under this Chapter may be addressed; (b) any person holding office under the Crown; (c) any member of the National Criminal Intelligence Service; (d) any member of the National Crime Squad; (e) any person employed by or for the purposes of a police force; (f) any person providing a postal service or employed for the purposes of any business of providing such a service; and (g) any person providing a public telecommunications service or employed for the purposes of any business of providing such a service.” 124. Section 18 RIPA sets out exceptions to section 17 RIPA. The relevant subsections of section 18 provide that: “(7) Nothing in section 17(1) shall prohibit any such disclosure of any information that continues to be available for disclosure as is confined to— (a) a disclosure to a person conducting a criminal prosecution for the purpose only of enabling that person to determine what is required of him by his duty to secure the fairness of the prosecution; or (b) a disclosure to a relevant judge in a case in which that judge has ordered the disclosure to be made to him alone. (9) Subject to subsection (10), where in any criminal proceedings— (a) a relevant judge does order a disclosure under subsection (7)(b), and (b) in consequence of that disclosure he is of the opinion that there are exceptional circumstances requiring him to do so, he may direct the person conducting the prosecution to make for the purposes of the proceedings any such admission of fact as that judge thinks essential in the interests of justice. (10) Nothing in any direction under subsection (9) shall authorise or require anything to be done in contravention of section 17(1).” 125. The Interception of Communications Code of Practice, adopted pursuant to section 71 RIPA, provides guidance as to the application of sections 17 and 18 RIPA. At Chapter 7, the Code states: “7.3 The general rule is that neither the possibility of interception nor intercepted material itself plays any part in legal proceedings. This rule is set out in section 17 of the Act, which excludes evidence, questioning, assertion or disclosure in legal proceedings likely to reveal the existence (or the absence) of a warrant issued under this Act (or the Interception of Communications Act 1985). This rule means that the intercepted material cannot be used either by the prosecution or the defence. This preserves ‘equality of arms’ which is a requirement under Article 6 of the European Convention on Human Rights.” 126. The Code goes on to consider the operation of the exceptions set out in section 18: “7.4 Section 18 contains a number of tightly-drawn exceptions to this rule. This part of the Code deals only with the exception in subsections (7) to (11). 7.5 Section 18(7)(a) provides that intercepted material obtained by means of a warrant and which continues to be available, may, for a strictly limited purpose, be disclosed to a person conducting a criminal prosecution. 7.6 This may only be done for the purpose of enabling the prosecutor to determine what is required of him by his duty to secure the fairness of the prosecution. The prosecutor may not use intercepted material to which he is given access under section 18(7)(a) to mount a cross-examination, or to do anything other than ensure the fairness of the proceedings. ... 7.9 If intercepted material does continue to be available at the prosecution stage, once this information has come to the attention of the holder of this material the prosecutor should be informed that a warrant has been issued under section 5 and that material of possible relevance to the case has been intercepted. ... 7.11 Section 18(7)(b) recognises that there may be cases where the prosecutor, having seen intercepted material under subsection (7)(a), will need to consult the trial Judge. Accordingly, it provides for the Judge to be given access to intercepted material, where there are exceptional circumstances making that disclosure essential in the interests of justice. 7.12 This access will be achieved by the prosecutor inviting the judge to make an order for disclosure to him alone, under this subsection. This is an exceptional procedure; normally, the prosecutor’s functions under subsection (7)(a) will not fall to be reviewed by the judge. To comply with section 17(l), any consideration given to, or exercise of, this power must be carried out without notice to the defence. The purpose of this power is to ensure that the trial is conducted fairly. 7.13 The judge may, having considered the intercepted material disclosed to him, direct the prosecution to make an admission of fact. The admission will be abstracted from the interception; but, in accordance with the requirements of section 17(l), it must not reveal the fact of interception. This is likely to be a very unusual step. The Act only allows it where the judge considers it essential in the interests of justice. 7.14 Nothing in these provisions allows intercepted material, or the fact of interception, to be disclosed to the defence.” 127. In Attorney General’s Reference No. 5 of 2002 [2004] UKHL 40, the House of Lords was asked for its interpretation of the prohibition in section 17(1) RIPA. The reference arose from legal proceedings in a criminal case which took place before the entry into force of RIPA when interception was regulated by the Interception of Communications Act 1985 (“ICA”). Although the ICA had introduced regulation for interception of public telecommunications systems, interception of private telecommunications systems remained unregulated under the ICA regime and no warrant was required for such interception. The question asked centred on whether, and if so to what extent, a criminal court could investigate whether intercept material relied on by the prosecution had been obtained by intercepting a private, as opposed to a public, telecommunications system. During a criminal trial, the prosecution had sought to admit evidence arguing that interception had taken place on a private telecommunications system. The defence case was that the interception had taken place on a public telecommunications system and so the evidence was inadmissible. At the trial, the defence submitted that section 17 RIPA prevented them from asserting that the interception had taken place on a public system, but did not prevent the prosecution from adducing evidence that it had taken place on a private system. The defence asked the judge under section 78 PACE to exclude prosecution evidence that the interception had taken place on a private system, on the grounds that it would not be fair to admit that evidence and shut out the defence case to challenge that the interception had taken place on a private system. The judge acceded and as a result, the prosecution were obliged to offer no evidence and the defendants were acquitted. 128. Lord Bingham of Cornhill delivered the leading judgment in Attorney General’s Reference No. 5 of 2002. He concluded: “ 20. The inclusion in section 17(2) of an offence under section 1(2) of the Act poses an obvious problem of interpretation given the very sweeping language in which section 17(1) is expressed. The requirement in section 17(2)(a) that the conduct must be by a person falling within subsection (3), and the listing in that subsection of persons and bodies involved in the warrantry regime, strongly suggest that the focus of the prohibition is, as in the 1985 Act, on that regime. It is also relevant to recall that interception of a private telecommunication system is only criminal under section 1(2)(a) if without lawful authority and section 18(4) expressly provides that section 17(1)(a) shall not prohibit the disclosure of the contents of a communication if the interception of that communication was lawful by virtue of section 3 or section 4. In other words, disclosure is not prohibited if the interception was lawfully authorised under those sections. It would be absurd to conclude that there could be no enquiry to establish whether the interception was lawfully authorised or not, and whether or not the interceptor’s conduct was excluded from criminal liability under section 1(6) ... Given the obvious public interest in admitting probative evidence which satisfies the requirements of sections 1(6), 3 and 4, and the absence of any public interest in excluding it, I am satisfied that a court may properly enquire whether the interception was of a public or private system and, if the latter, whether the interception was lawful. If the court concludes that it was public, that is the end of the enquiry. If the court concludes that it was private but unlawful, that also will be the end of the enquiry. If it was private but lawful, the court may (subject to any other argument there may be) admit the evidence. 129. Lord Nicholls of Birkenhead, noting that the principal objective of section 17 appeared to be to preserve the secrecy of the warrant system, considered that the warrant system would not be damaged where, for example, a challenge by the defendant to the assertion that the interception had been lawful under section 3(1) (consent of both parties to the interception) suggested that an offence had been committed under section 1 (see paragraph 116 above). He considered that section 18(5) permitted a challenge to the lawfulness of the interception by the defence. 130. Lord Steyn noted: “31. It is true, as Lord Bingham has pointed out, that the inclusion in section 17(2) of an offence under section 1(2) of the Act creates a linguistic difficulty given the language in which section 17(1) is expressed. In my view, however, this point is decisively outweighed by a purposive interpretation of the statute. No explanation for resorting to purposive interpretation of a statute is necessary. One can confidently assume that Parliament intends its legislation to be interpreted not in the way of a black letter lawyer, but in a meaningful and purposive way giving effect to the basic objectives of the legislation. So approached the answer to the central question is obvious: a court may enquire into the question whether tapping took place on a private system.” 131. In R (on the application of Noone) v.The Governor of HMP Drake Hall and another [2010] SC 30, Lord Mance applied Attorney General’s Reference No. 5 of 2002, noting: “75. In Attorney-General’s Reference (No. 5 of 2002) ... the House, in view of the absurdity that would otherwise result, refused to give its literal interpretation to a statutory provision which, literally read, precluded the defence from asking questions to establish that there had been interception (consequently illegal) on part of a public telecommunications system, but allowed the prosecution to call evidence to the effect that the interceptions had taken place wholly within a police private telecommunications system (and were therefore legal). The linguistic difficulty was ‘decisively outweighed by a purposive interpretation of the statute’ ...” 132. Section 23 of the Criminal Appeal Act 1968 (“the 1968 Act”) provides for the lodging of fresh evidence in the context of a criminal appeal: “(1) For the purposes of an appeal under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice— (a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to them necessary for the determination of the case; (b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court, whether or not he was called in those proceedings; and (c) receive any evidence which was not adduced in the proceedings from which the appeal lies.” 133. Pursuant to section 23(2), the Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to: “(a) whether the evidence appears to the Court to be capable of belief; (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.” 134. The Criminal Procedure Rules 2005 applicable at the time of the appeal provided, at Rule 68.15: “(1) Notice of an application by the appellant ... – (a) that a witness who would have been a compellable witness at the trial be ordered to attend for examination by the court; or (b) that the evidence of a witness be received by the court; shall be in the form set out in the Practice Direction and shall be served on the Registrar; save that where a notice of an application under sub-paragraph (a) or (b) is given together with a notice of appeal or notice of application for leave to appeal, it shall be served on the Crown Court officer. (2) An application as aforesaid may be made to the court orally.” 135. The Lord Chief Justice’s Consolidated Criminal Practice Direction indicated that the relevant form which had to be completed in respect of an application for fresh evidence was “Form W”. The details to be included in Form W were the name and address of the appellant, the particulars of the witness, the evidence to be given by the witness together with a copy of the witness statement and an explanation of why the evidence was not given at trial. 136. Considering the operation of section 23 of the 1968 Act in R v. Pendleton [2001] UKHL 66, Lord Bingham of Cornhill noted: 10. There was no real issue between the parties to this appeal concerning the construction of section 23(1) and (2). The term ‘receive’ is used to describe the formal act of admitting the evidence referred to before the Court of Appeal. Deciding whether or not to receive the evidence is the first task the court must usually undertake when application is made that it should do so under section 23(1)(c). In considering whether or not it should receive such evidence, usually called ‘fresh evidence’, the court must have regard in particular to the matters listed in (2)(a)(d). These are matters to which, as practice had developed over the years, the courts had come to pay attention: see R v Parks [1961] 1 WLR 1484 at 1486-1487. They are matters of obvious significance. When considering an application to receive the fresh evidence of a witness, the court will have before it a written statement of the evidence which the witness will give: see form 6, prescribed by rule 3 of the Criminal Appeal Rules 1968 (SI 1968 No 1262). If the statement does not appear to the court on reading it to be even capable of belief, there will be little purpose in proceeding further. The statement may be obvious nonsense. Similarly, if it does not appear to the court when it reads the statement that it might, even if fully accepted, afford any ground for allowing the appeal (that is, for thinking that the conviction may be unsafe) there will again be little point in proceeding further. It is obviously relevant to consider whether the fresh evidence would be admissible at the trial, although the Court of Appeal has held that section 23(1)(a) is not limited to admissible evidence (R v D and J [1996] 1 CrAppR 455). The Court of Appeal will always pay close attention to the explanation advanced for failing to adduce the evidence at the trial, since it is the clear duty of a criminal defendant to advance any defence and call any evidence on which he wishes to rely at the trial. It is not permissible to keep any available defence or any available evidence in reserve for deployment in the Court of Appeal. Thus the practice of the court is to require a full explanation of the reasons for not adducing the evidence at the trial (R v Trevor [1998] CrimLR 652). It is however clear that while the court must, when considering whether to receive fresh evidence, have regard in particular to the matters listed in section 23(2)(a)-(d), and while in practice it is most unlikely to receive the evidence if the requirements of (a), (b) and (c) are not met, the court has an overriding discretion to receive fresh evidence if it thinks it necessary or expedient in the interests of justice to do so.” | 0 |
dev | 001-68089 | ENG | TUR | ADMISSIBILITY | 2,004 | CIFTCI v. TURKEY | 1 | Inadmissible | null | The applicant, Mr Abdullah Çiftçi, is a Turkish national who was born in 1955 and lives in Ankara. He was represented before the Court by Mr H. Solhan, a lawyer practising in Ankara. In a letter of 26 July 2000 to the Religious Affairs Department (“the Department”) the applicant complained that under domestic legislation, anyone attending Koranic study classes had to be at least twelve years old (at the material time that was the normal primary-school leaving age). As his son did not satisfy that requirement, the applicant requested dispensation to enrol him in religious-study classes of that kind. In his letter the applicant also referred to Articles 9 and 14 of the Convention. In a letter of 1 August 2000 the Department replied that section 3 of Law no. 4415 required students enrolling in such classes to have obtained the primary-school leaving certificate and refused the applicant's request. Section 3 of Law no. 4415, supplementing the Religious Affairs Department (Establishment and Functions) Act (Law no. 633), provides: “The Religious Affairs Department shall afford those wishing to learn about the Koran and its interpretation and to increase their knowledge of religion the opportunity to attend Koranic study classes, outside the compulsory religious-education lessons at primary and secondary schools, provided that they have obtained the primary-school leaving certificate. ...” | 0 |
dev | 001-58237 | ENG | FRA | CHAMBER | 1,998 | CASE OF I.A. v. FRANCE | 2 | Violation of Art. 5-3;No violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses award - Convention proceedings | R. Pekkanen | 7. The applicant, who was born in Beirut (Lebanon) in 1958, is at present detained in Rennes Prison (Ille-et-Vilaine). In December 1990 he travelled to Lebanon, where he married a young Lebanese woman, who became his second wife. 8. On 21 June 1991 the body of a young woman was retrieved from the harbour mouth at Les Sables d’Olonne (Vendée). She had been gagged, her teeth had been broken and she had head wounds. The body bore the marks of strangulation, had burns on the chest and thighs and had been weighted down with a weight of about twenty kilograms. A post-mortem carried out the same day by Drs Nadau and Rocard revealed, inter alia, that the cause of death had been asphyxia and that the victim had received a blow to the head before she died. 9. On 25 June 1991 a murder inquiry was opened and the investigating judge ordered an expert report on the body. The report, by a Professor Rudler, was filed on 29 October 1991. 10. Having been unable to identify the body, the investigators circulated this information through Interpol. On 5 November 1991 the Interpol office in Beirut informed them that the applicant’s wife’s parents, who were worried because they had had no recent news of their daughter, had reported her disappearance to the Lebanese authorities. It was subsequently discovered that, by letters of 21 August 1991, the applicant had reported his wife’s disappearance to the municipal services of Nuaille (Maine-et-Loire) and the Vezins gendarmerie. When he was interviewed on 14 September 1991 by gendarmes belonging to that brigade he had stated that his wife had left him on 18 June 1991 to join her brother in Switzerland, taking with her some money and objects of value that she had stolen from him. On 4 October 1991 he had also filed a missing person report with the prefectoral authorities. 11. Tests carried out on the body identified the victim as the applicant’s wife. 12. The applicant was taken into police custody on 4 December 1991. When interviewed by the police conducting the inquiry he first asserted that on 18 June 1991 he had dropped his wife off at Angers station, where she had caught a train to Paris before travelling to Switzerland. He subsequently made, in substance, the following statement: on 19 June 1991, after a domestic quarrel, the applicant’s wife had attempted to take her own life by swallowing medicines and then dousing herself with household bleach, after which she had hanged herself with a clothes line; fearing the reactions of his wife’s family, Mr I.A. had cut down her body, pushed her tongue back into her mouth with a piece of cloth, wrapped the body in a sheet and blanket, tied and weighted it and then placed it in the boot of his car before driving to Les Sables d’Olonne, where, next day, after waiting for nightfall, he had thrown it into the sea. As the investigation proceeded, it revealed the inconsistencies of this version of events. For example, the applicant’s wife had not doused herself with bleach nor had she swallowed medicines; she had not been hanged but strangled; and it was before she died that the piece of cloth had been placed in her mouth and the burns found on her body and the injuries to her teeth had been caused. 13. On 6 December 1991 the Sables d’Olonne investigating judge charged Mr I.A. with murder and made a provisional order for his imprisonment, committing him to prison for three days. On 9 December 1991 the judge made an order for his detention on remand worded as follows: “… Whereas the constraints of judicial supervision are inadequate with regard to the functions set out in Article 137 of the Code of Criminal Procedure; Whereas the accused’s detention on remand is necessary to preserve public order from the disturbance caused by the offence, to protect the accused, and to ensure that the accused remains at the disposal of the judicial authorities, in that, as the case concerns a serious crime, and in the light of what the investigations conducted hitherto have revealed, public order has been disturbed, in particular by the circumstances of the discovery of the body; in that the accused belongs to a Lebanese community, so that he must be protected from the risk of revenge attacks by the victim’s family; and in that there is a need to ensure that he remains at the disposal of the judicial authorities, as he may abscond to the Middle East at any time.” 14. On 10 December 1991 the investigating judge appointed a Professor Pannier and a Dr Bureau to produce an expert report on the lesions found on the victim’s body (their report was filed on 3 June 1992). On the same day, and again on 16 December 1991, the judge interviewed one of the applicant’s cousins, who had come to see him of his own accord. 15. On 19 December 1991 the investigating judge appointed a Professor Doutremepuich to produce an expert report on vaginal and anal swabs taken from the victim. 16. On 20 December 1991 the investigating judge held a reconstruction of the crime, which was attended, among others, by the doctor who had performed the post-mortem, who was appointed expert with the special task of verifying the compatibility of the versions of events given by the accused with the results of the post-mortem (his report was filed on 10 January 1992). On the same day the investigating judge questioned Mr I.A. 17. From 20 December 1991 to 12 February 1992, acting on instructions received on 18 December 1991, the Angers Regional Criminal Investigation Department (SRPJ) monitored the telephone line of a Mr V. and a Miss B., two of the applicant’s acquaintances. 18. On 7 January 1992 the investigating judge appointed Professor Doutremepuich to examine the rag that had been used to gag the applicant’s wife. On 8 January he appointed two psychologists, a Mrs Griffon and a Mr Troadec, to produce medico-psychological reports on the applicant and a Dr Pennec to produce a psychiatric report (the reports of the first two experts mentioned were filed on 2 April 1992, that of the third expert on 8 April 1992). 19. On 16 January 1992, acting on instructions received on 6 December 1991, a detective from the Angers SRPJ interviewed the applicant’s first wife. 20. The investigating judge took evidence from Mr I.A.’s cousin as a civil party on 29 January 1992. On 12 February he took evidence from the victim’s brother and sister-in-law – they had previously been interviewed on 5 February by the Angers SRPJ, acting on instructions of 20 December 1991; on 14 February and 6 March 1992 he confronted them with the applicant. 21. On 18 March 1992, acting on instructions of 6 March, the Angers SRPJ took a sample of hair from the body. 22. On 18 and 20 March 1992, acting on instructions of 20 December 1991, the Angers SRPJ took statements from Mr V. and Miss B., and from a woman with whom Mr I.A. had been carrying on a sexual relationship before his arrest. The latter declared in particular that the applicant had informed her of his intention of leaving France for Australia as soon as his house was sold. 23. On 31 March 1992 the investigating judge visited the scene of the crime. On 15 April 1992 he again interviewed the applicant’s cousin. On 30 April 1992 he took a statement from the applicant’s ex-wife. 24. On 21 May 1992 the investigating judge confronted the applicant’s cousin with Mr V. and Miss B., then interviewed Mr I.A., asking him in particular whether he wanted any special expert examinations of the victim’s body to be made. On the basis of instructions given the same day, Mr V. and Miss B. were again interviewed by the Angers SRPJ. On 26 May the investigating judge held a confrontation with the victim’s brother and sister-in-law. 25. On 29 May 1992 the judge refused an application for release lodged by Mr I.A. in an order worded as follows: “… Whereas the accused’s detention on remand is necessary to preserve public order from the disturbance caused by the offence, to protect the accused, and to ensure that the accused remains at the disposal of the judicial authorities, in that the offence gravely disturbed public order, being a serious crime; in that further inquiries are necessary; and in that it is necessary to ensure that the accused remains at the disposal of the judicial authorities on account of the fact that, being a Lebanese national, he is likely to flee the jurisdiction, a step which it seems he considered taking shortly before his arrest.” On appeal by the applicant, the Indictment Division of the Poitiers Court of Appeal upheld the above order in a judgment of 16 June 1992, on the following grounds: “Having regard to the penalty to which the accused would be liable if found guilty and the fact that he has family ties in Lebanon, it is to be feared that he might seek to evade justice by absconding to that country. It is obviously necessary to continue his detention to prevent him from doing so.” 26. On 10 June 1992 the investigating judge held a confrontation between the applicant and the three people he had interviewed on 21 May. 27. On the basis of instructions given on 17 June 1992, a witness was interviewed by the Angers SRPJ. 28. On 10 July 1992 the investigating judge confronted Mr I.A.’s cousin with his ex-wife. 29. On 14 September 1992 the investigating judge refused an application for release lodged by Mr I.A. on 9 September in an order worded as follows: “Whereas the accused’s detention on remand is the only way to preserve the evidence, and to prevent pressure being brought to bear on witnesses or the victim, in that the accused has shown particular duplicity in the organisation of his lies; in that he has colluded with third parties (ex-wife and friend); and in that new evidence has turned up during the investigation (discovery of allegedly stolen jewellery); Whereas the accused’s detention on remand is necessary to preserve public order from the disturbance caused by the offence, to protect the accused, and to ensure that he remains at the disposal of the judicial authorities, in that public order has been disturbed in the extreme on account of the international, family implications to which the accused himself refers in his application; and in that the accused himself admits to living in fear ‘of our frequently barbaric and unjust customs’, his continued detention is the only way to ensure his protection and to avoid all risk of his absconding in the event of his release.” 30. On 16 October 1992 the accused was served with a copy of the expert report of Professor Pannier and Dr Bureau and was informed that he had fifteen days to submit observations or request an additional expert report or second opinion; he was then interviewed by the investigating judge. He was again questioned by the investigating judge on 28 October 1992. 31. By an order of 29 October 1992 the investigating judge appointed an expert to carry out “an inquiry into the accused’s personality, his financial circumstances, and his family and social background, and to provide any kind of information about his pattern of behaviour”. The report was filed on 14 January 1993. 32. By an order of 17 November 1992, which reproduced the wording of the order of 14 September 1992, the investigating judge refused an application for release lodged by the applicant. 33. On 25 November 1992 the investigating judge interviewed the applicant’s cousin. 34. On 4 December 1992 the judge extended for one year the applicant’s detention on remand, by means of the following order: “Whereas the accused’s detention on remand is the only way to prevent collusion between him and his accomplices, in that the circumstances of the victim’s death and the barbaric acts which she suffered remain obscure; in that it is necessary to try to ascertain the accused’s motives, in case this was not just a simple private problem but formed part of a much more general context with Lebanese links; and in that it is therefore possible that the accused did not act alone; Whereas the accused’s detention on remand is necessary to preserve public order from the disturbance caused by the offence, to protect the accused, and to ensure that he remains at the disposal of the judicial authorities, in that the case file shows that there is a very serious risk of reprisals; in that the very special circumstances of the victim’s death (barbarity) have been partly responsible for a lasting disturbance of public opinion; and in that it is necessary, in view of the penalty to which the accused is liable, and his foreign origin, to ensure that he remains at the disposal of the judicial authorities.” 35. On 8 December 1992 the investigating judge visited the scene of the crime. 36. On 13 January 1993 the investigating judge refused another application for release from the applicant, by an order drafted in the same terms as the order of 4 December 1992 (the only major difference being that it omitted to mention that detention was necessary for the protection of the accused). He also refused, on 5 March 1993, an application submitted on 2 March, on the ground that detention was the only way to prevent pressure being brought to bear on witnesses and was necessary to preserve public order from the disturbance caused by the offence, to protect the accused and to ensure that he remained at the disposal of the judicial authorities. 37. On 16 March 1993 the investigating judge asked a Dr Lavault to produce an additional expert report to verify whether the burns found on the victim’s body had been caused before death. On 24 March 1993 he served Mr I.A. with the conclusions of the expert report on the rag that had been used to gag the victim, informed him that he had fifteen days to submit observations or request an additional expert report or second opinion and then interviewed him. 38. By an order of 2 April 1993 the investigating judge refused a new application for release lodged by the applicant on the ground that detention was necessary to preserve public order from the disturbance caused by the offence, to protect the accused and to ensure that he remained at the disposal of the judicial authorities. More specifically, the order stated: “Whereas the offence seriously disturbed public order, since it involved the death of a young woman in particularly barbaric circumstances; and whereas this disturbance, which extends beyond French territory, both the victim and the offender being of Lebanese origin, has not ceased to this day; Whereas it is necessary to keep at the disposal of the judicial authorities a person whose life would be endangered by his release, given the indignation and distress that such a measure could not fail to provoke among the victim’s relatives, as they would not be able to understand or accept it, although they have hitherto placed their trust in French justice; And whereas, lastly, the investigation will in all probability be concluded when the inquiries currently in progress have been completed, and the transmission of the file to the public prosecutor’s office can be expected to take place by the end of June.” On appeal by Mr I.A., the Indictment Division of the Poitiers Court of Appeal upheld this order in a judgment of 21 April, on the following grounds: “Having regard to the penalty to which the accused would be liable if found guilty and the fact that he has family ties in Lebanon, it is to be feared that he might seek to evade justice by absconding to that country. It is obviously necessary to continue his detention to prevent him from doing so. It is also necessary for the purposes of the inquiries currently in progress, in particular to avoid all risk of collusion with witnesses and to prevent pressure being brought to bear on them, as [I.A.]’s conduct gives reason to fear.” 39. On 26 April 1993 the investigating judge appointed Mrs Griffon to conduct a medico-psychological and psychiatric examination of the applicant (her report was filed on 8 July 1993). 40. In the night of 4 to 5 May 1993 a burglary was carried out at the applicant’s home, at which official police seals had been placed. On 6 May the vehicle used to move the body, which had been stolen during the burglary, was found in the River Maine at Angers. 41. On 10 May 1993 the investigating judge refused an application for release submitted by the applicant on 5 May, by an order worded as follows: “Whereas the accused’s detention on remand is necessary to preserve public order from the disturbance caused by the offence, and to ensure that the accused remains at the disposal of the judicial authorities, in that there is strong evidence that [I.A.] is guilty of murder; and in that it is necessary to ensure that he remains at the disposal of the judicial authorities and to forestall any risk of pressure being brought to bear on witnesses.” 42. On 28 May 1993 the investigating judge arranged a confrontation between the applicant, his cousin and one of the experts previously appointed (Dr Nadau); they discussed the question whether the lesions found on the victim’s body had been caused before death. 43. On 4 June 1993 the investigating judge refused an application for release lodged by Mr I.A. on 1 June, on the ground that his detention was the only way to prevent pressure being brought to bear on witnesses and was necessary to preserve public order from the disturbance caused by the offence and to ensure that the accused would remain at the disposal of the judicial authorities. He did so again on 18 and 25 June 1993 by means of two orders worded as follows: “Whereas there is strong evidence that [I.A.] is guilty of murder; Whereas from the time of his wife’s death until his arrest he showed particular duplicity, attempting to set his family against the young woman’s family by making particularly serious false allegations; Whereas it is to be feared that [I.A.] will abscond to a country where he has family ties; Whereas it is necessary to ensure that he remains at the disposal of the judicial authorities; Whereas his detention on remand is also necessary in order to discover the truth, since [he] has continually employed stratagems designed to enable him to evade his responsibilities.” On 9 July 1993 the investigating judge refused another application for release, dated 5 July, on the ground that the applicant’s detention was necessary to preserve public order from the disturbance caused by the offence, to protect the accused and to ensure that he remained at the disposal of the judicial authorities. On 23 July he refused a further application from the applicant, by means of an order with exactly the same wording as those of 18 and 25 June. On 13 and 23 August, 3 and 14 September, 15 and 29 October and 5 November 1993 he refused applications lodged respectively on 9, 24 and 31 August, 9 September, 11 and 25 October and 2 November. These orders generally stated that Mr I.A.’s detention was the only way to prevent pressure being brought to bear on witnesses and was necessary to preserve public order from the disturbance caused by the offence, to protect the accused and to ensure that he remained at the disposal of the judicial authorities. They also pointed out that there was “strong evidence” that Mr I.A. was “guilty of murder”, that “from the time of his wife’s death until his arrest” he had shown “particular duplicity”, that it was “to be feared that he [would] abscond to a country where he [had] family ties” and that it was therefore necessary “to ensure that he remained at the disposal of the judicial authorities so as not to create any risk of the inquiries needed to reveal the truth being impeded”. In a judgment of 23 November 1993 the Indictment Division of the Poitiers Court of Appeal upheld the order of 5 November, on the grounds that “regard being had to the penalty for the offence concerned, there [was] a strong risk that [I.A.] would abscond to his country of origin before he could be brought to trial” and that “his continued detention [was] the only way to guard against that risk”. 44. On 9 November 1993 a Mr A., one of the three people who had carried out the burglary of 4 May, was interviewed by the Angers SRPJ. He stated that the purpose of the burglary had been to remove evidence and take away Mr I.A.’s vehicle. On 22 November 1993, when he was questioned by the investigating judge about his relations with the people who had carried out the burglary at his home, the applicant denied any involvement. 45. On the same day the judge extended Mr I.A.’s detention on remand for one year by an order which stated: “The accused must be kept at the disposal of the judicial authorities, since the serious nature of the offence and the circumstances of the victim’s death have very gravely disturbed public order both in France and in Lebanon.” 46. A summary report drawn up by the Angers SRPJ and completed on 6 December 1993, concerning in particular the inquiries conducted after the burglary of 4 May, was communicated to the investigating judge. 47. On 7 December 1993 the investigating judge interviewed Mr A., who confirmed his statement of 9 November. 48. By two orders of 10 and 17 December 1993, which cited the same grounds as those of 13 and 23 August, 3 and 14 September, 15 and 29 October and 5 November 1993, the investigating judge refused applications for release lodged by the applicant on 6 and 13 December 1993. 49. On 7 and 21 January and 4 February 1994 the investigating judge refused applications for release lodged on 4, 18 and 31 January, by means of orders worded as follows: “Whereas the accused’s detention on remand is necessary to preserve public order from the disturbance caused by the offence, to protect the accused, and to ensure that the accused remains at the disposal of the judicial authorities, in that there is strong evidence that [I.A.] is guilty of murder; in that from the time of his wife’s death until his arrest he showed particular duplicity; in that it is to be feared that he will abscond to a country where he has family ties; and in that it is therefore necessary to ensure that he remains at the disposal of the judicial authorities.” 50. The orders of 7 January and 4 February stated in addition: “The accused’s detention on remand is the only way to prevent pressure being brought to bear on witnesses.” The second of these did not refer to the need to “protect the accused”, but added that detention on remand was “the only way to preserve the evidence”. 51. On 7 February 1994 the investigating judge questioned Mr I.A. On the same day the Angers SRPJ interviewed a Mr B., one of the three people who had carried out the burglary of 4 May 1993. Subsequently, the police lost trace of him. 52. By orders of 14 and 22 February 1994 the investigating judge refused applications for release lodged on 9 and 17 February. These orders stated that the applicant’s detention on remand was the only way “to preserve evidence [and] prevent collusion between the accused and his accomplices” (order of 14 February) and “to prevent pressure being brought to bear on witnesses” (order of 22 February). For the rest, they repeated the grounds cited in paragraph 49 above. 53. By three orders of 4, 11 and 18 March, the investigating judge refused applications for release lodged on 28 February and 7 and 14 March. The first and third of these orders stated that the applicant’s detention on remand was “the only way” to “preserve evidence” and to “prevent pressure being brought to bear on witnesses”; the second mentioned only the second of these grounds. For the rest, they repeated the grounds cited in paragraph 49 above, apart from the fact that the first two made no mention of the necessity of detention for the protection of the accused. 54. In the meantime, on 28 February 1994, an investigating judge from the Angers tribunal de grande instance had been appointed to investigate the case, since the investigation conducted up to that point had shown that the crime had been committed within the territorial jurisdiction of that court. On 4 March 1994 the new investigating judge asked for the file to be passed on to him. On 18 March 1994 the investigating judge who had handled the case until then relinquished his charge to the new judge. 55. On 6 June 1994 the new investigating judge questioned Mr I.A., who said that he wished to stand by his previous statements. 56. On 16 and 23 September 1994 the judge refused applications for release lodged by the applicant. The first of these orders was worded as follows: “Whereas the detention on remand of the person under investigation is the only way to preserve evidence, and to prevent pressure being brought to bear on witnesses, in that the person under investigation stands accused of murdering his wife, which he denies; in that there is, however, evidence against him that must be examined; in that, moreover, it appears … from the file that he incited others to burgle his home with a view to the destruction of documents that could have been used as evidence; in that his release or placement under judicial supervision would not be, at the present stage of the investigation, conducive to discovery of the truth; Whereas the detention on remand of the person under investigation is necessary to preserve public order from the disturbance caused by the offence, and to ensure that the person under investigation remains at the disposal of the judicial authorities, in that there is strong evidence that [I.A.] is guilty of murder, an offence which, by its nature, causes a manifest and lasting disturbance of public order; in that the person under investigation has shown duplicity; and in that, having ties with a foreign country, it is to be feared that he would abscond if released.” The second order read as follows: “Whereas the detention on remand of the person under investigation is the only way to preserve evidence, and to prevent collusion between the person under investigation and his accomplices, in that further inquiries are needed to uncover the full truth; in particular, light needs to be shed on the circumstances in which the burglary of the home of the person concerned – the scene of the crime – was organised and carried out; Whereas the detention on remand of the person under investigation is necessary to preserve public order from the disturbance caused by the offence, and to prevent any repetition of the offence, in that, as the case file stands, there is strong evidence that the person concerned killed his wife; in that this is obviously an objectively serious offence which has accordingly caused a manifest and lasting disturbance of public order; in that the conduct of the person concerned during the investigation and the ties he has with a foreign country give reason to fear that he might seek to evade justice and his responsibilities; and in that the person concerned is already due to be examined on 11 October next.” 57. On 11 October 1994 the applicant was examined by the investigating judge. 58. On 18 October and 21 and 25 November 1994 the investigating judge refused applications for release of 13 October and 17 and 22 November by three orders drafted in exactly the same terms as the order of 23 September (apart from the reference to the examination of 11 October). 59. On 28 October 1994 the investigating judge instructed the director of the Angers SRPJ to find and interview a Mr F. and Mr B., two of the three people who had carried out the burglary of 4 May 1993. Mr F. was traced on 29 November 1994: he was in prison under the assumed identity of his own brother. 60. On 3 November 1994, acting on instructions of 24 October, the Cholet gendarmerie removed the official police seals from Mr I.A.’s house. 61. On 30 November 1994 the investigating judge extended the applicant’s detention on remand for one year, by an order which read: “Whereas the detention on remand of the person under investigation is the only way to preserve evidence, and to prevent collusion between the person under investigation and his accomplices, in that further inquiries are needed to uncover the full truth; in particular, light needs to be shed on the circumstances in which the burglary of the home of the person concerned – the scene of the crime – was organised and carried out; and in that the police have been given instructions to try to apprehend the last of the men involved in the burglary; Whereas the detention on remand of the person under investigation is necessary to ensure that the person under investigation remains at the disposal of the judicial authorities, and to preserve public order, in that, as the case file stands, and despite the denials of [I.A.], there is strong and consistent evidence that he killed his wife in particularly odious circumstances; in that this is obviously an objectively serious offence which has accordingly caused a manifest and lasting disturbance of public order; in that the conduct of the person under investigation during both the police inquiries and the judicial investigation and the ties he has kept with his country of origin give reason to fear that he might seek to evade justice and his criminal responsibility.” 62. On 2 December 1994 the investigating judge refused an application for release submitted on 28 November by an order written in the same terms as the order of 30 November. 63. On 5 January 1995 Mr I.A. again applied for release; this was refused by an order of 10 January 1995, on the same grounds as those set out in the orders of 30 November and 2 December 1994. The applicant appealed on 12 January 1995, relying in particular on Article 5 § 3 of the Convention; he complained of the length of the proceedings and argued that he could not be held responsible for this, since he had not requested any step likely to prolong the investigation, nor had he used any procedural remedies capable of suspending its progress. In response, the Indictment Division of the Angers Court of Appeal upheld the order in a judgment of 25 January 1995, holding: “… Although the killing of a woman by her husband is not generally a complex matter, it should be noted in the present case that this killing has been denied and presented as a suicide by hanging, just as the acts of torture and barbarity suffered by the victim during the days which preceded her death have been denied, but above all that the motive for this crime, without knowing which it is not possible to assess the perpetrator’s responsibility, has been carefully concealed. The silence constantly maintained by the person under investigation, the inertia he has shown in order to prevent the investigation moving rapidly forward and the need to conduct inquiries into the burglary committed at his home, in which one of his fellow prisoners participated, which was designed to destroy documents and the vehicle used to move the body, and which could have been carried out at the behest of [I.A.], obliged the investigating judge to order many expert opinions and to conduct inquiries which cannot be regarded as accessory in order to uncover the truth. These have been the cause of the protractedness of the proceedings and the detention of which [I.A.] complains. The risk that [I.A.] might bring pressure to bear on witnesses of the offences committed during the days which preceded the victim’s death, in concert with the accomplices he may well have had, and the risk that he might abscond to Lebanon or another country where he could be assisted by members of the large community of Lebanese emigrants make it essential for his detention to continue, since judicial supervision in this case is not a measure which can perform the functions set out in Article 137 of the Code of Criminal Procedure.” The applicant appealed on points of law against the above decision, relying on Article 5 § 3 of the Convention in particular. He submitted that his refusal to admit the offence which he stood accused of, and which he denied having committed, could not amount to inertia on his part; that the Court of Appeal had not explained how the need to conduct inquiries into the burglary carried out at his home prevented the investigation from proceeding in connection with the events which had led to his detention on remand; and that it had not given detailed reasons for its decision. In a judgment of 22 May 1995, the Court of Cassation dismissed this appeal. 64. In the meantime, on 18 January 1995, acting pursuant to the instructions of 28 October 1994 and further instructions given on 5 January 1995, the Angers SRPJ had interviewed Mr F., who had confirmed Mr A.’s statement to the effect that the burglary at the applicant’s home had been carried out at his behest with the aim of ensuring that certain documents disappeared. On 10 February 1995 the investigating judge had questioned Mr I.A. about the circumstances of the burglary; he had denied being behind it. On 24 March 1995 the judge had instructed the Metz gendarmerie by warrant to find out Mr A.’s address so that he could be served with a summons to appear before him at his chambers. The warrant had been returned on 6 April 1995 and the summons had been served on 5 May. On 31 May 1995 the investigating judge confronted the applicant with Mr A. and Mr F. All three confirmed their previous statements about the burglary. 65. On 29 June 1995 the investigating judge informed Mr I.A. that his case file was to be communicated to the public prosecutor in twenty days’ time, after which he would no longer be able to request additional investigative measures. On 19 July 1995 the applicant requested the investigating judge to order such measures; he asked for an international letter of request to be issued asking for inquiries to be conducted in Lebanon about the victim’s personality and an assessment made of whether she had suicidal tendencies. He also asked for three expert opinions to be ordered to describe the system of marriage and divorce in Lebanon and to explain the reasons why ethanol had been found in the victim’s body, the different nature of the strangulation marks found, what happened to the tongues of people who had been hanged or strangled and whether the position of the arms as he had described it was what would have been expected. By an order of 11 August 1995 the investigating judge refused these requests after noting their “particularly late” submission and the lack of justification for them. 66. On 19 July 1995 Mr I.A. had also applied to the Indictment Division asking it to declare the proceedings null and void. 67. On 26 July 1995 the investigating judge refused an application for release by an order worded as follows: “… Whereas the detention on remand of the person under investigation is the only way to prevent pressure being brought to bear on the witnesses, the victim, in that, by his attitude throughout the investigation, the person under investigation has shown how determined he is to impede the discovery of the truth and in that it is to be feared that he might bring pressure to bear on witnesses of the offences committed during the days which preceded the victim’s death; Whereas the detention on remand of the person under investigation is necessary to preserve public order from the disturbance caused by the offence, in that the person concerned is accused of a killing carried out in odious circumstances, which have disturbed public order in a particularly lasting manner; and in that [I.A.]’s conduct and ties outside France give reason to fear that he might seek to evade justice.” 68. On 31 July 1995 the investigating judge transferred the case file to the public prosecutor’s office. 69. On 4 August 1995 the investigating judge refused an application for release of 31 July, by an order written in exactly the same terms as the order of 26 July. 70. On 11 August 1995, in view of the application of 19 July in which Mr I.A. had asked the Indictment Division of the Angers Court of Appeal to declare the proceedings null and void, the investigating judge stayed the investigation pending the Indictment Division’s decision and ordered the case file to be transmitted to its president. 71. On the same day the investigating judge refused an application for release by an order written in the same terms as those of 26 July and 4 August. He refused further applications on 18 and 25 August, 1 and 29 September, 20 and 26 October and 3 and 10 November 1995. These orders reproduced the reasons set out in those of 26 July and 4 and 11 August and in addition expressly mentioned that detention on remand was “necessary to ensure that the person under investigation remain[ed] at the disposal of the judicial authorities”. The last three orders aded that, by his attitude “during both the police inquiries and the investigation”, the applicant had shown his determination to “mislead the investigators and witnesses about the facts”, that the risk of pressure being brought to bear also applied to witnesses of the events that had followed the victim’s death, that the disturbance to public order caused by the offence was “exceptional” and that Mr I.A.’s conduct and ties outside France gave reason to fear that he might seek to evade justice “as he [had] tried to evade his criminal responsibility”. 72. By a judgment of 15 November 1995 the Indictment Division of the Angers Court of Appeal noted that the proceedings were lawful and remitted the case to the investigating judge for further investigation. On 20 November 1995 the applicant appealed on points of law. 73. On 17 November 1995, by an order identical to those of 26 October and 3 and 10 November, the investigating judge refused an application for release submitted on 13 November. 74. The prosecution’s final submissions, calling for the file to be transmitted to the Principal Public Prosecutor, were filed on 21 November 1995 and the transmission order was made on 6 December 1995. 75. On 24 November and 1 and 6 December 1995, by orders which reproduced the reasons set out in those of 26 October and 3, 10 and 17 November, the investigating judge refused applications for release submitted by the applicant. On 8 December 1995 the applicant appealed to the Indictment Division of the Angers Court of Appeal against the order of 6 December. He complained of the length of his detention and the length of the proceedings. By a judgment of 20 December 1995 the Indictment Division dismissed the appeal, on the following grounds: “… [I.A.]’s lawyer cannot maintain that the investigation “has still not been closed” when the order for the file to be transmitted to the Principal Public Prosecutor was made on 6 December 1995, nor can he maintain that the Court of Cassation’s decision of 22 May 1995 dismissing his client’s appeal on points of law against the judgment of 25 January upholding an order refusing an application for release did not influence the speediness of the investigation, when he waited until 19 July before asking the investigating judge to take further steps and at the same time requested the Indictment Division to rule that the proceedings were null and void, since those applications, which do not appear to be really consistent with each other, necessarily caused some delay. … The killing of a woman by her husband is not generally a complex matter, but it should be observed in the present case, firstly, that the fact that the person under investigation has maintained a constant silence about the real circumstances of his wife’s death and the acts of torture and barbarity she suffered, the inertia he has shown in order to prevent the investigation moving rapidly forward and the need to conduct inquiries into the burglary committed at his home, in which one of his fellow prisoners participated, which was designed to destroy documents and the vehicle used to move the body, and which seems to have been carried out at the behest of [I.A.], obliged the investigating judge to order many expert opinions and to conduct inquiries which cannot be regarded as accessory in order to uncover the truth. Secondly, the applications and appeals lodged by [I.A.] have necessarily prolonged the proceedings and the detention whose length he complains of. As the preparatory investigation is now closed, [I.A.]’s detention on remand is necessary with a view to the definitive investigation of the facts to be conducted at his trial; to prevent him bringing pressure to bear on the witnesses of the offences committed during the days which preceded the victim’s death; to prevent him absconding to Lebanon or some other country and to guarantee that he appears in court to stand trial. As judicial supervision would not be adequate in the present case to perform the functions set out in Article 137 of the Code of Criminal Procedure, the impugned order is upheld.” 76. On 5 January 1996 the applicant again submitted an application for release to the Indictment Division of the Angers Court of Appeal, which dismissed it in a judgment of 17 January 1996, on the following grounds: “… Although the detention on remand he has undergone is abnormally long for a case in which a woman has been killed by her husband, as this court found in its previous judgment, the length of his detention is not attributable to any dysfunction of the judicial system but solely to the conduct of the person under investigation, who has maintained a constant silence about the real circumstances of his wife’s death and the acts of torture and barbarity she suffered, to the inertia he has shown in order to prevent the investigation moving forward and to the need to shed light on the burglary committed at his home, these inquiries and expert reports having been essential to make progress in discovering the truth in view of the attitude shown by the person under investigation. Lastly, the applications and appeals lodged by [I.A.] have necessarily prolonged the proceedings and the detention whose length he complains of. Regard being had to these circumstances, and to the judgment in the case of W. v. Switzerland delivered [by the European Court of Human Rights] on 26 January 1993, the period of time already spent in detention on remand has not exceeded the “reasonable time” prescribed by Article 5 § 3 of the [Convention]. As the Indictment Division is due to rule on 24 January 1996 on the charges to be brought against [I.A.], his detention on remand is necessary to prevent him bringing pressure to bear on the witnesses of the offences committed during the days which preceded the victim’s death, to prevent him absconding to Lebanon or some other country and to guarantee that he appears in court to stand trial. As judicial supervision would not be adequate in the present case to perform the functions set out in Article 137 of the Code of Criminal Procedure, the impugned order is upheld.” 77. By a judgment of 24 January 1996, the Indictment Division committed the applicant for trial in the Maine-et-Loire Assize Court for murder and made an order for his delivery into custody. On the same day the applicant appealed to the Court of Cassation against this judgment. On 20 March 1996 the President of the Criminal Division of the Court of Cassation ordered the continuation of the proceedings. On 25 June 1996 the Criminal Division dismissed the applicant’s appeals against the Indictment Division’s judgments of 15 November 1995 (see paragraph 72 above) and 24 January 1996. 78. At the criminal hearing on 11 December 1996 the Assize Court adjourned the case, in response to an application from the applicant, who objected to being tried in the absence of two witnesses (the victim’s sister-in-law and Mr B., one of the three people who had carried out the burglary of 4 May 1993) and an expert who had all been duly summoned. At the end of the hearing the applicant’s lawyer submitted an application for his release, which the court dismissed after retiring to deliberate. 79. By a judgment of 20 March 1997 the Assize Court sentenced the applicant to life imprisonment, with ineligibility for parole during the first eighteen years. 80. The applicant appealed on points of law against the judgment of 20 March 1997. By a judgment of 1 April 1998 the Criminal Division quashed the judgment of the Maine-et-Loire Assize Court and declared it null and void, on the ground that the Assize Court had misapplied Article 346 of the Code of Criminal Procedure when it ruled on an application by the applicant’s counsel for a note to be entered in the record by omitting to allow the latter or his client to address the court last. It remitted the case to the Loire-Atlantique Assize Court. 81. On 6 April 1998 the applicant lodged an application for release with the Indictment Division of the Rennes Court of Appeal. In a letter of 22 April, his lawyer informed the President of the Indictment Division that his client wished to withdraw the application. This was noted by the Indictment Division in a judgment of 23 April. 82. On 13 May 1998 Mr I.A. lodged a further application for release, which the Indictment Division of the Rennes Court of Appeal dismissed in a judgment of 28 May 1998, on the following grounds: “[I.A.] is liable to the penalty for a serious criminal offence. The evidence against him is particularly weighty, particularly in the light of what was revealed by examination of the victim’s body, which he admits getting rid of. The results contradicted the successive versions of events he gave during the investigation, which he took care to adapt and adjust to each new finding made as the inquiries progressed. Although his detention on remand has indeed lasted for a long time, its length is not attributable to any dysfunction of the judicial system, but is mainly due to the attitude shown by the accused, who, through his silence, his contradictions and his numerous applications (notably for relinquishment of jurisdiction by the investigating judge), has managed to impede the progress of the proceedings considerably and delay their outcome. In addition to the difficulties encountered in the course of the investigation, there was the need to find time for hearings in the Assize Court, and a new appeal, which was determined more than a year after it was lodged. In view of the particular, and indeed exceptional, circumstances, [I.A.]’s detention on remand has not exceeded the reasonable time prescribed by Article 5 of the European Convention on Human Rights. Moreover, the defendant has not provided sufficient guarantees that he will appear in court to stand trial. [I.A.] is of Lebanese origin. He asserts that he wishes to live in Rennes while waiting to appear in the Loire-Atlantique Assize Court. However, the court has reason to doubt that, particularly in the light of the severity of the penalty to which he is liable. It is to be feared that he will seek to evade justice. The risk of the defendant disappearing without trace seems considerable. In the light of all the above considerations, it must be ensured that [I.A.] remains at the disposal of the judicial authorities. These particular circumstances, deduced from the evidence in the case, establish that [I.A.]’s continued detention on remand remains justified with reference to the criteria exhaustively listed in Article 144 of the Code of Criminal Procedure…” 83. Article 144 of the Code of Criminal Procedure provides: “In cases involving serious crimes (matière criminelle) and lesser criminal offences (matière correctionnelle), if the sentence to which the person under investigation is liable is not less than one year’s imprisonment in the case of offences detected immediately after being committed, or two years' imprisonment in other cases, and if the constraints of judicial supervision are inadequate with regard to the functions set out in Article 137, the detention on remand may be ordered [or (Law no. 93-2 of 4 January 1993) ‘extended’]: 1. Where the detention on remand of the person under investigation is the sole means of preserving evidence or of preventing either pressure being brought to bear on witnesses or victims or collusion between persons under investigation and accomplices; [2. (Law no. 93-2 of 4 January 1993) Where this detention is necessary to protect the person concerned, to put an end to the offence or prevent its repetition, to ensure that the person concerned remains at the disposal of the judicial authorities or to preserve public order from the disturbance caused by the offence;] ...” 84. Detention on remand is imposed by means of an order which must set out the legal and factual grounds for the decision by reference to the provisions of Article 144 only. This order is notified orally to the accused, who receives a full copy of it upon signing the case file to acknowledge receipt (Article 145, first paragraph). The investigating judge gives his decision in chambers, after an adversarial hearing in the course of which he hears the submissions of the public prosecutor, then the observations of the person under investigation and, if appropriate, of his counsel (Article 145, fourth paragraph). 85. A person under investigation on suspicion of having committed a serious crime may not in principle be detained for more than one year. However, the investigating judge may, at the end of that period, extend detention for a period of not more than one year, by a decision given in accordance with the provisions of the first and fourth paragraphs of Article 145; that decision may be renewed in accordance with the same procedure until such time as the investigating judge makes the order terminating the investigation (Article 145-2). 86. An application for release may be submitted to the investigating judge at any time by the person detained or his lawyer subject to the obligations set out in Article 147; the person concerned is required to give an undertaking to attend immediately in person when a new step is taken in the proceedings if directed to do so and to keep the investigating judge informed of all his movements. The investigating judge immediately communicates the file to the public prosecutor so that the latter can make his submissions (Law no. 93-1013 of 24 August 1993 abolished the provision which required the investigating judge to inform civil parties that an application for release had been made). The investigating judge must in principle give his decision within five days of communicating the file by an order setting out the legal and factual grounds for the decision with reference to the provisions of Article 144. Where the above time-limit is not respected, the person detained may apply directly to the indictment division, which must reach a decision within twenty days, failing which the person detained is automatically released, unless verifications concerning his application have been ordered. Where release is granted, it may be accompanied by judicial supervision measures (Article 148). 87. Release may also be requested “in any event” by any person under investigation or defendant and at any time in the proceedings. Where application is made to a court of trial or appeal, the latter has the power to grant conditional release; before committal for trial in the assize court, and in between assize court sessions, that power belongs to the indictment division. In the event of an appeal on points of law, and until the Court of Cassation has given judgment, the decision on the application for release is given by the court which last tried the case on the merits. If the appeal on points of law has been lodged against an assize court judgment, the decision regarding detention is given by the indictment division (Article 148-1). The court which receives the application must in principle give judgment within ten days, if it is a court of trial, or twenty days, if it is a court of appeal. Failing that, detention on remand is terminated and the defendant, if not detained for another reason, is automatically released (Article 148-3). 88. An appeal against an order refusing release lies to the indictment division. It may be lodged by the person under investigation (Article 186) or by the Public Prosecutor or Principal Public Prosecutor (Article 185). Such an appeal does not have suspensive effect. In principle the indictment division must rule within fifteen days of the appeal, failing which the person concerned is automatically released (Article 194). 89. When dealing with an appeal on points of law against a judgment of the indictment division concerning detention on remand, the Criminal Division of the Court of Cassation must rule within three months of receiving the case file, failing which the person concerned is automatically released (Article 567-2). | 1 |
dev | 001-4553 | ENG | GBR | ADMISSIBILITY | 1,999 | TIERNEY v. THE UNITED KINGDOM | 4 | Inadmissible | Nicolas Bratza | The applicant is a British citizen born in 1961 and currently detained in HM Prison Old Elvet, Durham. Before the Court, he is represented by Mr. B.T. Row, a solicitor practising in Newcastle. The facts of the case, as submitted by the parties, may be summarised as follows. On 17 June 1993 the applicant was arrested and, together with his brother, charged with burglary and conspiracy to commit burglary. After being charged, the applicant and his brother were released on conditional bail. Committal papers were served on the defence on 21 September 1993, following the completion of the police investigation. The applicant’s representatives requested an “old style” committal hearing, which would have involved hearing oral evidence from ten prosecution witnesses over two days. It was not possible for the North Tyneside Magistrates Court to schedule a two-day hearing before 4 January 1994. On that date the defence decided to proceed on the basis of written statements under the shortened committal procedure (provided for by section 6(2) of the Magistrates Courts Act 1980). The case was then committed for trial to Newcastle Crown Court. On 25 February 1994 there was a pre-trial hearing to ascertain the pleas of the accused and to give directions for trial. The applicant and his brother pleaded not guilty and were released on bail. In a letter received on 21 April 1994, the applicant’s solicitors wrote to the court asking for the case not to be listed for eight weeks to enable them to obtain the report of a forensics expert. In a letter received on 8 June 1994, they asked for a further delay of six weeks. Finally, in a letter received on 8 July 1994 they asked that the trial not be listed until September or October 1994 to enable them to obtain medical evidence. The trial, which was estimated to require three weeks and involve hearing evidence from 58 witnesses, was listed for 3 July 1995. However, the applicant failed to appear at the trial. In his application he explained that “because of threats which [he] was receiving from the persons actually responsible for the offences for which [he] stood charged, [he] failed to attend court. [He] ... stayed at home to protect [his] family from known criminals who would have caused harm to [his] family”. The applicant was arrested on 28 July 1995 and remanded in custody. The trial was next scheduled for 4 March 1996. On that date, the applicant’s co-accused brother failed to appear and the case was again adjourned. On 22 April 1996 there was a further pre-trial directions hearing. Three possible trial dates were proposed: 17 June, 12 August and 4 November 1996. However, the applicant’s counsel, who had acted for him from the outset and whom the applicant wished to represent him at trial, was not available on 17 June, and it was not possible for the trial to take place on 12 August 1996 because of the unavailability of a number of witnesses. The trial was, therefore, fixed for 4 November 1996. The applicant was remanded in custody until then. At the trial, both the applicant and his brother pleaded guilty to charges of conspiracy to burgle. The applicant was sentenced to four years’ imprisonment. | 0 |
dev | 001-103139 | ENG | POL | CHAMBER | 2,011 | CASE OF SAMBOR v. POLAND | 4 | No violation of Art. 3 | Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano | 7. The applicant was born in 1974 and lives with his father and grandmother in a semi-detached house in Wrocław. He suffers from paranoid schizophrenia. 8. On 16 August 2003, after an argument with his father, the applicant barricaded himself in his room and threatened his father with a knife and an axe. At about 8 p.m. the father called the police. He informed the police that his son had thrown him out of the house and had locked himself inside with a number of different sorts of weapons including an air rifle, axe and knives. When the police arrived the applicant had an axe in his hand. He told the police officers to leave the property while threatening them with an air rifle. The police officers decided not to continue the intervention. When the applicant's father informed them that the applicant was under psychiatric care and recently refused to take the prescribed medications, they called a psychologist, negotiators and a doctor. Following two-hour negotiations, which failed – the applicant fired several shots at the negotiators who were approaching the house with shields - the police called the antiterrorist brigade. Considering that the situation posed a threat to the applicant's family members and those who arrived on the spot, at about midnight a brigade of eight policemen commenced their intervention, which consisted in forcing the entrance door to the apartment, deafening the applicant with a grenade and immobilising him. The applicant was aggressive; he was armed with an axe, knives and an air rifle and he fired at the policemen. According to the applicant, the policemen were also aggressive: they shouted, swore and kicked him and one of them shot him in the left leg. The applicant, even when hurt on his leg, still threw the earlier prepared bayonets at the police officers. According to the police, the shot at the applicant's leg was preceded by one warning shot. However, the applicant submitted that over twenty bullets still remain lodged in the walls of the house. 9. Subsequently, the applicant was immobilised and handcuffed. There was an ambulance in front of the house during the whole intervention, so the applicant's wound was dressed immediately and the applicant was taken to a hospital. On the way he was resuscitated three times. 10. The doctor who admitted the applicant to the hospital found that he had been in a state of post-traumatic haemorrhagic shock (pourazowy wstrząs krwotoczny) which constituted a real danger to his life. On 16 August 2003 the applicant underwent an operation on his leg. The wound from the bullet resulted in necrosis and on 29 August 2003 the applicant's left leg had to be amputated. On 9 September 2003 the applicant left the hospital. 11. On 12 December 2003 the applicant's grandmother applied to the Wrocław District Prosecutor requesting the prosecution (wniosek o ściganie) of the police officers who had participated in the intervention and wounded the applicant. 12. On 15 April 2004 the Wrocław District Prosecutor discontinued the investigation, finding that the policemen's actions had not constituted an offence of abuse of power. In the course of the proceedings before the Prosecutor, twenty two witnesses were heard and documentation containing a hundred and eighty five pages gathered. The Prosecutor obtained an expert report of a doctor of forensic medicine, who had examined the injuries sustained by the applicant. She further heard the applicant's grandmother, who said she knew from her grandson that he had been kicked by the policemen when he was lying hurt on the floor. All the members of the antiterrorist brigade denied having kicked the applicant. The prosecutor also heard the applicant and his father as well as outside witnesses. She further examined the medical report issued by the doctor who had admitted the applicant to the hospital and referred to the medical expert report according to which: “...the applicant had been admitted to the hospital on 16 August 2003. He had been shot in the left leg with the bullet's entry probably above the kneecap and exit in the calf. His artery and under-knee vein were damaged, with an open comminuted fracture of his left thigh bone. As a result of the above wounds the complication developed into necrosis and the applicant's left leg had to be amputated.” 13. As regards the course of the events, the Prosecutor established that: “After the unsuccessful intervention of the two policemen who had initially arrived at the scene, negotiators and a psychologist were sent to the applicant in order to urge him to leave the house. The negotiations lasted about two hours but they did not lead to the expected result. The applicant did not react and his only reaction was to fire an air rifle in the direction of the negotiators, who had to protect themselves with shields while approaching the applicant's windows”. When the negotiations failed, the anti-terrorist brigade was called. Before their intervention “another attempt to establish contact with the applicant was made, and when this failed the brigade began their intervention”. 14. In conclusion, the Prosecutor found that the anti-terrorist brigade had used means proportionate to the danger posed by the applicant not only to the policemen and the applicant's family, but also to third persons. It was also established in the course of the investigation that the policeman who fired at the applicant had first appealed to the applicant to calm down and to put the axe down, and had then fired a warning shot. 15. On 24 May 2004 the applicant's grandmother and father lodged an appeal against the decision of 15 April 2004. They complained that the prosecutor had not thoroughly examined the circumstances of the case and that the policemen had abused their powers. In particular, they alleged that the applicant had been shot in such a way that the gun was first pointed at the applicant's leg and a shot was then fired. They submitted further that not just one warning shot had been fired and that eighteen bullets of live ammunition, seventeen plastic bullets and six deafening grenades remained lodged in the walls of their house. They also demanded that an expert be appointed to examine the way the wounds had been inflicted; in particular the gunshot wound, but also a broken tooth, wounds to the applicant's head and a partly torn-off ear. 16. On 26 May 2004 the Wrocław District Prosecutor refused to examine the appeal, finding that it had been lodged by persons who were not parties to the proceedings. This decision was challenged by the applicant himself as well as by his father and grandmother. 17. On 6 July 2004 the Wrocław Regional Prosecutor granted the applicant's appeal and quashed the challenged decision of 26 May 2004, so allowing the applicant's appeal against the decision to discontinue the investigation to be examined by a court. 18. On 30 September 2004 the applicant requested the Wrocław District Court (Sąd Rejonowy) to appoint an expert witness to examine the clothes he had been wearing at the time of the intervention in order to find possible traces of gunpowder. 19. On 28 October 2004 the Wrocław District Court dismissed the appeal against the prosecutor's decision of 15 April 2004. The court found that in the course of the investigation which had been carried out properly, all relevant factors had been established and all necessary evidence had been taken in order to give a decision on the merits. It further found, essentially summarising the reasoning of the Wrocław District Prosecutor's decision of 15 April 2004, that the police's reaction had been proportionate. As regards the allegations concerning the shot fired at the applicant's leg, the court found that “the applicant, when heard, did not confirm those circumstances”. The court did not refer to the applicant's further reservations regarding the alleged shortcomings of the investigation, especially as regards the number of bullets allegedly remaining in the walls of the applicant's house. Neither did it refer to the applicant's request to appoint an expert who would examine his clothes. 20. On an unspecified date the applicant's father complained to the Ombudsman. 21. The Ombudsman requested the Supervisory Division of the Wrocław Prosecutor of Appeal (Wydział Nadzoru) for information on the respective proceedings. Having obtained the information requested, on 17 May 2005, the Ombudsman did not find grounds for intervention. He had examined the case-file, reconstructed again the course of events which was consistent with the version as established by the prosecutor and court. The Ombudsman confirmed, inter alia, that when the anti-terrorist brigade forced the door, the applicant behaved aggressively, fired with an air rifle towards the policemen, threw an axe in their direction and, subsequently began to throw knives towards them. Then one of the police officers, B.N. fired “warning shots” and, seeing no reaction on the part of the applicant, fired a shot towards his leg from a distance of 1.5 metres. The Ombudsman also found that the applicant had already thrown his father out of their house about two months earlier, and that then he had threatened him with a bayonet. Finally, the Ombudsman pointed to the fact that the request for institution of investigation into the alleged abuse of power by the police officers had been lodged about six months after the events in question. 22. On 18 August 2003 the Wroclaw District Prosecutor opened an investigation against the applicant, who had been charged with an active assault on the police officers (czynna napaść na policję) and with causing a bodily injury or an impairment of health for a period exceeding seven days. In the course of the inquiry the Prosecutor ordered expert reports from a psychologist and two psychiatrists, obtained evidence including photographic material and heard fourteen witnesses including the applicant and members of his family, as well as all policemen who had participated in the intervention. 23. On 30 June 2004 the Wroclaw District Prosecutor gave a decision and found that during the intervention two policemen had been hurt; one had a wound on his cheek and the other had been shot in the right arm. It was also found however that, at the time of the intervention, because of his mental illness the applicant had been incapable of understanding the significance of his behaviour. For that reason the Prosecutor discontinued the investigation. 24. The Government produced a detailed report of the intervention prepared by the police following the internal explanatory proceedings. The report confirms the applicant's aggressive behaviour and explains the circumstances in which the shot was given at the applicant. The report, in its relevant part, reads as follows: “the police officers breached the entrance door. The officer B.N. entered the corridor through the hole in the door and saw a man with an axe in his hand. The man swung his arm towards B.N. who jumped back and shouted: “Police! Drop it!” The man swung his arm again and B.N. fired a warning shot at the ground and then, at the next attack with the axe very close to B.N., B.N., facing a direct threat to his life, directed a shot at the applicant's leg. The man dropped the axe, cowered, and, limping, went further back into the house” 25. The regulations on permissible use of direct coercive measures by the police are laid down in section 16 of the Police Act, which provides that in situations in which the order of a police officer is not obeyed, such measures can be resorted to only in so far as they correspond to the requirements of a particular situation and in so far as they are necessary to obtain compliance with that order. 26. Article 5 § 1 of the Ordinance of 17 September 1990 on the use of coercive measures by the police provides that direct physical force can be used to overpower a person, to counter an attack or to ensure compliance with an order. When such force is being used it is forbidden to strike the person against whom the action is being carried out, except in self-defence, or to counter an attack against another person's life, health or property. | 0 |
dev | 001-73185 | ENG | TUR | CHAMBER | 2,006 | CASE OF ŞEVK v. TURKEY | 4 | Violation of Art. 5-3 (lack of prompt court review);Violation of Art. 5-4;Remainder inadmissible;Non-pecuniary damage - financial awards;Costs and expenses partial award - Convention proceedings | null | 5. The applicants were born in 1951 and 1979 respectively and live in Bodrum. The second applicant is the son of the first applicant. 6. On 28 June 2001 the Muğla Security Directorate asked the Bodrum Chief Public Prosecutor to issue an arrest warrant for sixteen persons who were suspected of being involved in an organised criminal gang. The gang was allegedly involved in bribing officials, threatening people into selling their property and in money laundering. The first applicant’s name was included in the list. Upon the request of the Bodrum Chief Public Prosecutor, the Bodrum Magistrates’ Court issued a warrant allowing the police to conduct searches of the houses of the suspected persons and to arrest them for the purposes of interrogation. 7. On the same day both applicants were taken into custody in Bodrum. The first applicant was arrested at his home. During the search of his residence the police found two pistols, five hunting rifles, one wire strangulation cord, one butterfly knife, four sets of handcuffs, five commando knives, two cartridge clips and twelve cartridges. The police prepared a search and arrest report, which was signed by the applicant. 8. The second applicant was working as a security guard in an exchange office owned by Ö.A, the person suspected of being the leader of the gang. While the police were conducting a search of the exchange office in order to arrest Ö.A., the second applicant arrived on the scene and was taken into custody for interrogation. 9. On 30 June 2001 the Muğla Security Directorate requested authorisation from the Bodrum Public Prosecutor to extend the applicants’ detention in police custody, as there were a number of suspects. 10. On 4 July 2001 both applicants gave statements to the police. They denied any involvement with the gang. In his statement, the first applicant explained that he knew Ö.A. and had occasionally lent him money. He also confirmed that he had bought a shop from him. However, he denied the allegation that he had been instructed by Ö.A. to threaten people. 11. On 5 July 2001 both applicants were interrogated by the Bodrum Public Prosecutor. During their questioning, the applicants repeated the statements they had made to the police. The second applicant was subsequently released. On the same day the first applicant was brought before the investigating judge at the Bodrum Magistrate’s Court, who subsequently ordered his detention on remand. 12. On 11 July 2001 the first applicant filed an objection against the remand decision. 13. On 23 August 2001 the İzmir State Security Court Public Prosecutor filed a bill of indictment with the İzmir State Security Court against the applicants and sixteen others, accusing them of being involved in the activities of an organised criminal gang, namely by bribing officials and threatening people. 14. On 17 September 2001 the first applicant filed a petition with the court, requesting his release. 15. On 17 October 2001 the applicants’ trial began at the İzmir State Security Court. At the end of the hearing, taking into consideration the seriousness of the offence and the evidence in the case file, the court ruled that the first applicant should be kept in detention on remand. 16. On 23 October 2001 the first applicant’s representative challenged the decision to continue to detain the first applicant on remand before the Istanbul State Security Court, via the registry of the Izmir State Security Court. He alleged that there was insufficient evidence to keep his client in detention. Upon the request of the Istanbul State Security Court, the public prosecutor submitted an opinion on 19 October 2001. 17. On 22 November 2001 the court refused the first applicant’s request for release. This decision was sent to the Registry of the İzmir State Security Court on 3 December 2001. 18. On 13 December 2001 the İzmir State Security Court held its second hearing and released the first applicant pending trial. 19. On 2 May 2002 the court sentenced the first applicant to five months’ imprisonment and acquitted the second applicant. 20. The fourth paragraph of Article 128 of the Code of Criminal Procedure (as amended by Law no. 3842/9 of 18 November 1992) provides that any person who has been arrested and/or in respect of whom a prosecutor has made an order for his or her continued detention may challenge that measure before the appropriate district judge and, if successful, be released. 21. Section 1 of Law no. 466 on the Payment of Compensation to Persons Unlawfully Arrested or Detained provides: “Compensation shall be paid by the State in respect of all damage sustained by persons: (1) who have been arrested, or detained under conditions or in circumstances incompatible with the Constitution or statute; (2) who have not been immediately informed of the reasons for their arrest or detention; (3) who have not been brought before a judicial officer after being arrested or detained within the time allowed by statute for that purpose; (4) who have been deprived of their liberty without a court order after the statutory time allowed for being brought before a judicial officer has expired; (5) whose close family have not been immediately informed of their arrest or detention; (6) who, after being arrested or detained in accordance with the law, are not subsequently committed for trial ..., or are acquitted or discharged after standing trial; or (7) who have been sentenced to a term of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only...” | 1 |
dev | 001-60323 | ENG | GBR | CHAMBER | 2,002 | CASE OF PAUL AND AUDREY EDWARDS v. THE UNITED KINGDOM | 1 | Violation of Art. 2 as regards circumstances of the applicant's son's death;Violation of Art. 2 as regards the failure to provide an effective investigation;No separate issue under Art. 6 or 8;Violation of Art. 13;Non-pecuniary damage - financial award | Ireneu Cabral Barreto;Nicolas Bratza | 8. The facts of this case were subject to investigation before a private, non-statutory inquiry, which issued a report on 15 June 1998, setting out extensive findings of fact. As these were not contested by the parties, the Court has relied on the report in its own assessment of the facts below. 9. Prior to his death, Christopher Edwards had shown signs of developing a serious mental illness. In 1991 a psychiatric assessment expressed the tentative diagnosis of schizophrenia. In July 1994 he stopped living at home with the applicants, his parents. At this time he stopped taking his medication. 10. On 27 November 1994 Christopher Edwards, then 30 years old, was arrested in Colchester by the police and taken to Colchester police station. He had been approaching young women in the street and making inappropriate suggestions. His behaviour before arrest, and at the police station where he attempted to assault a policewoman, led police officers to suspect that he might be mentally ill. He was assessed at the police station by an approved social worker, who discussed the matter on the telephone with a consultant psychiatrist. They agreed that, while there was some evidence of possible developing schizophrenia, he did not need urgent medical attention and that he was fit to be detained at the police station. Any psychiatric assessment could take place as part of a pre-sentencing exercise. Christopher Edwards was held in a cell on his own. The police officer responsible did not fill in a CID2 form identifying Christopher Edwards as an exceptional risk on ground of mental illness due to the opinion expressed by the social worker. The police officer did, however, note in the confidential information form (MG6A) her belief that if Christopher Edwards was not treated or seen by the mental health team he might seriously harm a female. She was not aware that her own suspicion of his mental state was sufficient to warrant categorising Christopher Edwards as an exceptional risk. 11. On 28 November 1994 Christopher Edwards was brought to Colchester Magistrates' Court. Immediately his handcuffs were removed, he pushed through the other prisoners and confronted a female prison officer. He was restrained, but struggled and tried to approach her again. He was placed in a cell on his own. During the morning, he continually banged on the cell door and shouted: “I want a woman.” He shouted obscenities about women. The applicants met the duty solicitor at about 9.45 a.m. and explained that their son was mentally unwell and that they wanted him to receive medical care and not to be remanded in custody. When the duty solicitor attempted to talk to Christopher Edwards in his cell, he received no assistance from his client who continued to make obscene suggestions about women. The duty solicitor discussed the problem with the Clerk to the Justices. 12. On his way to court and in the courtroom, Christopher Edwards repeated his earlier comments about women. The prosecutor had in her possession the MG6A form and had been requested by the police to obtain his remand in custody as there was a risk that he would reoffend and there was a real question mark about his mental state. The prosecutor informed the court that he was perceived as a risk to women, although it is unclear how much detail was given. She relied on the fact that an assessment by a psychiatrist had not yet been carried out in support of her application. Consideration was given by the Bench, together with the prosecutor, duty solicitor and Justice's Clerk as to whether he could be remanded to hospital. It was concluded that there was no power to do so under section 30 of the Magistrates' Courts Act 1980. No consideration was given, inter alia, to the application of civil provisions (sections 2, 3 or 4 of the Mental Health Act 1983) or to section 35 of the 1983 Act, which provided for remand to a hospital for assessment. 13. The magistrates decided to remand Christopher Edwards in custody for three days, which was a shorter period than usual, bringing forward the date to 1 December so that instructions could be taken and legal aid forms completed. Further consideration would then be given, inter alia, to the obtaining of a psychiatric report. After the hearing, the first applicant telephoned the probation service in Colchester and expressed concern about his son's mental health. He was advised to contact Chelmsford Prison. He rang the probation officer at the prison and informed her of his son's medical history. Her telephone note indicated that she had been told that he had been prescribed stelazine, though he had been refusing to take it or accept that he was mentally ill. The probation officer visited the health care centre and spoke to the senior medical officer, Dr F. Although there was later dispute as to how much detail she passed on to the doctor, he recalled being informed that Christopher Edwards was considered to be a risk to women. However, having regard to the psychiatric social worker's comments that Christopher Edwards was fit for detention in a police station and the fact that the court had not ordered any psychiatric reports, he stated that he would not interfere with the usual admissions procedure which meant that Christopher Edwards would be screened on arrival in the usual way and his location in the prison would depend on the result of that process. Neither he nor the probation officer passed on any of this information to the reception staff. 14. A prison officer returning to Chelmsford Prison from the Magistrates' Court informed the officer in charge of reception staff that a female prison officer had been assaulted by a prisoner who was due to arrive later that day. The police officers at the Magistrates' Court custody area suspected from his behaviour that Christopher Edwards was mentally abnormal and might be a threat to women and decided to warn the prison staff. A police officer rang and spoke to the senior officer at the prison reception and told him, inter alia, that the magistrates had wanted to remand Christopher Edwards to a mental hospital and that he had assaulted a female prison officer. The senior officer was concerned at this information and contacted the Magistrates' Court to verify whether he was being remanded under a normal warrant. He also spoke to the duty governor about the allocation of Christopher Edwards and it was decided, subject to the health care screening, that he should be located on wing D-1 where no female officers worked. 15. In the late afternoon, Christopher Edwards was taken to Chelmsford Prison. The reception staff were aware of the information passed on from the police at the Magistrates' Court and that he was a potential danger to women. He was placed in a holding area while the other prison arrivals were processed. His behaviour was noted as “strange” and “odd” and when being placed in the holding cell he was aggressive and tried to punch a prison officer. After two hours he was screened by Mr N., a member of the prison health care staff, who saw no reason to admit him to the health care centre. Mr N. knew nothing about previous discussions in the court or the concerns passed on to the prison about Christopher Edwards's mental health. He was only aware that Christopher Edwards was alleged to have assaulted a female police constable. Mr N. followed the standard questionnaire. To question 5 (Have you ever been seen by a psychiatrist?), the answer was “three years ago”. Christopher Edwards did not disclose that he had been taking stelazine. There was no evidence of active mental disturbance or bizarre behaviour during the interview, which was unlikely to have lasted more than ten minutes. No medical officer was on duty at the centre at this time, or was present in the prison. Christopher Edwards was admitted to the main prison and placed in cell D1-6. 16. He was detained in a cell on his own during this period. 17. Meanwhile, Richard Linford was arrested in Maldon on 26 November 1994 for assaulting his friend and her neighbour. At Maldon police station, he was seen by a police surgeon as it was suspected that he was mentally ill. The police surgeon certified that Richard Linford was not fit to be detained. Richard Linford was assessed by a psychiatric registrar who consulted on the telephone with a consultant psychiatrist, who decided that he did not need to be admitted to hospital and that he was fit to be detained. Richard Linford was transferred to Chelmsford police station, where the police surgeon also found him fit to be detained. While his conduct before and after arrest was bizarre, it was attributed by the doctors to the effects of alcohol abuse, amphetamine withdrawal and to a deliberate attempt to manipulate the criminal justice system. The registrar, who had previously treated Richard Linford, knew that he had been diagnosed at various times as suffering from schizophrenia or as having a personality disorder, but also knew him as someone who became ill when abusing alcohol and drugs. Over the weekend, Richard Linford showed further bizarre behaviour and was violent towards police officers. He was not reassessed by a doctor. No CID2 form was filled in, although police officers remained of the opinion that he was mentally ill. On 28 November 1994 Richard Linford was remanded in custody by Chelmsford Magistrates' Court. The magistrates were presented with a “sane but dangerous” description of him. Richard Linford arrived at Chelmsford Prison shortly after Christopher Edwards, where he was screened by the same member of the prison health care service who had seen Christopher Edwards and who saw no reason to admit him to the health care centre. Richard Linford did not behave in a bizarre fashion during the screening. Mr N. did not have knowledge of Richard Linford's previous convictions, which would have alerted him to his admittance to hospital in 1988. 18. Initially, Richard Linford was placed in cell D1-11 on his own. He was then moved into cell D1-6 with Christopher Edwards. This was due to shortage of space, as all the other cells on the landing were doubly occupied. 19. Each cell had a green emergency light situated on the wall outside the cell next to the door which came on when the call button was depressed inside the cell. Additionally, once the button was pressed, a buzzer sounded on the landing and a red light lit up on a control panel in the office on the landing concerned, indicating the cell. The red light remained on and the buzzer continued to sound even if the prisoner ceased to press the button. At 9 p.m., either Christopher Edwards or Richard Linford pressed the call button. A prison officer saw the green light outside the cell and was told that they wished one of the cell lights, operated from the exterior, to be switched off. He agreed to do so. He saw that the two men appeared to be “getting on all right”. He noticed that while the green light had gone on the buzzer which should have been sounding continuously had not done so. He did not report the apparent defect. 20. Shortly before 1 a.m. on 29 November 1994, a prison officer heard a buzzer sound. He saw no red light on the D-landing control panel and saw a prison officer go to check the other landings. Some time later, he heard continuous banging on a cell door on his landing. On going to investigate he saw the green light on outside cell D1-6. Looking through the spy hole, he saw Richard Linford holding a bloodstained plastic fork and noticed blood on the floor and on Linford's feet. There was a delay of five minutes while officers donned protective clothing. They entered the cell to find that Christopher Edwards had been stamped and kicked to death. Richard Linford was making continual reference to being possessed by evil spirits and devils. D-landing had previously been patrolled at 12.43 a.m., which indicated that up to seventeen minutes could have elapsed since the pressing of the cell's call button. 21. At the time of the attack, Richard Linford was acutely mentally ill. He was transferred later on 29 November 1994 to Rampton Special Hospital. 22. On 21 April 1995 Richard Linford pleaded guilty at Chelmsford Crown Court to the manslaughter of Christopher Edwards by reason of diminished responsibility. The trial was therefore brief. The judge imposed a hospital order under section 37 of the Mental Health Act 1983 (“the 1983 Act”), together with a restriction order under section 41. Richard Linford is currently still at Rampton Special Hospital, diagnosed as suffering from paranoid schizophrenia. 23. A coroner's inquest had been opened but adjourned pending the criminal proceedings against Richard Linford. After Richard Linford's conviction, the coroner closed the inquest, as there was no obligation to continue in those circumstances. 24. On 16 October 1995 the applicants were advised by the Assistant Chief Constable that it was considered that there was insufficient evidence to establish the offence of manslaughter by gross negligence on the part of anyone involved in the case but that the matter would be probably reviewed at the conclusion of the inquiry which had been commenced by the statutory agencies concerned in the case. 25. In July 1995 a private, non-statutory inquiry was commissioned by three State agencies with statutory responsibilities towards Christopher Edwards – the Prison Service, Essex County Council and North Essex Health Authority. Its terms of reference were: “To investigate the death of Mr Edwards in Chelmsford Prison, including factors in his and Mr Linford's detention which are relevant to that, and in particular: the extent to which their reception, detention, management and care corresponded to statutory obligations, Prison Service Standing Orders and Health Care Standards and local operational policies. 1. To examine the adequacy, both in fact and of relevant procedures, of collaboration and communication between the agencies (HM Prison Service, the Essex Police, the courts, MidEssex Community and Mental Health NHS Trust and its predecessor, and Essex County Council Social Services Department) involved in the care, custody and control of Mr Edwards and Mr Linford, or in the provision of services to them. 2. To examine the circumstances surrounding the arrest, detention and custody of Mr Linford and Mr Edwards by Essex Police, including whether all relevant information was effectively and efficiently passed between Essex Police, the prison service, the courts, and any other relevant agencies ...; 3. To examine all the relevant circumstances surrounding the treatment and care of Mr Edwards and Mr Linford, by the health service and social services, and in particular: the extent to which Mr Edwards and Mr Linford's care corresponded to relevant statutory obligations, relevant guidance from the Department of Health ... and local operational policies. 4. To prepare a report and make recommendations to North Essex Health Authority, Essex County Council Social Services Department and HM Prison Service, and other such agencies as are identified as appropriate ...” 26. In February 1996 the applicants were advised by their solicitors that they had a claim for funeral costs and a potential claim for compensation and any pain and suffering between Christopher Edwards's injury and death, but that taking into account legal costs it would not be economic to bring such a claim. 27. In April 1996, the Criminal Injuries Compensation Board awarded the applicants 4,550 pounds sterling (GBP) for funeral expenses but decided that there should be no dependency or bereavement award. 28. The inquiry opened in May 1996. It was chaired by Mr Kieran Coonan QC, Recorder of the Crown Court, the other members of the panel consisting of Professor Bluglass (Emeritus Professor of Forensic Psychiatry at the University of Birmingham), Mr Gordon Halliday (former Director of Social Services, Devon County Council and member of the Mental Health Commission), Mr Michael Jenkins (former Governor of Oxford Prison and Long Lartin Prison and HM Deputy Chief Inspector of Prisons 1987-92) and Mr Owen Kelly (Commissioner of the City of London Police 1985-93). They were assisted by a firm of solicitors appointed by the commissioning agencies to provide secretarial and administrative support and to arrange for the attendance of witnesses. Two solicitors from this firm were appointed as advocates to the inquiry. 29. The inquiry received evidence on fifty-six days over a period of ten months. It sat in private. It had no powers of compulsion of witnesses or production of documents. Two prison officers refused to give evidence. The inquiry report later noted that one of these had potentially significant evidence and his refusal was said to be “all the more regrettable since he had passed by Christopher Edwards's cell shortly before he met his death”. The inquiry panel conducted visits to the police stations, Magistrates' Court building and prison concerned. Professor Bluglass, a member of the panel, interviewed Richard Linford in hospital. About 150 witnesses attended the inquiry to give evidence, while a considerable number of others submitted written evidence. 30. In November 1997 the applicants issued a summons in the County Court for negligence against the Chief Constable of Essex and Essex County Council. They did not, however, serve it due to legal advice from their solicitors. 31. Draft extracts of the inquiry's preliminary findings were circulated to those subjected to criticism to allow them the opportunity to comment. A number of witnesses were recalled to give evidence on 27 April 1998. 32. The inquiry report was published on 15 June 1998. It concluded that ideally Christopher Edwards and Richard Linford should not have been in prison and in practice they should not have been sharing the same cell. It found “a systemic collapse of the protective mechanisms that ought to have operated to protect this vulnerable prisoner”. It identified a series of shortcomings, including poor record-keeping, inadequate communication and limited inter-agency cooperation, and a number of missed opportunities to prevent the death of Christopher Edwards. 33. The findings included the following: (a) Ideally, if suitable beds had been available, Christopher Edwards should have been admitted to hospital for assessment under section 2 of the Mental Health Act 1983. (b) It was a serious omission, and breach of Code C of the Code of Practice under the Police and Criminal Evidence Act 1984 (“PACE”), that no doctor had been asked by the custody officer to see Christopher Edwards. (c) It was a serious failure by Essex Police that a CID2 form was not completed describing Christopher Edwards as a prisoner reasonably suspected of being an exceptional risk on the grounds of mental disturbance, though it was noted that even if he had been so described by the police this would not have been enough, by itself, to ensure that he was admitted to the health care centre at Chelmsford Prison. (d) At the Magistrates' Court hearing on 28 November 1994 no consideration was given to section 35 of the 1983 Act which provided for a remand to hospital for assessment. (e) No attempt was made by the court to notify the prison authorities, in particular the senior medical officer, that Christopher Edwards was suspected of suffering from a mental illness. (f) Information provided to the prison by the applicants about Christopher Edwards's psychiatric background was not recorded or passed on to the person carrying out the screening. (g) When Christopher Edwards arrived at Chelmsford Prison there was no medical officer on duty, in breach of the Prison Service Health Care Standards. (h) The prison health care worker, Mr N., who assessed Christopher Edwards was inadequately trained in the recognition of mental disorder and had been given insufficient guidance. The screening was rushed and superficial and did not take place in adequate conditions of privacy. (i) Mr N. had not been provided with any information about the concerns as to Christopher Edwards's mental condition by the police or the court. If he had received a CID2 form identifying mental disturbance or the court had expressed some concern, this might have prompted sufficient residual doubts to cause him to err on the side of caution and have him admitted to the health centre for the first night. (j) The cell's call system was defective; it had been pressed up to seventeen minutes before the alarm was raised by Richard Linford banging on the door and the warning buzzer had not sounded, or if it did it only sounded briefly. If it had functioned, a prompt response might have saved Christopher Edwards's life. The system could be disabled simply by wedging a matchstick behind the re-set button on the control panel and it could not be ruled out that it might have been tampered with by a prison officer or prisoner who wanted a “quiet night”. The fact that it could so easily be disabled rendered the system inadequate and unsafe. It was also noted that according to good practice, where the cell's call system was defective, either the occupants should be moved to another cell or effective visual monitoring should be provided, as a cell could not be certified fit for occupation without a method of communication in working condition. (k) Richard Linford had a history of violent outbursts and assaults, including a previous assault on a cell-mate in prison. He had been admitted to mental hospital in 1988, and subsequently had been diagnosed as suffering from schizophrenia. Despite psychotic episodes and further assessments, he was not admitted to hospital after September 1994, as he was not considered to be suffering from acute mental illness. A case conference was held on 24 October 1994, where one of Richard Linford's general practitioners and a police officer expressed the view that he was capable of serious violence or murder. However, no formal risk assessment was carried out. The consultant psychiatrist did not accept that the risk to public safety was serious and it was decided to make one last attempt to induce Richard Linford to take depot medication before detaining him under section 3 of the 1983 Act. On 7 November 1994, it was reported to the consultant that Richard Linford was refusing depot medication. (l) After Richard Linford's arrest on 26 November, no attempt was made to locate his medical notes before being assessed. The psychiatric registrar was unaware of the case conference or the outline plan to detain him. (m) No CID2 form was filled in by the police for Richard Linford despite his attacks on two officers, as the officer concerned did not know that such a form existed. (n) The police, prosecution and magistrates were aware that Richard Linford was described as dangerous but no formal warning was given to the prison authorities. (o) At Chelmsford Prison, Richard Linford was screened by Mr N., who knew nothing about him except that he had been “difficult” in the police station; although the provision of a CID2 form would not have been conclusive, information about his previous convictions (and admittance to hospital) might have prompted a closer appraisal and he might have had sufficient doubts to have him admitted to the health care centre despite the absence of really bizarre symptoms. 34. Following the publication of the report, the applicants sought advice as to whether there were any civil remedies available to them in the light of the findings of the inquiry. At a conference on 2 October 1998, they were advised by counsel that there were still no available civil remedies. The inquiry had made no relevant findings in relation to whether any time elapsed between their son being injured and his death, which would have determined whether they had any action in respect of pain and suffering experienced by their son before he died. 35. By letter of 25 November 1998, the Crown Prosecution Service maintained their previous decision that there was insufficient evidence to proceed with criminal charges. The applicants' counsel advised on 10 December 1998 that, notwithstanding the numerous shortcomings, there was insufficient material to found a criminal charge of gross negligence against any individual or agency. 36. By letter dated 15 December 2000, the Police Complaints Authority (PCA) provided the applicants with a report on their complaints about police conduct in dealing with Christopher Edwards and on the subsequent investigation into his death. The report upheld fifteen of the complaints and made a number of recommendations to Essex Police in relation to practice and procedure. It found, inter alia, a breach of the Code of Practice under PACE in that the police failed to summon a doctor to the police station when Christopher Edwards's behaviour led them to believe that he might be suffering from a mental illness and that, as regarded the failure of the officers to fill in a CID2 form identifying Christopher Edwards and Richard Linford as exceptional risks on grounds of mental disturbance, the officers concerned had been insufficiently informed as to the existence and purposes of the form. It also upheld complaints about the police investigation after the death, including a failure by the police investigators to test the cell buzzer properly to establish its effectiveness, the loss of the list of prisoners held on the relevant landing on the night of the incident and a failure to interview relevant persons in the prison, for example, Mr N., the health care worker, the prison doctor and the prison probation officer concerning the allegation of criminal negligence raised by the applicants. 37. Under the common law, no one can recover damages in tort for the death of another. 38. The Fatal Accidents Act 1976 confers a right of action for a wrongful act causing death. Section 1(1) provides: “If death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.” 39. However, the statutory right of action is reserved to the deceased's dependants (section 1(2) which allows the recovery of their pecuniary loss). If there are no dependants, there is no pecuniary loss to recover as damages. Bereavement damages (fixed at GBP 7,500) are only available to the parents of a child under the age of 18 (section 1A(2)). Funeral expenses are recoverable (section 3(5)). 40. The Law Reform (Miscellaneous) Provisions Act 1934 provides for the survival of causes of action for the benefit of the deceased's personal estate. The relevant part of section 1(1) provides: “Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate.” 41. This enables recovery on behalf of the estate of damages for losses suffered by the deceased before he died, including any non-pecuniary loss such as damages for pain and suffering experienced between the infliction of injury and death. Where death is instantaneous, or where it cannot be proved that the deceased experienced pain and suffering before death, damages are not recoverable under the 1934 Act and the only recoverable amount would be funeral expenses. 42. Two cases have arisen since the entry into force on 2 October 2000 of the Human Rights Act 1998 concerning deaths in custody in which the domestic courts have examined the requirements of Articles 2 and 3 of the Convention. 43. In R. on the application of Wright v. the Secretary of State for the Home Department ([2001] High Court, Administrative Court (England and Wales) 520, 20 June 2001), proceedings were brought by the mother and aunt of a man who died in custody as a result of a severe asthma attack in which it was alleged that his treatment prior to his death did not comply with Articles 2 or 3 of the Convention and that there had been a failure to provide a proper investigation into his death. The High Court found that it was arguable that the Prison Service had breached Articles 2 and 3 in its treatment of this prisoner and that, as the inquest and civil proceedings did not constitute an effective official investigation for the purpose of the procedural obligations under these provisions, the claimants were entitled to an order that the Secretary of State set up an independent investigation into the circumstances of the death. Although the death had occurred prior to 2 October 2000, the court held that there was a continuing obligation after that date to provide an effective investigation in the special circumstances of that case where the death was still the subject of active debate and controversy. 44. In R. on the application of Amin v. the Secretary of State for the Home Department ([2001] High Court, Administrative Court (England and Wales) 719, 5 October 2001), where 19-year-old Zahid Mubarek was bludgeoned to death by a violent and racist prisoner, there was a claim that the Secretary of State had failed to hold an open and public investigation into the circumstances of the death. The High Court found that internal inquiry by the Prison Service and the criminal trial of the assailant did not constitute an effective investigation for the purposes of the procedural obligation under Article 2, principally as it did not establish why on that night Zahid Mubarek was sharing a cell with his assailant. The claimants were accordingly entitled to a declaration that an independent public investigation with the family legally represented, provided with the relevant material and able to cross-examine the principal witnesses, must be held to satisfy the obligations imposed by Article 2 of the Convention. | 1 |
dev | 001-22702 | ENG | HRV | ADMISSIBILITY | 2,002 | NOGOLICA v. CROATIA | 1 | Inadmissible | Christos Rozakis | The applicant, Mr Zvonko Nogolica, is a Croatian citizen, who was born in 1962 and lives in Zagreb. He is represented before the Court by Ms Marta Marić, a lawyer practising in Zagreb. The facts of the case, as submitted by the applicant, may be summarised as follows. On 5 October 1995 the applicant filed two civil actions for damages with the Zagreb Municipal Court (Općinski sud u Zagrebu), one against the newspaper “Arena” and the other against the newspaper “Globus International”, claiming that these newspapers had published libellous articles about him. On 22 February 1996 and 9 June 1997 the first instance court held hearings. At the hearing on 17 October 1997 the Court heard the applicant. At the hearing on 1 October 1998 the court heard one witness. The hearing scheduled for 19 November 1998 was adjourned for 12 March 1999 when the court heard another witness and an expert. At the next hearing on 2 February 2000 the court heard yet another witness and concluded the trial. The first instance judgment, rejecting the applicant’s claim, was served on the applicant on 10 April 2000. On 24 April 2000 the applicant filed an appeal against the judgment. On 5 March 2001 the case-file was transferred to the Zagreb County Cout (Županijski sud u Zagrebu) as the appellate court. The proceedings are presently pending before the appellate court. The first instance court held a hearing on 1 April 1996. At the hearing on 17 April 1998 the defendants submitted their replies to the applicant’s claim. At the next hearing on 13 April 1999 the court heard the applicant. The hearings scheduled for 27 September 1999 and 26 November 1999 were adjourned because the witnesses summoned for these hearings did not appear. On 28 February 2000 the court heard one witness and concluded the trial. Four months later the first instance judgment, rejecting the applicant’s claim, was served on the applicant. On 6 June 2000 the applicant appealed against the first instance judgment. On 5 March 2001 the case-file was transferred to the Zagreb County Court as the appellate court. The proceedings are presently pending before the appellate court. Section 26 of the Constitutional Act on the Changes of the Constitutional Act on the Constitutional Court (entered into force on 15 March 2002, published in the Official Gazette no. 29 of 22 March 2002 - hereinafter “The Act of 15 March 2002” - Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske) introduced a new Section 59 (a), which subsequently became Section 63 of the 2002 Constitutional Act on the Constitutional Court. The relevant parts of that Section read as follows: (1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant’s rights and obligations or a criminal charge against him ... (2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits... (3) In a decision under paragraph 2 of this Article, the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request for its payment. | 0 |
dev | 001-83619 | ENG | TUR | CHAMBER | 2,007 | CASE OF SARACOGLU AND OTHERS v. TURKEY | 4 | Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5 | null | 4. The applicants were born in 1978, 1977, 1979, 1983, 1980 and 1978 respectively and live in Antalya. 5. On 27 April 2001 the applicants were taken into custody by police officers from the Anti-Terrorism Branch of the Diyarbakır Security Directorate. According to the arrest and search protocols, the applicants were arrested in the course of a police operation carried out against an illegal organisation, namely the DHKPC (the Revolutionary People's Liberation Party-Front) as they were considered to be involved in the activities of this organisation at the university. 6. On 29 April 2001 the deputy director of the Anti-Terrorism Branch of the Diyarbakır Security Directorate requested the public prosecutor at the Diyarbakır State Security Court to extend the applicants' custody period for two days. The public prosecutor at the Diyarbakır State Security Court granted the requested extension. 7. On 1 May 2001 the Diyarbakır Security Directorate requested the Diyarbakır State Security Court to extend the custody period for a further six days. The single judge of the State Security Court duly extended the custody period for six days starting from 1 May 2001. 8. On 3 May 2001 the applicants made statements before the police. 9. On 4 May 2001 the applicants were brought before a doctor, who noted that there were no signs of ill-treatment on their bodies. 10. On the same day, the applicants made statements before the public prosecutor at the Diyarbakır State Security Court and subsequently, a single judge of the state security court, who ordered that Ertuğrul Saraçoğlu, Göksel Avcı, and Ali Kemal Mart be detained on remand and the other applicants be released. Before the judge, one of the applicants, Göksel Avcı alleged that he had been subjected to ill-treatment while in custody. 11. On 8 May 2001 the applicants' representative filed an objection with the court requesting that Ertuğrul Saraçoğlu, Göksel Avcı and Ali Kemal Mart be released. In his petition, the representative maintained, inter alia, that the applicants had been subjected to different types of ill-treatment while in custody. He alleged that the applicants had been beaten, deprived of food and water, that their testicles had been squeezed and electric shocks had been administered. 12. On 11 May 2001 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment charging the applicants with membership of the DHKP-C under Article 168 § 2 of the Criminal Code and Article 5 of Law no. 3713. 13. On 4 July 2001 the Diyarbakır State Security Court ordered the applicants' release pending trial, holding that the relevant evidence had been collected and that the applicants were students and had to take their exams at the university. 14. The applicants maintained before the trial court that they had signed their statements under duress while in police custody. Göksel Avcı reiterated his allegation of ill-treatment. 15. On 24 January 2002 the Diyarbakır State Security Court acquitted the applicants of the charges against them. 16. On 21 March 2002 the judgment of the first-instance court became final as neither the public prosecutor nor the applicants filed an appeal against it. 17. On 24 April 2002 three of the applicants, namely Ali Kemal Mart, Göksel Avcı and Ertuğrul Saraçoğlu, together with another person M.D., who had also been in police custody with the applicants between 27 April and 4 May 2001, initiated proceedings before the Diyarbakır Assize Court and requested compensation for the time they had spent in police custody. On 10 December 2003 the court awarded 500,000,000 Turkish liras (TRL) –approximately 300 euros- each to Ali Kemal Mart, Göksel Avcı, Ertuğrul Saraçoğlu and TRL 250,000,000 to M.D. in respect of non-pecuniary compensation. 18. The fourth paragraph of Article 128 of the Code of Criminal Procedure (as amended by Law no. 3842/9 of 18 November 1992) provides that any person who has been arrested and/or in respect of whom a prosecutor has made an order for his or her continued detention may challenge that measure before the appropriate district judge and, if successful, be released. 19. Section 1 of Law no. 466 on the Payment of Compensation to Persons Unlawfully Arrested or Detained provides: “Compensation shall be paid by the State in respect of all damage sustained by persons: (1) who have been arrested, or detained under conditions or in circumstances incompatible with the Constitution or statute; (2) who have not been immediately informed of the reasons for their arrest or detention; (3) who have not been brought before a judicial officer after being arrested or detained within the time allowed by statute for that purpose; (4) who have been deprived of their liberty without a court order after the statutory time allowed for being brought before a judicial officer has expired; (5) whose close family have not been immediately informed of their arrest or detention; (6) who, after being arrested or detained in accordance with the law, are not subsequently committed for trial ..., or are acquitted or discharged after standing trial; or (7) who have been sentenced to a term of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only...” | 1 |
dev | 001-22470 | ENG | FIN | ADMISSIBILITY | 2,002 | SVED and OTHERS v. FINLAND | 4 | Inadmissible | Nicolas Bratza | The applicants, Mrs Stina Lise-Lott Sved, Ms Erika Sved, Ms Elin Sved and Mr Markus Sved, are Finnish nationals, who were born in 1957, 1985, 1987 and 1988 respectively and live in Närpiö, Finland. They are the widow and the three children of the late Mr Rune Sved. They are represented before the Court by Mr Matias Wallgren, a lawyer practising in Helsinki, Finland. The facts of the case, as submitted by the applicants, may be summarised as follows. On 8 November 1995 Mr Rune Sved, who was a farmer, applied for a subsidy to give up greenhouse farming. On 19 January 1996 the Pension Fund for Farming Industry (maatalousyrittäjien eläkelaitos, lantbruksföretagarnas pensionsanstalt) decided to grant Mr Sved a subsidy of FIM 263,800 (approximately 44,400 euros) on condition that the greenhouses were demolished or otherwise permanently taken out of production and the relevant area adjusted to the surrounding landscape. Written information when these measures had been carried out was requested as a condition of payment. Mr Rune Sved died on 21 January 1996 without knowing about the decision. On 6 March 1996 Mr Sved’s widow requested that the subsidy be paid to his estate. On 15 March 1996 the Pension Fund refused to pay the subsidy as the greenhouses had not been demolished before the death of Mr Rune Sved. The applicants appealed to the Pension Board (eläkelautakunta, pensionsnämnden), requesting payment of the subsidy. The Board decided, on 12 February 1997, that the subsidy could not be paid to Mr Sved’s estate since he had not demolished the greenhouses himself during his lifetime. On 27 March 1997, the applicants appealed to the Insurance Court (vakuutusoikeus, försäkringsdomstolen), contending that the Board’s decision was unreasonable as Mr Rune Sved had not been able to demolish the greenhouses as he had not even known about the decision before he died. They noted that they had no other choice than to continue the greenhouse production or to let the greenhouses to another farmer if the court’s decision was not favourable to them. It appears from the statement of appeal that the greenhouses had not been demolished by 27 March 1997. On 2 September 1998 the Insurance Court upheld the Board’s decision. According to Section 4, subsections 1 and 2, of the Act on Subsidy for Reducing Greenhouse Production and Apple Farming (laki kasvihuonetuotannon ja omenanviljelyn lopettamistuesta, lag om stöd för nedläggning av växthusproduktion och äppelodling), a subsidy shall be paid to an applicant on condition that his greenhouses are permanently demolished or otherwise taken out of greenhouse production and the relevant areas adjusted to the landscape. According to Section 3 of the above-mentioned Act, the subsidy can only be granted if the applicant has been farming for a minimum period of ten years immediately before giving up this activity, and on condition that commercial greenhouse farming has been carried out in an area exceeding 500 square metres and the greenhouse farmer has been insured for this activity as a private entrepreneur within the meaning of the Act on Pensions for Private Entrepreneurs (yrittäjien eläkelaki, lag om pension för företagare) or as a farmer within the meaning of the Act on Pensions for Farmers (maatalousyrittäjien eläkelaki, lag om pension för lantbruksföretagare). According to Section 10 of the above-mentioned Act, the subsidy is paid after the greenhouse production or apple farming has ceased. | 0 |
dev | 001-5399 | ENG | NLD | ADMISSIBILITY | 2,000 | KNEL AND VEIRA v. THE NETHERLANDS | 4 | Inadmissible | Gaukur Jörundsson;Luigi Ferrari Bravo | The first applicant, Ms Knel, is the mother of the second applicant, Veira. Both applicants are resident in Rotterdam. Ms Knel had a relationship with Veira’s father out of which Veira was born on 17 December 1981. It is alleged that this relationship was terminated soon after Veira’s birth, after which Veira lived with his mother Ms Knel. At that time both applicants were resident in Surinam and had Surinam nationality. Ms Knel married another man. She and her husband moved to the Netherlands in 1985, leaving Veira with his paternal grandparents. She now has Netherlands nationality. Veira still has Surinam nationality. In 1987 Ms Knel applied to the Minister for Foreign Affairs for a provisional residence visa (machtiging tot voorlopig verblijf) in Veira’s name. Such a visa is normally a prerequisite for the grant of a residence permit which confers more permanent residence rights. By a letter dated 12 March 1987 the Visa Service of the Ministry of Justice informed the Netherlands embassy in Surinam that there was no objection to the grant of a provisional residence visa to Veira. The applicants state that they were never informed of any decision, whether favourable or otherwise. They did not, however, take proceedings on the basis of an implied refusal, as they might have done within a reasonable time if it appeared that a decision was not forthcoming. It appears that Veira remained in Surinam. A new request for a provisional residence visa was lodged in 1992, through the Netherlands embassy in the Surinam capital Paramaribo. On 25 September 1992 the Minister for Foreign Affairs gave a decision refusing such a visa on the ground that Veira, having been resident with his grandparents since 1985, had ceased to be part of his mother’s family unit. The applicants lodged an objection (bezwaarschrift) against this decision on 20 October 1992. Following a hearing on 21 January 1993 the Minister for Foreign Affairs gave a decision on 15 March 1993 dismissing the objection. This decision was transmitted to the embassy in Paramaribo. The applicants lodged an appeal with the Judicial Division (Afdeling rechtspraak) of the Council of State (Raad van State) against the Minister’s decision on 8 April 1993. This appeal was withdrawn on 21 June 1995. It is stated that their reason for so acting was that Veira could not obtain a passport from the Surinam authorities, and that without a passport they did not expect the appeal to have any prospects of success. As alleged by the applicants, the situation in Surinam had become untenable due to the deterioration of Veira’s grandparents’ health. Ms Knel decided to bring Veira into the Netherlands without complying with the formalities, and on 22 October 1993 Veira entered the Netherlands. On 13 October 1995, nearly two years after Veira had entered the Netherlands, Ms Knel applied in his name for a residence permit. By a decision dated 22 March 1996 the Deputy Minister of Justice refused to grant such a permit. On 3 June 1996 the applicants lodged an administrative appeal (administratief beroep) against the Deputy Minister’s refusal. This was rejected on 13 December 1996. The applicants appealed to the Regional Court (Arrondissementsrechtbank) of The Hague on 24 December 1996. Following a hearing on 17 June 1997 the Regional Court dismissed the appeal on 21 June 1997. The Regional Court considered that Veira could be cared for in Surinam by a sister of Veira’s father, with financial assistance from Ms Knel if need be, and that the applicant’s separation in 1985 had been a consequence of Ms Knel’s choices with regard to the way she had wished to lead her personal life. It appears from a letter received from the applicants’ representative on 17 June 1998 that the Netherlands authorities were then contemplating removing Veira to Surinam. However, the Court has not been informed that this has taken place. | 0 |
dev | 001-58365 | ENG | GBR | GRANDCHAMBER | 1,999 | CASE OF HASHMAN AND HARRUP v. THE UNITED KINGDOM | 1 | Not necessary to examine Art. 11;Violation of Art. 10;Costs and expenses award - Convention proceedings | Luzius Wildhaber;Nicolas Bratza;Paul Mahoney;Simon Brown | 4. On 3 March 1993 the applicants blew a hunting horn and engaged in hallooing with the intention of disrupting the activities of the Portman Hunt. A complaint was made to the Gillingham magistrates that the applicants should be required to enter into a recognisance with or without sureties to keep the peace and be of good behaviour pursuant to the Justices of the Peace Act 1361. 5. The applicants were bound over to keep the peace and be of good behaviour in the sum of 100 pounds sterling for twelve months on 7 September 1993. They appealed to the Crown Court, which heard their appeals on 22 April 1994 at Dorchester. 6. The Crown Court, comprising a Crown Court judge and two magistrates, found that the applicants had not committed any breach of the peace and that their conduct had not been likely to occasion a breach of the peace. It found the following facts: “(a) On 3rd March, 1993, Edward Lycett Green, a joint Master of the Portman Hunt, saw the [applicants] in the environs of the Ranston Estate, and heard the sound of a hunting horn being blown from that position. Later, at about 1.15 p.m., he saw the [applicants’] car on Iwerne Hill and again heard the sound of a hunting horn being blown. On that occasion he also heard [the second applicant] hallooing. Some hounds were drawn towards the [applicants], and hunt staff had to be deployed to recover them. (b) At about 1.45 p.m., a solitary hound ran out of Rolf’s Wood along the Higher Shaftesbury Road. It suddenly, and for no apparent reason, ran across the road and was killed by a lorry travelling in the direction of Blandford Forum. (c) At about 3.45 p.m., [the first applicant] stated to a police constable that he had been blowing a hunting horn, but nowhere near where the hound was killed. The police officer seized the hunting horn. (d) Iwerne Hill is about a mile from where the hound was killed, and, at the time of its death, it was travelling away from the hunt and away from Iwerne Hill. (e) On their own admissions each [applicant] was a hunt saboteur. [The first applicant] admitted that he had blown the horn and [the second applicant] that she shouted at hounds. Their object was to distract hounds from hunting and killing foxes. (f) An expert, a Mr A. Downes, told us that he had observed hunts for many years and had frequently seen hounds running loose on the road away from the main pack. In his opinion, this caused danger to hounds and to other users of the road.” 7. On the basis of these facts, the Crown Court was of the following opinion: “(a) The [applicants’] behaviour had been a deliberate attempt to interfere with the Portman Hunt and to take hounds out of the control of the huntsman and the whippersin. (b) That in this respect the actions of the [applicants] were unlawful, and had exposed hounds to danger. (c) That there had been no violence or threats of violence on this occasion, so that it could not be said that any breach of the peace had been committed or threatened. (d) That the [applicants] would repeat their behaviour unless it were checked by the sanction of a bind over. (e) That the [applicants’] conduct had been contra bonos mores. (f) That R. v. Howell [see below] was distinguishable in that it related to the power of arrest for breach of the peace, which could only be exercised if there was violence or the immediate likelihood of violence. (g) That the power to bind over ‘to keep the peace and be of good behaviour’ was wider than the power of arrest and could be exercised whenever it was proved either that there had been a breach of the peace or that there had been behaviour contra bonos mores, since a breach of the peace is ex hypothesi contra bonos mores, and the words ‘to keep the peace’ added nothing to what was required of the defendant by the words ‘to be of good behaviour’.” 8. The court noted that neither the Law Commission’s report on binding over nor the European Convention was part of domestic law. 9. The Crown Court judge agreed to state a case to the High Court, but legal aid for the case stated was refused on 5 August 1994. The applicants’ appeals against the decisions were dismissed on 19 September 1994. 10. Breach of the peace – which does not constitute a criminal offence (R. v. County of London Quarter Sessions Appeals Committee, ex parte Metropolitan Police Commissioner [1948] 1 King’s Bench Reports 670) – is a common-law concept of great antiquity. However, as Lord Justice Watkins, giving judgment in the Court of Appeal in the case of R. v. Howell ([1982] 1 Queen’s Bench Reports 416), remarked in January 1981: “A comprehensive definition of the term ‘breach of the peace’ has very rarely been formulated …” (p. 426) He continued: “We are emboldened to say that there is likely to be a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.” (p. 427) 11. In a subsequent case before the Divisional Court (Percy v. Director of Public Prosecutions [1995] 1 Weekly Law Reports 1382), Mr Justice Collins followed Howell in holding that there must be a risk of violence before there could be a breach of the peace. However, it was not essential that the violence be perpetrated by the defendant, as long as it was established that the natural consequence of his behaviour would be to provoke violence in others: “The conduct in question does not itself have to be disorderly or a breach of the criminal law. It is sufficient if its natural consequence would, if persisted in, be to provoke others to violence, and so some actual danger to the peace is established.” (p. 1392) 12. In Nicol and Selvanayagam v. Director of Public Prosecutions ([1996] 160 Justice of the Peace Reports 155), Lord Justice Simon Brown stated: “… the court would surely not find a [breach of the peace] proved if any violence likely to have been provoked on the part of others would be not merely unlawful but wholly unreasonable – as of course, it would be if the defendant’s conduct was not merely lawful but such as in no material way interfered with the other’s rights. A fortiori, if the defendant was properly exercising his own basic rights, whether of assembly, demonstration or free speech.” (p. 163) 13. Behaviour contra bonos mores has been described as “conduct which has the property of being wrong rather than right in the judgment of the majority of contemporary fellow citizens” (per Lord Justice Glidewell in Hughes v. Holley [1988] 86 Criminal Appeal Reports 130). 14. In R. v. Sandbach, ex parte Williams ([1935] 2 King’s Bench Reports 192) the Divisional Court rejected the view that a person could not be bound over to be of good behaviour when there was no reason to apprehend a breach of the peace. As in the case of binding over to keep the peace, there had to be some reason to believe that there might be a repetition of the conduct complained of before an order to be of good behaviour could be made. 15. Magistrates have powers to “bind over” under the Magistrates’ Courts Act 1980 (“the 1980 Act”), under common law and under the Justices of the Peace Act 1361 (“the 1361 Act”). A binding-over order requires the person bound over to enter into a “recognisance”, or undertaking secured by a sum of money fixed by the court, to keep the peace or be of good behaviour for a specified period of time. If he or she refuses to consent to the order, the court may commit him or her to prison, for up to six months in the case of an order made under the 1980 Act or for an unlimited period in respect of orders made under the 1361 Act or common law. If an order is made but breached within the specified time period, the person bound over forfeits the sum of the recognisance. A binding-over order is not a criminal conviction (R. v. County of London Quarter Sessions, ex parte Metropolitan Police Commissioner [1948] 1 King’s Bench Reports 670). 16. Section 115 of the 1980 Act provides: “(1) The power of a magistrates’ court on the complaint of any person to adjudge any other person to enter into a recognisance, with or without sureties, to keep the peace or to be of good behaviour towards the complainant shall be exercised by order on complaint. … (3) If any person ordered by a magistrates’ court under subsection (1) above to enter into a recognisance, with or without sureties, to keep the peace or to be of good behaviour fails to comply with the order, the court may commit him to custody for a period not exceeding 6 months or until he sooner complies with the order.” 17. In addition to the statutory procedure, magistrates have powers to bind over at common law and under the 1361 Act. These powers allow magistrates, at any stage in proceedings before them, to bind over any participant in the proceedings if they consider that the conduct of the person concerned is such that there might be a breach of the peace or that his or her behaviour has been contra bonos mores. It is not open to the justices to attach specific conditions to a binding-over order (Ayu [1959] 43 Criminal Appeal Reports 31; Goodlad v. Chief Constable of South Yorkshire [1979] Criminal Law Review 51). 18. An order of the magistrates to require a person to enter into a recognisance to keep the peace or to be of good behaviour can be appealed either to the High Court or the Crown Court. An appeal to the High Court is limited to questions of law, and proceeds by way of “case stated”. An appeal to the Crown Court, under the Magistrates’ Courts (Appeals from Binding-Over Orders) Act 1956, section 1, proceeds as a rehearing of all issues of fact and law. 19. In response to a request by the Lord Chancellor to examine binding-over powers, the Law Commission (the statutory law reform body for England and Wales) published in February 1994 its report entitled “Binding Over”, in which it found that: “4.34 We regard reliance on contra bonos mores as certainly, and breach of the peace as very arguably, contrary to elementary notions of what is required by the principles of natural justice when they are relied on as definitional grounds justifying the making of a binding-over order. Because an order binding someone to be of good behaviour is made in such wide terms, it fails to give sufficient indication to the person bound over of the conduct which he or she must avoid in order to be safe from coercive sanctions … … 6.27 We are satisfied that there are substantial objections of principle to the retention of binding over to keep the peace or to be of good behaviour. These objections are, in summary, that the conduct which can be the ground for a bindingover order is too vaguely defined; that binding-over orders when made are in terms which are too vague and are therefore potentially oppressive; that the power to imprison someone if he or she refuses to consent to be bound over is anomalous; that orders which restrain a subject’s freedom can be made without the discharge of the criminal, or indeed any clearly defined, burden of proof; and that witnesses, complainants or even acquitted defendants can be bound over without adequate prior information of any charge or complaint against them.” (Law Commission Report no. 222) The Law Commission recommended abolition of the power to bind over. | 1 |
dev | 001-75646 | ENG | RUS | CHAMBER | 2,006 | CASE OF MAMEDOVA v. RUSSIA | 2 | Violation of Art. 3;Violation of Art. 5-3;Violations of Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 6. The applicant was born in 1974 and lives in Vladimir, Russia. 7. On 20 July 2004 a criminal investigation into a financial fraud allegedly committed by the applicant in conspiracy with another person, was opened. 8. On 22 July 2004 the applicant’s flat was searched and she was informed about the suspicion against her. 9. On 23 July 2004 the applicant was arrested and charged with large-scale fraud, an offence under Article 159 § 3 of the Russian Criminal Code. 10. On 24 July 2004 the Frunzenskiy District Court of Vladimir ordered the applicant’s detention on the ground that she was suspected of a serious criminal offence and that she would abscond because her accomplice had already absconded. She could also destroy evidence because some documents had not yet been seized. 11. On 26 July 2004 the applicant sent her notice of appeal. She asked for a more lenient preventive measure and petitioned the court to take into account that she was charged with a financial crime, that she had no criminal record, had a permanent place of residence and employment in Vladimir, family ties, a stable way of life and two minor children aged four and three. If she wished, she could have absconded after the search in her flat. The fact that she had not fled from justice proved that she had no such intention. She also complained about inhuman conditions of her detention and sought leave to appear before the appeal court. 12. On 10 August 2004 the Vladimir Regional Court upheld the detention order of 24 July 2004, finding that it had been lawful, sufficiently reasoned and justified. In the Regional Court’s view, the District Court had correctly assessed the applicant’s “character” and other materials presented by the prosecutor. The appeal hearing took place in the presence of the prosecutor who repeated the arguments advanced before the District Court and two counsels for the applicant. The applicant’s request for leave to appear in person was refused because her arguments were clearly set out in her notice of appeal and did not require additional clarifications. 13. On 22 September 2004 the Frunzenskiy District Court extended the applicant’s detention until 23 November 2004. The court grounded its decision on the gravity of the charge against the applicant and on the possibility that she could abscond or obstruct justice. 14. On 27 September 2004 the applicant appealed. She complained that the decision of 22 September 2004 was not sufficiently motivated, that the court did not take into account her individual situation, that the conditions of her detention were inhuman. She asked for release on bail. 15. The appeal hearing was scheduled for 19 October 2004. On that day the hearing was adjourned because the applicant had not been brought to the courthouse. 16. On 3 November 2004 the Vladimir Regional Court found that there were no reasons to vary the preventive measure and upheld the decision of 22 September 2004. 17. On 22 November 2004 the Frunzenskiy District Court extended the applicant’s detention until 23 December 2004, finding as follows: “... it is necessary to carry out many investigative actions with [the applicant’s] participation. [The applicant] is charged with a serious criminal offence. Besides, the prosecution submitted documents showing that, once released, [the applicant] can flee from justice and interfere with the establishment of the truth. The court sees no reasons to vary or cancel the preventive measure applied to [the applicant].” 18. On 1 December 2004 the applicant lodged a notice of appeal. On 27 December 2004 the Vladimir Regional Court upheld the decision. It found that the decision had been lawful and sufficiently reasoned. 19. On 22 December 2004 the Frunzenskiy District Court extended the applicant’s detention until 23 January 2005 with reference to the gravity of charges and the need for a further investigation. The court also mentioned that the applicant could abscond, obstruct justice or re-offend. 20. On 27 December 2004 the applicant appealed. She referred, in particular, to inhuman conditions of her detention and asked for release on bail. 21. On 1 February 2005 the Vladimir Regional Court upheld the decision of 22 December 2004. In particular, the appeal court noted that “conditions of detention could not be taken into account when deciding on an extension of detention”. 22. On 21 January 2005 the Frunzenskiy District Court extended the applicant’s detention until 20 March 2005. The reasoning was similar to that in the decision of 22 December 2004. 23. On 24 January 2005 the applicant lodged her points of appeal. She submitted that she had already spent six months in custody and that a further extension was permitted under the domestic law only if the case was particularly complex. The prosecution failed to show that her case was particularly complex. Nor did they prove that she intended to abscond or interfere with the establishment of the truth. The prosecution searched the applicant’s flat and office and seized all the papers; for that reason she could not destroy any evidence. The applicant asked the court to take account of her personal situation – her being a mother of two minor children with a permanent place of residence and employment in Vladimir - and inhuman conditions of her detention on remand. She complained that she had not been afforded an opportunity to study the materials submitted by the prosecution in support of their request for extension. 24. On 22 February 2005 the Vladimir Regional Court upheld the decision of 21 January 2005. The appeal court endorsed the reasoning of the first-instance court. It further held: “The opinion of [the applicant’s] lawyer that when considering the extension of detention it is necessary to take into account the conditions of detention in remand centres has no basis in the domestic law... The rules of criminal procedure (Arts. 108, 109 of the Russian Code on Criminal Procedure) do not provide for disclosure of the materials submitted by the prosecution in support of a request for extension. Nor do they require that the court should hear the opinion of the parties concerning [those materials].” 25. On 18 March 2005 the Frunzenskiy District Court ordered the extension of the applicant’s detention until 20 May 2005. It held that the applicant was charged with a serious criminal offence, that it was necessary to conduct an additional investigation and that there were no reasons to vary the preventive measure. 26. On 24 March 2005 the applicant lodged her appeal. On 19 April 2005 the Vladimir Regional Court upheld the decision. 27. On 19 May 2005 the Frunzenskiy District Court extended the applicant’s detention until 20 June 2005. It held that the extension was “objectively justified” because of the complexity of the case, the gravity of the charge and the risk of the applicant’s absconding or her interfering with the establishment of the truth. 28. On 27 May 2005 the applicant appealed. She repeated the arguments set out in the points of appeal of 24 January 2005 and added that her father was seriously ill. On 21 June 2005 the Vladimir Regional Court rejected the appeal. 29. On 17 June 2005 the Frunzenskiy District Court extended the applicant’s detention until 20 July 2005. It referred to the complexity of the case (the case-file comprised 13 binders), the need for a further investigation, the gravity of the charge and the risk of the applicant’s absconding or interfering with the establishment of the truth. 30. On 28 July 2005 the Vladimir Regional Court upheld the decision on appeal. 31. On 14 July 2005 the investigation was completed and the applicant was committed for trial. The applicant’s lawyers petitioned the court for her release. 32. On 19 July 2005 the Leninskiy District Court of Vladimir fixed the first hearing for 2 August 2005 and ordered that the applicant should remain in custody. 33. On 2 August 2005 the Leninskiy District Court established that the case was not ready for consideration on the merits because the applicant had not had sufficient time to study the case file and remitted the case for additional investigation. It ordered that the applicant should meanwhile remain in custody. 34. On 4 August 2005 the acting prosecutor of Vladimir varied the preventive measure. The applicant was released but ordered not to leave the town. 35. The applicant was held in detention facility no. IZ-33/1 in the Vladimir Region. 36. According to a certificate of 11 August 2005 from the facility administration, produced by the Government, the applicant was kept in four cells described as follows: cells nos. 73 and 74 (22 m², 18 bunks, 15 inmates on average), cell no. 69 (24 m², 21 bunks, 14 inmates on average) and cell no. 70 (25 m², 15 bunks, 10 inmates on average). The Government submitted that the applicant had at all times had a separate bunk. 37. The applicant did not dispute the cell measurements and the number of bunks. She disagreed, however, with the number of inmates asserted by the Government. According to her, from July 2004 to March 2005 she was held in cell no. 73 together with 15 to 22 inmates; from 2 to 4 March 2005 she was kept in cell no. 69 which accommodated 14 detainees; thereafter and until 18 May 2005 she shared cell no. 74 with up to 20 inmates; in the night of 18 May 2005 she stayed in cell no. 70 with 10 other inmates; and on 19 May 2005 she was transferred back to cell no. 74 that accommodated up to 20 detainees. In cells nos. 73 and 74 she did not always have a separate bunk. 38. The Government, relying on a certificate of 11 August 2005 from the facility administration, submitted that all cells were equipped with a lavatory pan. The pan had no cover but it was separated from the living area by a one-metre-high brick wall and an additional curtain of 1.2 metre in height. Once a week the inmates were provided with detergent (soda and chlorine). The dining table was situated three meters away from the pan. The inmates were allowed to take a shower once a week. The cells were naturally ventilated through the windows and the door vent. Fans were provided on request. There were no running hot water available but detainees were permitted to use immersion heaters. Besides, hot water for laundry and boiled drinking water was distributed. Once a week inmates were provided with clean bedding, towels and kitchenware. The cells were equipped with fluorescent lamps which functioned during day and night. 39. The applicant disagreed with the Government’s description and submitted that the sanitary conditions were unsatisfactory. The cells swarmed with insects, rats and mice. Inmates had to do their laundry indoors, creating excessive humidity in the cells. There was no artificial ventilation system. A fan was provided only in June 2005. The windows were covered with thick metal bars that blocked access to natural light. The artificial light was never switched off disturbing the applicant’s sleep. 40. The applicant contested the Government’s description of the toilet facilities. The pan was cleaned infrequently and it was very dirty and stinky. What is more, it had no cover: inmates stuck a plastic bottle in the hole in order to prevent smells from spreading. No curtains were provided and inmates had to hang a sheet which did not offer sufficient privacy. No toilet articles were distributed, save for 100 g of soda and chloride and 33 g of laundry soap per week. 41. The applicant was allowed to take a shower once a week. The entire cell was afforded fifteen minutes to shower, although there was only four shower heads. Soap was distributed after a shower. It was extremely cold in the shower room in winter. On the court days or on the days of family visits the applicant missed her chance to take shower. 42. The Government submitted that the applicant had an hour-long walk daily. 43. The applicant conceded that an hour-long walk was organised every day. However, on shower days inmates were not allowed to go outdoors. The entire cell population was often left indoors as collective punishment for a disciplinary offence committed by one inmate. The exercise yards were fenced by brick walls of 2.5 metre in height with bars on the top. They were covered with a metal roof with a one-meter gap between the roof and the top of the walls. In summer it was extremely hot and stifling inside because the sun heated the roof. Most of yards measured 9 m², up to 10 people were brought into the yard at once. 44. Since 1 July 2002 criminal-law matters have been governed by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, the “CCrP”). 45. “Preventive measures” or “measures of restraint” (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (обязательство о явке) (Article 112). 46. When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, re-offend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99). 47. Detention may be ordered by a court if the charge carries a sentence of at least two years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1). 48. After arrest the suspect is placed in custody “pending the investigation”. The maximum permitted period of detention “pending the investigation” is two months but it can be extended for up to eighteen months in “exceptional circumstances” (Article 109 §§ 1-3). The period of detention “pending the investigation” is calculated to the day when the prosecutor sent the case to the trial court (Article 109 § 9). 49. From the date the prosecutor forwards the case to the trial court, the defendant’s detention is “before the court” (or “during the trial”). The period of detention “during the trial” is calculated to the date the judgment is given. It may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3). 50. An appeal may be lodged with a higher court within three days against a judicial decision ordering or extending detention. The appeal court must decide the appeal within three days after its receipt (Article 108 § 10). 51. The Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, provide, in particular, as follows: “10. All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to ... minimum floor space, lighting, heating and ventilation... 11. In all places where prisoners are required to live or work, (a) The windows shall be large enough to enable the prisoners to read or work by natural light, and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation; (b) Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight. 12. The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner. 13. Adequate bathing and shower installations shall be provided so that every prisoner may be enabled and required to have a bath or shower... at least once a week in a temperate climate. 14. All pans of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all time. 15. Prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness... 19. Every prisoner shall... be provided with a separate bed, and with separate and sufficient bedding which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness. 21. (1) Every prisoner... shall have at least one hour of suitable exercise in the open air daily if the weather permits.” 52. The relevant extracts from the 2nd General Report by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) read as follows: “46. Overcrowding is an issue of direct relevance to the CPT’s mandate. All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate... Moreover, the level of overcrowding in a prison, or in a particular part of it, might be such as to be in itself inhuman or degrading from a physical standpoint. 48. Specific mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard... It is also axiomatic that outdoor exercise facilities should be reasonably spacious... 49. Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment... 50. The CPT would add that it is particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners.” 53. The relevant extracts from the CPT’s 10th General Report, governing conditions of detention of women [CPT/Inf (2000) 13], read as follows: “21. ...in all Council of Europe member States, women inmates represent a comparatively small minority of persons deprived of their liberty. This can render it very costly for States to make separate provision for women in custody, with the result that they are often held at a small number of locations (on occasion, far from their homes and those of any dependent children), in premises which were originally designed for (and may be shared by) male detainees. In these circumstances, particular care is required to ensure that women deprived of their liberty are held in a safe and decent custodial environment... 30. The Committee also wishes to call attention to a number of hygiene and health issues in respect of which the needs of women deprived of their liberty differ significantly from those of men. 31. The specific hygiene needs of women should be addressed in an adequate manner. Ready access to sanitary and washing facilities, safe disposal arrangements for blood-stained articles, as well as provision of hygiene items, such as sanitary towels and tampons, are of particular importance. The failure to provide such basic necessities can amount, in itself, to degrading treatment.” | 1 |
dev | 001-22937 | ENG | SWE | ADMISSIBILITY | 2,002 | WALL v. SWEDEN | 4 | Inadmissible | Nicolas Bratza | The applicant is a Swedish national, born in 1944 and living in Stockholm. The respondent Government are represented by their Agent Mrs Eva Jagander, the Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 14 June 1996 a social welfare district committee (sociala distriktsnämnden) in Stockholm applied for a compulsory care order regarding the applicant pursuant to the provisions of the Care of Abusers Act (lagen om vård av missbrukare i vissa fall, 1988:870, hereinafter called the 1988 Act). The committee produced and submitted an investigation report of 3 June 1996 from which it appeared inter alia that the applicant had been sober for several years but that during the last two or three years he had often relapsed into serious periodic abuse of alcohol, drinking up to two or three bottles of strong spirits a day. The last period of abuse commenced in October 1995 with intervals of only a few days. During 1995 and the first part of 1996 the applicant had terminated ongoing treatment for his abuse on several occasions and he had been detoxified ten times. The committee invoked three medical certificates dated 22, 28 and 31 May 1996 respectively, stating, amongst other things, that the applicant declined treatment for his abuse, that there was a risk of psychosis, that his blood pressure had substantially increased due to the abuse causing a risk of acute cerebral bleeding, and that he was in great need of compulsory care under the 1988 Act. In the medical report of 31 May 1996 it was inter alia stated: “[The applicant] had been known at the clinic since 1962. He had been admitted to the clinic 14 times since 1979. In addition, he had come to the emergency ward several times but had refused to stay. [The applicant] was in contact with Dr. Malm at the psychiatric ward of the Danderyd Hospital due to his misuse. [The applicant] refused treatment and help. He suffered from high blood pressure, which was substantially increased due to the misuse and caused a risk of acute cerebral bleeding. A test showed signs of liver damage. [The applicant] was in a very destructive phase of misuse, he was very aggressive and there was a risk of psychosis. He was in great need of compulsory care under the 1988 Act.” The applicant submitted a medical certificate of 16 April 1996 stating notably that compulsory care had had no positive effect on him and that it could rather result in a deterioration of his situation. On 28 June 1996 the County Administrative Court (länsrätten) of the County of Stockholm held an oral hearing in the presence of the applicant, who opposed the application. He stated that substantial personal setbacks had caused him to resume his abuse. However, his personal situation was stable at the time of the application and he had been sober for ten days at the time of the hearing. He wanted to go to a recreation home in order to eat and do physical exercises. On 2 July 1996 the County Administrative Court ordered his compulsory care for the following reasons: “Even considering [the applicant’s] statement that there has been a break in his abuse prior to the oral hearing, the [court] finds that it has been shown that he continuously abuses alcohol and that he is in need of care in order to give up the abuse. It has been ascertained that as a result of the abuse [the applicant] exposes his physical and mental health to serious danger. [The court] also finds that by the abuse [the applicant] imperils his living conditions in other respects; there is particularly a risk that he will be forced out of the labour market. Consequently, he obviously risks having his life destroyed. As regards the question whether the need for care can be met according to the [1980 Social Services Act] or in any other way, the following is noted. [The court] finds that the measure proposed by [the applicant] himself, a stay at the recreation home [Masersgården], obviously cannot be considered as the care needed in his circumstances. The facts of the case show that attempted voluntary care has failed because [the applicant] has lacked the capacity, and periodically the determination, to undergo care. In view of the history of [the applicant’s] abuse and the very serious abuse he has been addicted to since October 1995, a shorter period of sobriety cannot be considered as having altered the prospects for voluntary care. Nor does [the court] find any other reason to believe there are such prospects. In conclusion, [the court] finds that even if [the applicant] now wants to give up his abuse, the necessary care cannot be ensured voluntarily. For these reasons [the court] finds that there are grounds for providing [the applicant] with care pursuant to [the 1988 Act]. The application is therefore granted. The care order shall be immediately enforceable.” On 6 July 1996 at 09.20 the applicant was taken from his home by two police officers. It is in dispute whether he was notified that this would occur beforehand. According to the police records it took forty minutes to bring him to a police custody centre in Stockholm. Shortly thereafter the National Prison and Probation Administration (Kriminalvårdsstyrelsen) brought him to a so-called LVM institution. On arrival at the LVM institution he was placed in a closed ward for the first five days as this was deemed necessary in order for the treatment to commence. On 11 July 1996 the social welfare committee proposed in accordance with section 27 of the 1988 Act that the applicant be transferred to a care programme at another institution. However, the applicant chose to stay at the LVM institution to begin a programme of the Minnesota model. He lost interest in the programme after a couple of weeks. Thereafter he agreed to a treatment at a care facility centre for alcoholics in the Stockholm area and he was granted leave for two days in order to visit the centre. Subsequently, on 18 August 1996 he absconded. Having relapsed into drinking, on 4 September 1996 he returned voluntarily to the LVM institution where he was placed in a closed ward until 9 September 1996. He re-absconded three days latter. In the meantime the applicant had appealed against the care order. He argued that he would be forced out of the labour market if he was not released from the LVM institution. He further maintained that it was unreasonable that, being a socially stable person, he should undergo expensive and unnecessary care. He was not motivated by the intended care and he considered it degrading. He was shocked to be transferred, allegedly handcuffed, by the police on 6 July 1996 to the LVM Institution. On 17 September 1996 the Administrative Court of Appeal (kammarrätten) in Stockholm held an oral hearing in the absence of the applicant, who at that time twice had failed to attend as summoned. By judgment of 9 October 1996 the appellate court upheld the care order, making the same assessment as the lower court. Subsequently, the applicant several times returned to and was discharged from the LVM institution in order to participate in treatment, which allowed him to stay in his own home at night. Thus, he was subject to compulsory care during the periods between 18 September and 21 October 1996, between 30 October and 2 December 1996, and finally between 2 and 10 January 1997. Thereafter, he was formally and permanently discharged from the LVM institution. On 19 March 1997 the applicant appealed against the judgment of 17 September 1996. He invoked the medical certificate dated 16 April 1996. On 12 June 1997 the Supreme Administrative Court (Regeringsrätten) refused leave to appeal. The relevant provisions of the 1988 Act read as follows: Section 1 “All care intended to help individual persons to discontinue their abuse of alcohol, narcotics or volatile solvents must be guided by the goals of the public services as defined in section 1 of the Social Service Act (Socialtjänstlagen, 1980:620). Care must be based on respect for the self-determination and privacy of the individual and must as far as possible be designed and conducted in partnership with the individual.” Section 2 “Care within the social services is supplied to an abuser on a basis of consensus with him, in accordance with the provisions of the Social Service Act. An abuser shall, however, be provided with care regardless of his own consent, subject to conditions defined in this Act (compulsory care). The content and design of compulsory care are subject to the provisions of the Social Services Act, except where otherwise indicated in this Act.” Section 3 “Compulsory care shall be aimed at motivating the abuser in such a way that he may be presumed capable of voluntary participation in continuing treatment and capable of receiving support in order to discontinue his abuse.” Section 4 “A compulsory care order shall be made if any person, as a result of ongoing abuse of alcohol, narcotics or volatile solvents, is in need of care in order to discontinue his abuse and the necessary care cannot be provided under the Social Services Act or in any other way and, as a result of the abuse, he 1. is seriously endangering his physical or mental health. 2. runs an obvious risk of ruining his life, or 3. is liable to inflict serious injury on himself or some person closely related to him...” Section 5 “Compulsory care orders are made by the County Administrative Court.” Section 11 “If, following investigation, the social welfare committee finds that there is cause for providing any person with compulsory care, the committee shall apply for such care to the County Administrative Court. The application shall be accompanied by the investigation report prepared by the committee, and failing some special impediment, a medical certificate regarding the abuser’s current health status. The court may order a medical examination if the application does not contain a medical certificate or if an examination is needed for some other reason.” Section 20 “Compulsory care is to be terminated as soon as the purpose of the care has been achieved and, at the latest, when it has been in progress for six months. Care shall be deemed to have commenced when, on account of an immediate care order or compulsory care, the abuser has presented himself at or been taken to an institution as referred to in section 22 or a hospital. Care is terminated by a discharge order under section 25. “ Section 22 “Compulsory care is provided through residential institutions specially intended for the provisions of care under this Act (LVM institutions). An institution of this kind shall be directed by a board of governors appointed by the National Board of Institutional Care (Statens institutionsstyrelse)... Section 25 “...Decisions concerning admission to and discharge from an LVM institution are made by the person or body in charge of care at the institution...” Section 26 “The person or body in charge of the care at an LVM institution shall keep the social welfare committee continuously informed of the progress of care and shall consult the committee on all matters of importance...” Section 27 “The person or body in charge of care at an LVM institution shall, as soon as the care schedule permits, make an order for the inmate to be given the opportunity of leaving the LVM institution for some other form of care.” Section 29 “If an inmate has resided in an LVM institution for three months without any other form of care materialising, the person in charge of care shall report this fact to the governing body of the institution and indicate the cause.” Section 30 “The social welfare committee shall make effective efforts to ensure that, after the period of care, the individual obtains housing and employment or education, and also to ensure that he receives personal support or treatment for the permanent discontinuation of his abuse.” Section 44 “A decision by the person or body in charge of an LVM institution may be contested by the individual person by appeal to the County Administrative Court if the decision refers to ...rejection of a request for discharge...” Section 45 “The police authority shall render assistance ... at the request of the social committee, to convey a person who is to be provided with care ... to an LVM institution or hospital...” The relevant provisions of the Social Services Act read as follows: Section 1 “Public social services shall, on the basis of democracy and solidarity, promote people’s economic and social security, equality of living conditions and active participation in the life of the community. With due consideration for the responsibility of the individual for his own social situation and that of others, social services shall be aimed at liberating and developing the innate resources of individuals and groups. Activities shall be based on respect for people’s self-determination and privacy ...” Section 11 “The social welfare committee shall work for the prevention and counteraction of abuse of alcohol and other addictive substances. The social welfare committee shall, by means of information supplied to authorities, groups and individual persons and through activation measures, disseminate knowledge concerning the harmful effects of abuse and concerning the help available. The social welfare committee shall actively ensure that the individual substance abuser receives the assistance and care which he needs in order to overcome his abuse. The committee, acting on the basis of consensus with the individual, shall plan the assistance and care and closely monitor compliance with the plan.” Section 26 of the Social Services Ordinance (Socialtjänstförordningen) provides that an inmate at an LVM institution may be subjected to care in a closed ward if this is deemed necessary considering the safety of the inmate himself, other inmates or the staff, or if it is found necessary in order to prevent the inmate from absconding or in order to carry out the treatment. Such detention may last for a maximum of two consecutive months. | 0 |
dev | 001-69139 | ENG | TUR | CHAMBER | 2,005 | CASE OF SÜHEYLA AYDIN v. TURKEY | 3 | Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | Feyyaz Gölcüklü;Jean Claude Geus | 8. The applicant, a Turkish citizen of Kurdish origin, was born in 1966 and lives in Switzerland where she has been granted political asylum. She was the wife of Necati Aydın, whose body was found on 9 April 1994 in a location outside Diyarbakır, with his hands tied at the back. He had been shot in the head with a single bullet. 9. The facts of the case, particularly those events which occurred between 18 March 1994 and 9 April 1994, are disputed by the parties. 10. The facts as presented by the applicant are set out in Section B below (paragraphs 14-30). The Government’s submissions concerning the facts are summarised in Section C below (paragraphs 31-37). The documentary evidence submitted by the applicant and the Government is summarised in Section D (paragraphs 38-73). 11. The Commission, in order to establish the facts disputed by the parties, conducted an investigation with the assistance of the parties, pursuant to former Article 28 § 1 (a) of the Convention. It appointed three delegates (Mr Jean-Claude Geus, Mr Marek Nowicki and Mr Marc Vila Amigó) who took evidence in Strasbourg on 17 September 1999 and in Ankara from 22 September 1999 to 24 September 1999. They interviewed the applicant as well as the following 11 witnesses: Ms Yasemin Aydın, Mr Şemsettin Aydın, Mr Sezgin Tanrıkulu, Mr Arif Altınkalem, Mr Bekir Selçuk, Mr Rıdvan Yıldırım, Mr Sami Güngör, Mr Ramazan Sürücü, Mr Yusuf Ercan, Mr Ali Uslu and finally Mr Cemil Çelik. A summary of the oral evidence given by these witnesses is found in Section E below (paragraphs 74-129). 12. Three other witnesses, Mr Osman Yetkin, Mr Raif Kalkıcı and Mr Tahir Baboğlu, were also summoned but did not appear before the Commission’s delegates. 13. Following the questioning of the above mentioned witnesses, the Commission considered it important to hear two police officers who had accompanied Necati Aydın and Mehmet Ay to the Diyarbakır State Security Court (see paragraph 116 below). The Commission informed the parties on 27 September 1999 that the delegates wanted to interview the police officers in Strasbourg on 28 October 1999. The Government were requested to identify the two police officers and summon them for the hearing in Strasbourg. The Government asked the Commission to explain why a need was felt to hear the police officers in person as opposed to questions being put to them in writing, and further asked the Commission to reconsider its decision. Despite the Commission’s repeated explanations, the Government failed to identify the witnesses and informed the Commission on 26 October 1999 that they did not have time to identify the two police officers and therefore they would not be able to ensure their attendance at the proposed hearing. The Commission was therefore obliged to cancel the proposed hearing. 14. In 1994 the applicant was working as an anaesthetics nurse, and her husband, Necati Aydın, as an environmental technician. They were civil servants. Necati was also the president of the Health Workers’ Trade Union (Tüm Sağlık Sen). Previously, the applicant and her husband had been subjected to harassment and arrest by the security forces. Their activities on behalf of the trade union had drawn the unwelcome attention of the security forces and the police to them. 15. In March 1994 the applicant and her husband did not have a permanent residence as they had been subjected to several transfer orders and had been moving around Turkey to various places of work. The applicant was six months pregnant at the time. 16. On 18 March 1994 the applicant and her husband were at the house of Necati’s relative, Mehmet Hafif Ay, in Diyarbakır. At that time, a large number of relatives were also in the house. At approximately 8.30 p.m. police arrived at the house with Mr Mehmet Ay, whom they had arrested earlier at a coffee shop. The police officers entered the apartment. They asked for the identity cards of all those present, and questioned various members of the family. The police then took into detention all the family members present, including a five year old child. 17. The detainees were placed in vehicles. The applicant was placed in a car by herself and was accompanied by at least two police officers. In the vehicles the detainees were blindfolded and they were then brought to the rapid response force building (Çevik Kuvvet) for interrogation. The applicant was not feeling well due to her pregnancy. 18. When they arrived at the rapid response force building, the applicant was made to sit in a corridor waiting to be brought in for interrogation. As she sat in the corridor she could hear the screams of her husband as he was being tortured. 19. The applicant was taken in for interrogation at least three times. The first time, the applicant was questioned about where her husband had been during certain periods. The second time she was taken in, her husband was also present. Her blindfold was removed momentarily so that she could see her husband. She saw him naked and blindfolded in the middle of the room. His body was wet and he was crouched over, shivering. The applicant was made to listen while he was interrogated. During this time Necati gave a response to the police which contradicted an answer provided by the applicant. When this happened, Necati was removed from the room and the applicant was grabbed by the hair and slapped in the face. 20. On the third occasion the applicant was taken in for interrogation, the police ordered her to strip naked. Her husband was also in the room. The police threatened him that they would harm her if he did not answer their questions. The applicant was frightened and her condition deteriorated. She was removed from the room. Outside the room, the applicant was told by the police officers, “Do you know Yusuf Ekinci? His body was found in an empty lot. I do not think you want your husband to end up the same way”. On each occasion that she was removed from the room, she could hear the screams of her husband as he was being tortured. 21. The applicant was taken from the rapid response force building to the Diyarbakır police station. She was put in a cell with Ms Hüsniye Ay and the latter’s children, where they were kept for four nights. The applicant was released on 22 March 1994, without having been brought before a judge. During her time in detention, she had not been given the right of access to a lawyer, prosecutor or judge. 22. Ms Yasemin Aydın, a relative of the applicant’s husband who, as president of the Patriotic Women’s Association, was politically active on behalf of Kurdish women, was also detained and was tortured during her detention. This torture included hanging, beatings, electric shocks, insults and threats of rape. During her detention she was asked questions about the activities of Necati Aydın and Mehmet Ay. She was released on 29 April 1994, having been brought before Prosecutor Osman Yetkin. 23. On 4 April 1994 the applicant’s husband and his cousin Mehmet Ay were finally brought before the Diyarbakır State Security Court (hereinafter “the Diyarbakır Court”). At 12.45 a.m. the two were taken for a medical examination. At 9 a.m. the two men signed for their possessions. At approximately 2 p.m. Mr Sezgin Tanrıkulu, a lawyer who had come to the Diyarbakır Court that day, saw Necati Aydın being brought into the court building. After that, there were only a few persons who witnessed what happened to the two men. 24. The records from the proceedings show that the Prosecutor demanded that they remain in custody, but the duty judge ordered their release that day. The Prosecutor lodged an objection to Mehmet Ay’s release with the Third Chamber of the Diyarbakır Court, but the appeal was rejected on 5 April. 25. At the time of their appearance before the judge, no lawyer was allowed to be present. 26. Despite the order of release from the Diyarbakır Court, the two men never emerged from the front door of the court building where family members and friends of the two men were waiting. When Sezgin Tanrıkulu came out of the building at approximately 2 or 2.30 p.m., he informed Hafif Ay that he had seen the two men. Mr Şemsettin Aydın, Necati’s father, was also waiting. He had, in fact, been waiting for his son outside the court building for several days. The only times he was not outside the court building was when he had gone to the coffee house to pray, which would have taken him 15 minutes at some stage between 11.30 a.m. and 1.30 p.m. and again about 15 minutes between 4 and 4.30 p.m. According to Şemsettin, if Necati had been released during those 15-minute periods, he would have been told about this by other people who were waiting there. The only other exit which the men could have used to leave the court building was a door located in the basement of the Diyarbakır Court, adjacent to the registry of the court. That exit could only be used by police vehicles. Persons in the registry informed lawyers that they had seen Necati exit from that door. 27. The following day, 5 April 1994, the families of the two men applied to the Prosecutor in order to obtain information. The Prosecutor told them that Necati Aydın and Mehmet Ay had been released and that they had not been re-arrested. When Sezgin Tanrıkulu spoke with Mr Bekir Selçuk, the Chief Public Prosecutor at the Diyarbakır Court, the latter told Mr Tanrıkulu that Necati had probably gone to join the PKK (the Kurdistan Workers’ Party). He said similar things to another lawyer, Mr Arif Altınkalem, when he made enquiries. 28. On 8 April 1994 Yasemin Aydın was telephoned and asked to meet with Osman Yetkin, the Prosecutor who had released her. Apart from Mr Yetkin, the President of the Third Chamber of the Diyarbakır Court and another prosecutor and judge were also present at this meeting, held at the Diyarbakır Court. Mr Selçuk joined the meeting later. The discussion at this meeting concerned the question how Necati Aydın and Mehmet Ay could have gone missing from inside the court building. The judge at the meeting noted that, apart from the front entrance, there was only one other entrance which was on the ground floor at the back of the building, which was used only by the police to transport prisoners to and from the Diyarbakır Court. The judge wondered whether “the ones with the radio...” could have taken the two men away, but did not finish his sentence. The men also discussed the “dirty games” which were being played in Diyarbakır at the time. At the end of the meeting, Mr Yetkin exchanged telephone numbers with Yasemin Aydın. 29. On the evening of 9 April 1994 villagers working in a field in the Silvan district near the Pamuklu river, about 40 kilometres outside Diyarbakır, discovered three bodies. The bodies were in a shallow grave approximately 100 metres from the main Diyarbakır-Silvan road. The bodies had their hands tied behind their back and a bullet in the back of the head had killed each of them. They had been buried side by side at a depth of about one metre. The name Süheyla was engraved in a wedding ring which was found in the pocket of one of the dead men. The families identified the bodies of Necati Aydın and Mehmet Ay that evening. 30. The families retrieved the bodies the following day from the morgue at Diyarbakır State Hospital. Many people who wanted to visit the morgue were turned away. Three teachers, members of the teachers’ union, were taken into custody. While in custody, they were threatened and told that Necati Aydın and Mehmet Ay had been killed in a clash. 31. Having been arrested on 18 November 1993, the applicant was examined by a doctor on 22 November 1993. According to a medical report drawn up at the time of her release, there were no signs of ill-treatment or torture on her body. 32. On 4 April 1994 the Anti-terrorist Department in Diyarbakır requested that Necati Aydin and Mehmet Ay be examined by a doctor. As a result of this request, on 4 April 1994 at 12.45 a.m., the applicant’s husband and Mehmet Ay were examined by a doctor, who concluded that there were no signs of ill-treatment or torture on their bodies. 33. At 9 a.m. they were taken to the chief of the security forces, who drew up a record to the effect that their personal belongings had been returned to them. The applicant’s husband signed this document. Later that day, the applicant’s husband and Mehmet Ay were brought before a judge, who ordered their release. Necati Aydın and Mehmet Ay had then left the court building. 34. On 9 April 1994, the bodies of the applicant’s husband, Mehmet Ay, and an unidentified person were found buried at a distance of 40 kilometres from Diyarbakır. 35. The autopsies performed concluded that they had been summarily executed, as the bodies were found with the hands tied behind their backs. As rigor mortis had not yet completely set in, the autopsy report stated that Necati Aydın had been dead for about 24 hours. This meant that the killing must have taken place some four or five days after the release of the applicant’s husband. 36. An ex officio investigation was opened under file no. 1994/2233 in order to identify the PKK terrorists who were the perpetrators of the murders. The investigation progressed very slowly, as the terrorists who had executed the applicant’s husband were very mobile and often hid in neighbouring countries. They did not tend to return to the scene of the crime and witness statements were difficult to come by, since potential witnesses preferred to keep silent for fear of repercussions and intimidation. 37. Following the lodging of the application to the Commission, another ex officio investigation was opened in relation to the allegations of ill-treatment and torture during detention. However, on 6 October 1995, the Chief Public Prosecutor of Diyarbakır decided not to prosecute anyone as there was no evidence supporting the applicant’s allegations. 38. The following information appears from the documents submitted by the parties. 39. According to a report of the arrest and house search, drawn up on 18 March 1994, Necati Aydın, Süheyla Aydın, Mehmet Ay and nine other persons were arrested in a house in Diyarbakır that day at 10 p.m. 40. A single sentence in a document dated 22 March 1994 relating to nine of the detainees, including the applicant, states that the detainees bore no marks of ill-treatment. 41. Also on 22 March 1994, the applicant and two other detainees were released by police officers from the Diyarbakır Police upon the oral instructions of the Prosecutor at the Diyarbakır Court. 42. On 23 March 1994 Kerime Aydın, the sister of Necati Aydın, submitted a petition to the Public Prosecutor’s Office at the Diyarbakır Court in which she expressed her concerns about her brother and asked to be provided with information about him. 43. On 25 March 1994 the Prosecutor at the Diyarbakır Court informed Kerime Aydın that her brother was being detained at the anti-terrorist branch of the Diyarbakır Police. 44. On 28 March 1994 a statement was taken from Mehmet Ay while he was in police custody. He stated that both he and Necati Aydın had been members of the PKK. 45. A statement was taken from Necati Aydın on 30 March 1994. He rejected the allegation that he had been an active member of the PKK. He also rejected the allegation that he and a number of his friends had been trying to set up a private hospital, which would be funded by the PKK and where wounded PKK members would be treated. He admitted that he had been a PKK sympathiser and that he had been arrested in 1992, but the charges against him had later been dropped. 46. According to a medical report drawn up at the Diyarbakır State Hospital at 12.45 a.m. on 4 April 1994, neither Necati Aydın nor Mehmet Ay bore any marks of ill-treatment. 47. At 9 a.m. on 4 April 1994, the belongings of Necati Aydın and Mehmet Ay, which had been taken away from them following their arrest on 18 March 1994, were returned to them. 48. It appears from a letter signed by Ramazan Sürücü, the chief of the anti-terrorism branch of the Diyarbakır Police, that on 4 April 1994 Necati Aydın, Mehmet Ay and a certain Ramazan Keskin were referred to the Diyarbakır Court. It further appears from this letter that Ramazan Keskin had also been detained at the anti-terrorism branch. 49. On 4 April 1994 the Public Prosecutor at the Diyarbakır Court questioned Necati Aydın and Mehmet Ay. Necati Aydın repeated that he had not been a member of the PKK, whereas Mehmet Ay stated that he had wanted to join the PKK in the past but had not been admitted. 50. Finally, on 4 April 1994, Judge Raif Kalkıcı of the Diyarbakır Court questioned Mehmet Ay and Necati Aydın. Both Necati and Mehmet confirmed the statements they had made to the Prosecutor earlier the same day. The Judge then ordered their release. 51. On 5 April 1994 the Third Chamber of the Diyarbakır Court rejected the objection, which had been lodged by the Public Prosecutor at that court, against the decision ordering the release of Necati Aydın and Mehmet Ay. 52. On 9 April 1994 a report was drawn up by two gendarme officers, Ali Uslu and Cemil Çelik (see paragraphs 120-25 and 126-29 below), and signed by two gendarme privates. The report stated that a certain Mr Mehmet Korucu had come to their gendarmerie station and had informed them that he had found a body, buried in the Pamukçay area. The soldiers had visited the area at 1.30 p.m. and found the partially buried bodies of three men; their hands were tied at the back and each one had been shot in the head by a single bullet. There were no documents on the bodies to help establish their identities. However, the name “Süheyla” was engraved in one of two golden rings found in the pocket of the trousers of one of the bodies. The gendarmes had then informed the judicial authorities of their discovery. 53. On the same day Rıdvan Yıldırım, the Public Prosecutor of the Bismil district in whose jurisdiction the bodies had been found, visited the area together with Feyzi Kaymak, a doctor. The Prosecutor and the doctor drew up a report in which they recorded that each of the three men had been killed by a single gun shot to the head and that the bullets had exited the bodies. Rigor mortis had not yet set in at the time of the examination, and therefore it was estimated that the victims had been dead for about 24 hours. The doctor concluded on the spot that the cause of death was the destruction of the brain and that there was no need, therefore, for full autopsies to be carried out. After having been photographed in situ, the bodies were transferred to the morgue in Diyarbakır. 54. According to this report, drawn up by the Prosecutor and the doctor, the body which had been found with the rings, bore a number of ecchymoses. There was a mark on the left shoulder, measuring 3x3 cm, that had been caused by a blow; two ecchymosed areas on the scapular region on the back of the left shoulder, measuring 5x5 cm and 3x3 cm, had been caused by blows; an ecchymosed area on the right scapular region of the shoulder, measuring 4x4 cm, had been caused by a blow; and finally an ecchymosed area on the chondral rib, measuring 6x6 cm, was noted. 55. On 10 April 1994 the bodies of Necati Aydın and Mehmet Ay were identified by their respective brothers. The third body remained unidentified. The bodies were photographed once more. The Prosecutor at the Diyarbakır Court issued a burial licence for Necati Aydın. 56. On 18 April 1994 the Bismil Prosecutor questioned Mehmet Naili Aydın, the brother of Necati Aydın. Mr Aydın confirmed that his brother’s release had been ordered by the Diyarbakır Court on 4 April 1994, but his family had not heard anything from Necati until they had been contacted by hospital workers and were told that Necati’s body was in the morgue. 57. On 26 April 1994 the Bismil Prosecutor questioned Mehmet Nuri Ay, the brother of Mehmet Ay. Mr Ay similarly confirmed that the Diyarbakır Court had ordered the release of his brother and Necati Aydın. He stated that he did not know how they had been killed and that he did not suspect anyone in particular. Mr Ay further stated that the third body, which had been found next to his brother and Necati Aydın, was that of Ramazan Keskin, a university student in Diyarbakır. 58. Also on 26 April 1994 the Bismil Prosecutor asked the commander of the Bismil gendarmerie to investigate whether the killings had any political aspects. 59. On 30 May 1994 the Bismil Prosecutor decided that the killing of the three persons had political aspects and therefore his office lacked jurisdiction to continue the investigation. The Prosecutor then sent the investigation file to the Diyarbakır Court which had jurisdiction to investigate the killings. 60. On 3 May 1995 Bekir Selçuk, the Chief Public Prosecutor at the Diyarbakır Court, sent a reply to a letter which had apparently been sent to him by the Ministry of Justice’s International Law and Foreign Relations Directorate (hereinafter “the Directorate”) on 4 April 1995 and which concerned the application made to the Commission by the applicant. Mr Selçuk stated in this letter that his office was overseeing the investigation into the killings. Mr Selçuk was of the opinion that Mehmet Ay and Necati Aydın, both of whom had stopped working for the PKK, had been killed by members of the PKK with the aim of attributing their killings to the State and then making an application to the European Commission of Human Rights. The investigation into the killings was being conducted in the light of this information, but it had not yet been possible to apprehend the members of the PKK who had perpetrated the killings. Mr Selçuk finally stated that an indictment had been filed with the Diyarbakır Court on 30 November 1993 in which the applicant was charged with aiding and abetting a terrorist organisation. 61. On 6 October 1995 the Public Prosecutor’s Office in Diyarbakır decided not to prosecute six police officers for allegedly having ill-treated Süheyla Aydın during police custody in 1991, 1992 and in 1994. It was noted in this decision that there was no evidence suggesting that her allegations of ill-treatment, detailed in her statement which had been taken from her by a letter rogatory on 4 July 1995, were true. The medical reports drawn up at the time of her releases did not mention any marks of ill-treatment. 62. On 27 November 1997 Prosecutor Sami Güngör at the Diyarbakır Court asked the Diyarbakır Police and the Diyarbakır Gendarmerie to search for the perpetrators of the killings of Necati Aydın, Mehmet Ay and Ramazan Keskin. According to this Prosecutor, the killings had been perpetrated by a group of PKK members. 63. On 27 March 1998 a Prosecutor at the Diyarbakır Court sent a letter to the anti-terrorism department of the Diyarbakır Police, requesting that the two police officers, who had questioned Necati Aydın and Mehmet Ay while they were in police custody and had then accompanied them to the Diyarbakır Court on 4 April 1994, be identified. 64. In his reply of 15 April 1998, the Diyarbakır Police Headquarters informed the Prosecutor at the Diyarbakır Court that Necati Aydın, Mehmet Ay and Ramazan Keskin had been questioned while they were in police custody by police commissioner Taner Şentürk and by a police officer named Hüseyin Karaca. The three detainees had then been referred to the Diyarbakır Court by the Police Commissioner, Ertan Uzundağ, on behalf of Ramazan Sürücü. The letter further states that, as at that time it was not the practice to draw up release reports, the authorities were unable to determine the identities of the police officers who had actually accompanied the three men to the Diyarbakır Court. 65. On 12 May 1998 a statement was taken from Hüseyin Karaca. He said that on 2 April 1994 he had questioned Ramazan Keskin, the third person whose body had been recovered together with the bodies of Necati Aydın and Mehmet Ay. Mr Karaca stated that he had not questioned Necati Aydın or Mehmet Ay and that he had not accompanied them to the Diyarbakır Court. He assumed that they had been taken there by officers working at the registry of the interrogation department. 66. On 22 May 1998 the Prosecutor Güngör at the Diyarbakır Court decided that he lacked jurisdiction to investigate the killings as there was no evidence suggesting that the killings had been carried out by members of the PKK and hence it was a case of homicide as opposed to a political killing. The Prosecutor added that the decision of non-jurisdiction of 30 May 1994 (see paragraph 59 above) had been based on presumptions. The file was sent back to the Prosecutor’s Office in Bismil in order for the investigation to continue. 67. On 28 May 1998 the Prosecutor in the town of İdil contacted his colleague in the nearby town of Bismil and informed him that a number of killings in the area, the majority of which had taken place between 1993 and 1996, had possibly been carried out by the same person or persons. The similarities lay in the way these killings had been carried out and in the weapons used. He asked the Bismil Prosecutor to forward to him details of the killings carried out in the jurisdiction of Bismil so that he could verify whether they were connected in any way. 68. On 9 September 1998 the Bismil Prosecutor sent a reply to his colleague in İdil, stating that seven persons had been killed in his jurisdiction between 1993 and 1996; three on 9 April 1994, and the remaining four on 14 September 1996. The bullets recovered after the killing of the four persons in 1996 had already been forwarded to the forensic department of the gendarmerie. No bullets or bullet cases had been recovered in relation to the killing of the three persons in 1994. 69. On 5 May 1999 the Directorate sent a letter to the Prosecutor’s Office in Diyarbakır and asked whether any empty bullet cases, bullets or other similar evidence had been found at the site where the bodies were found and whether any forensic reports had been drawn up. 70. On 6 May 1999 the Prosecutor’s Office in Diyarbakır forwarded to the Prosecutor’s Office in the district of Bismil the Directorate’s letter of 5 May 1999. 71. On 7 May 1999 the Bismil Prosecutor replied that no bullets or bullets cases had been found in the area. 72. According to a number of documents drawn up by public prosecutors and soldiers between 1996 and 1999, each of which is one paragraph long and most of which are identical pro-forma documents, it had not been possible to find the perpetrators of the killings despite the investigations carried out and the visits made to the area where the bodies had been found. These documents contained no information indicating what specific steps had been taken. 73. On 23 June 1999 the Bismil Prosecutor informed the Directorate, in an apparent response to a request from the latter of 18 June 1999, that the investigation into the killings was still ongoing and that his office was being informed every three months about the investigation by the soldiers. No personal belongings, other than the clothes which the deceased had been wearing, had been found at the site where the bodies were discovered. 74. At the time of the events, the applicant was working as a nurse in Adana. Neither she nor her husband had ever been harassed by any authority until they became members of the trade union. After joining the union, they were repeatedly arrested, detained and questioned about their activities within the trade union. 75. She and her husband were both civil servants, and on a number of occasions they had been posted to different cities which made it difficult for them to live together. When they had challenged their repeated postings through the courts, they were told that their existence in Diyarbakır constituted a threat to peace and security, and that it was for this reason that they had been sent away from that city. They had both resigned their jobs and stayed in Diyarbakır. Necati had then found another job in Adana. Had they not been arrested, Süheyla and Necati would have left Diyarbakır for Adana after the evening meal on 18 March 1994. 76. However, that day she was taken into detention, together with her husband and a number of other persons, including a five year old girl. At the time of their arrest, they were in the house of Hafif Ay in Diyarbakır. They were taken to the rapid reaction force building in Diyarbakır and were blindfolded upon arrival. She knew the building well because she had been detained there on three occasions in the past. 77. During her detention, which lasted four days, she was questioned three times. She was asked why she kept coming back to Diyarbakır. A police officer told the applicant, “We have sent you away from Diyarbakır so many times and still cannot manage to get rid of you”. On one occasion she was held by her hair and slapped. During her time in detention, she often heard her husband Necati’s screams. On one occasion, her blindfold was removed and she was able to see her husband standing naked and wet. He was shivering. 78. Those questioning Necati repeatedly told him that they would harm Süheyla and strip her naked if he did not cooperate. She was also told by those detaining her to behave herself if she did not want her husband to end up like Yusuf Ekinci who had been killed in Ankara (see Ülkü Ekinci v. Turkey, no. 27602/95, 16 July 2002). The applicant, another female detainee and the latter’s children were then sent to the Police Headquarters in Diyarbakır where they were kept for four days. No statement was taken from the applicant while she was in detention. On the fourth day at midnight they were taken to the hospital for a medical examination (see paragraph 40 above) where a doctor, in the presence of police officers, asked the applicant if she had any marks of blows on her body. She replied that she did not. She was not physically examined by the doctor. She was then released at the hospital without having been brought before a prosecutor or judge. 79. On 4 April 1994 the applicant was informed by a lawyer that her husband had been brought before the judge at the Diyarbakır Court that day. She did not try to see her husband as she knew that it would be impossible to enter the building. In any event, her father-in-law Şemsettin and family members of Mehmet Ay were already waiting outside the court. 80. When Necati and Mehmet were not released that day, their families assumed that the judge had ordered their detention on remand and that they were transferred to the prison. When they contacted the prison that evening they were told, however, that the two men were not there. 81. The following day, i.e. on 5 April 1994, Şemsettin and the family lawyers contacted the Diyarbakır Court to ask about Necati and Mehmet. They were told that the two men had been released the previous day. The family members then began to fear that the two men would be killed. They continued their efforts to obtain information until the evening of 9 April 1994 when they were informed that the bodies of Necati and Mehmet had been found. 82. The witness was also in the house of Hafif Ay on the evening of 17 March 1994 and was also arrested together with Necati, Süheyla and the others. She was kept in a cell on her own and she was able to hear the screams of other detainees who were being tortured. The police officers began questioning her on the third day of her detention. She was beaten up, subjected to electrical shocks, hung from her arms and threatened with rape. 83. On 29 March 1994 she was brought before a doctor, together with approximately 20 other detainees, for a medical examination. The police officers who accompanied the detainees to the hospital threatened them and told them not to mention to the doctor any of the torture. Similarly, the doctor advised the detainees not to mention anything that might have been done to them if they wanted to avoid more. The detainees all said that they were fine. The witness was then brought before Osman Yetkin (see paragraph 12 above), a Prosecutor at the Diyarbakır Court, who ordered her release. 84. After Necati’s disappearance, when a number of family members were making enquiries into his fate, the witness was unable to join them as she was being treated by doctors because she had fallen seriously ill after the torture inflicted on her during her detention. 85. On 7 April 1994, i.e. subsequent to the disappearance of Necati Aydın and Mehmet Ay but prior to the discovery of their bodies, the Prosecutor Osman Yetkin asked Yasemin to come and see him in the court building. On 8 April 1994 she and Hamit Ay, the elder brother of Mehmet Ay, went to meet with Mr Yetkin. However, on their arrival, Hamit Ay was not allowed in to see the Prosecutor. In the room where she met Osman Yetkin there were also another prosecutor as well as two judges present, one of whom was the President of the Third Chamber of the Diyarbakır Court. Bekir Selçuk, the Chief Public Prosecutor of the Diyarbakır Court, joined the meeting at a later stage. A conversation ensued during which they all discussed what might have happened to Necati Aydın and Mehmet Ay. At one stage one of the judges said “I wonder if it was those with the walkie-talkies?”. Some of those present in the room commented that some “dirty games” were being played in Diyarbakır which they were unable to solve. They also discussed the killing of Vedat Aydın, another member of Necati’s family, who had been killed in similar circumstances (see Şükran Aydın v. Turkey, no. 46231/99). They then promised Yasemin that they would continue their investigation to find the two men. 86. Three days after the bodies were found Yasemin was asked to meet with the Mr Yetkin and the Chief Public Prosecutor once again. During this meeting she was asked how the family was coping with their loss. They then apologised for having failed to do more to find the men alive. 87. The witness is the father of Necati Aydın. His son and a number of others were arrested in March 1994 and detained. All those detained, with the exception of his son and Mehmet Ay, were subsequently released. After the arrest of his son, the witness began waiting for him outside the Diyarbakır Court building. He would sit under the trees in the court’s garden, approximately 20 metres across from the entrance to the building. He would start waiting there as of 8.30 a.m. every day and would only be absent from the vicinity of the court during prayer times at midday and in the afternoon. Had his son been released during such an absence, he would have been informed by other persons who were waiting there for their relatives and whom the witness had befriended. On a number of occasions, the witness also went to the local hospital where, he was told, detainees would be brought for a check-up prior to their release. He unsuccessfully tried to obtain information about his son at the hospital. 88. On 4 April 1994 the applicant learned that his son’s release had been ordered by the court. However, his son did not emerge from the court building. The witness then went back to his village and did not return to Diyarbakır until he was informed that his son’s body had been taken to the morgue at the hospital. 89. During the time he spent waiting outside the court building, he had not seen any detainees being released; detainees whose release had been ordered by the court would be taken back to the detention places and be released after midnight. He never expected that his son would be released from the court but he continued to wait in the hope that he would get some news about him. 90. According to the witness, his son was killed because of his leftist views and also because of his involvement in trade union activities. A number of his son’s friends and in particular a relative, Vedat Aydın, had also been murdered in similar circumstances. 91. The witness is an advocate practising in Diyarbakır. He has appeared before the Diyarbakır Court on many occasions to represent clients and knows the court’s procedure and the court building well. 92. At the time of the events giving rise to the present application, the court building was located in a courtyard which was surrounded by a wall. There were two gates opening into the courtyard. One of these gates was used by personnel working at the court and also by officials when transporting defendants who were detained on remand and suspects who were detained in police custody. The other gate was used by lawyers and the general public. The court building had three doors, two of which were for official use and the third door was used by lawyers and the general public. Lawyers were not allowed to speak with their clients who were brought to the court from police custody and the detainees did not have access to a lawyer. 93. A person taken to the court from police custody could be released by a prosecutor or judge. In that event, the suspect would be escorted by police officers to the door of the building, the one used by the general public, and released there. In 1994 it was not the practice of the court to draw up a release document; such a practice was not introduced until 1995. Personal belongings such as belts, money, watches, rings, etc., were returned to the detainees before they were brought before the judge at the court building. 94. On 4 April 1994 the witness went to the Diyarbakır Court building for unrelated business. After completing that business, and as he was about to leave around 2 or 2.30 p.m., he saw Necati Aydın and Mehmet Ay being brought into the court by two or three policemen. He and Necati saw each other and exchanged looks in greeting. When the witness left the building he saw Hafif Ay, the elder brother of Mehmet Ay, who was waiting outside the gate, and he told him that he had just seen his brother and Necati being taken into the court building. 95. Family members waiting for detainees were a familiar sight outside the Diyarbakır Court building. Family members would start waiting there for the release of their relatives as soon as they had been detained, because once a person was detained it was not possible to know when he or she would be released; the maximum period of detention before a suspect had to be brought before a judge was 30 days at that time. 96. In the evening of 4 April 1994, Hafif Ay telephoned the witness and told him that neither his brother nor Necati Aydın had emerged from the court building. Mr Ay asked the witness if he had any information as to whether the two detainees had been released or been taken back to the police station. The following morning the witness spoke to the Chief Public Prosecutor Selçuk. Mr Selçuk confirmed that the judge had ordered the release of the two detainees. When informed that the two detainees had never made it to the court’s door, the Prosecutor told the witness that they had perhaps joined the PKK. 97. The Registry office of the Third Chamber of the Diyarbakır Court was located in the basement of the court building, next to the exit door used by police officers to bring detainees in and out. At a later date, officials working at the registry told the witness that Necati Aydın and Mehmet Ay had been led away through that door. The witness did not convey this information to anyone else because he feared for the lives of the sources of this information. 98. This witness is also an advocate practising in Diyarbakır. He was acting for Necati Aydın at the time of the events giving rise to the present application. When his client was taken into detention in March 1994, the witness was not allowed to see him. This was because the legislation in force at the time prevented detainees, who were arrested for an offence falling within the jurisdiction of State Security Courts, to have access to their lawyers. The witness would also not be informed as to when Necati would be brought before a judge, although he knew that this would happen within 30 days, the maximum period of detention at the time. 99. On 4 April 1994 the witness was in the Diyarbakır Court building to represent a number of other clients at their trials. He did not come across Necati Aydın in the building but was told at a later stage by a court official that Necati had been there on that day. 100. The witness was informed on 5 April 1994 that Necati had been brought before a judge who had ordered his release but he had not been seen leaving the building. The witness then went to speak to Chief Public Prosecutor Selçuk. Mr Selçuk told him that Necati had been released and that he had probably joined the PKK. 101. The witness was the Chief Public Prosecutor of the Diyarbakır Court at the time of the events. He remembered that Necati Aydın was being investigated for membership of the PKK. 102. It was not the practice at the time of the events to draw up release documents. Sometimes a detainee, whose release was ordered by a prosecutor or judge, was escorted by police officers to a safe place and released from there. Otherwise a detainee was simply released outside the court building. In any event, detainees were not allowed to wander around freely inside the court building. 103. It would have been possible for him, as a Public Prosecutor, to find out the identities of the police officers who had accompanied Necati Aydın to the court building on 4 April 1994. However, he could not remember whether or not he had done this and whether he had subsequently questioned these police officers. He thought that he might have done so. In any event, he would not have recorded the identities of these police officers or what they had said to him in a document, in order not to jeopardise the police officers’ safety. Furthermore, the account of the police officers who had escorted Necati Aydın to the court building would not have been important to the investigation. 104. The opinions expressed in the document which he had drawn up on 3 May 1995 (see paragraph 60 above) had been based on the investigations. They were not based on subjective opinion. The witness believed that Necati Aydın and Mehmet Ay had been PKK members. Necati was probably killed by PKK members because he had left the organisation. Perhaps he was killed because he had the same surname as Vedat Aydın, who had also been killed in similar circumstances. 105. Neither the fact that the release of Necati Aydın and his wife had been ordered by the judge for lack of evidence, nor the fact that neither Necati nor Süheyla had ever been convicted of an offence involving the PKK, had a bearing on the witness’ opinion that Necati and his wife were PKK members. The acquittal of Süheyla Aydın on charges of aiding and abetting PKK members was the personal opinion of the trial court judge. That acquittal did not mean that she was not involved in PKK activities. 106. The witness denied having been approached by family members of the deceased men (see paragraphs 85-86 above) and he did not remember whether he had met with advocates Sezgin Tanrıkulu and Arif Altınkalem and discussed the disappearance of Necati Aydın (see paragraphs 96 and 100 above). 107. His office would sometimes receive intelligence indicating that certain civil servants had been in contact with members of the PKK. In such circumstances, and when he was unable to obtain any evidence to indict such civil servants, he would ensure their transfer to other cities. 108. The witness still held the opinion that Necati Aydın had been killed by members of the PKK so that a complaint could be lodged against Turkey to the European Court of Human Rights (see paragraph 60 above). 109. The witness was the Public Prosecutor of the town of Bismil at the time of the events. The bodies were found in an area under his jurisdiction and he participated in the examination of the bodies on 9 April 1994 (see paragraph 53 above). 110. He did not deem it necessary to carry out a full autopsy in order to establish the circumstances leading up to the killings; the cause of death was established and that was sufficient. The way the killings had been carried out – in particular, the single gun shot to the head and the bodies being dumped at a roadside – led the witness to form the opinion that the perpetrators of the killings were members of the PKK. 111. Prosecutors would investigate a killing regardless of whether or not there had been an official request by a relative of the deceased person. During his time in Bismil there had been a significant number of killings in the area and each of these killings had been investigated by the authorities. 112. The witness is a Public Prosecutor and was appointed to the Diyarbakır Court in October 1996. From that date onwards he carried out the investigation into the killing of the applicant’s husband and the other two persons. He inherited approximately one thousand similar cases from his predecessor. 113. In a document which he signed on 20 November 1997 (see paragraph 62 above), the witness recorded that Necati Aydın had been killed by members of the PKK. He explained that, in an investigation into a killing which had taken place in that area at that time, the starting point would be that the perpetrators were members of the PKK. Other possibilities would also be investigated if any evidence came to light which suggested otherwise. On 22 May 1998 the witness decided that there was no evidence suggesting that the killings had been carried out by members of the PKK, and he sent the investigation file to the local prosecutor (see paragraph 66 above). 114. The witness was the chief of the anti-terrorist branch of the Diyarbakır Police Headquarters where the applicant, Necati Aydın, Mehmet Ay, Ramazan Keskin and the others had been detained at the time of the events (see paragraph 48 above). 115. When a person was detained, his or her personal belongings would be taken away from that person and he or she would be asked to sign a document to that effect. When the detainee is about to be brought before a judge, the belongings would be returned and the person would be asked to sign the same document. This was what had happened in the case of Necati Aydın (see paragraph 47 above). 116. Two or three police officers would have accompanied Necati Aydın and Mehmet Ay to the Diyarbakır Court on 4 April 1994. These police officers would not be the same as those who had questioned the detainees while in custody. 117. The witness had never been questioned by the authorities investigating the disappearance and the subsequent killing of Necati Aydın. 118. The witness is a police officer and was responsible for the detainees at the Diyarbakır Police Headquarters at the time of the events. He signed the document showing that personal belongings of Necati Aydın were taken away and had then been returned to him (see paragraph 47 above). 119. He did not remember who had accompanied Necati Aydın and Mehmet Ay to the Diyarbakır Court on 4 April 1994 but it would be possible, by examining the documents at the place of detention, to determine the identities of these police officers. 120. The witness is a gendarme officer and was the deputy commander of the Kağıtlı Gendarmerie Station at the time of the events. 121. On the day in question a villager came to the station and explained that he had found three bodies in the fields. He and his superior, together with a number of soldiers under their command, went to the scene, which was situated approximately five kilometres away from the station and 100 metres from the main road. They checked the pulses of the three men and established that they were dead. 122. When the witness reached the area where the bodies were found, he formed the opinion that it was the PKK who had killed the three men, possibly because the PKK members had suspected that the three men were working for the State authorities. 123. It would not have been possible to reach the spot where the bodies were buried by car; only a tractor could have reached it. However, there were no tyre marks or foot prints near the scene. Similarly, there were no blood stains in the vicinity. The witness did not have any idea whether the three men had been killed on the spot where their bodies were found. If the men had been shot there, the shooting would not have been heard from the station because it was too far away. 124. The only road to reach the site was the one that ran between the town of Silvan and the city of Diyarbakır. This road was under constant surveillance by soldiers from his station. All vehicles and persons travelling on this road were searched. 125. His superior searched the bodies for any identification documents but, other than two wedding rings, he did not find anything to identify the deceased men. They also asked for support teams, approximately 4050 soldiers, to search the area for any evidence. None was found. They then informed the local prosecutor and handed the investigation over to him. His station continued to inform the investigating prosecutor every three months about any developments. He could not remember whether any inhabitants of villages in the vicinity had been questioned to establish whether they had seen or heard anything. If there had been any valuable information, it would have been mentioned. 126. The witness is a gendarme officer and was commander of the Kağıtlı Gendarmerie Station at the time of the events. The witness confirmed the sequence of events as described by his deputy Ali Uslu above. 127. The witness was asked by the Bismil Public Prosecutor to establish whether the killings had political connotations (see paragraph 58 above). He was not informed that the deceased men had disappeared after a judge had ordered their release. In the course of his investigation in the weeks and months after the discovery of the bodies, the witness visited the scene where the bodies had been found and also spoke to the local people who might have been able to provide crucial information. The names of those he questioned were recorded in his three-monthly reports. He continued this investigation until he left his post later in 1994, but the investigation was continued by his successor. 128. The ropes used to tie the hands of the deceased men were cut from the bodies by the witness and the soldiers under his command and left at the scene. As, in the opinion of the witness, the ropes had no evidential value, he did not deem it crucial to take them and examine them. Similarly, there was no need to record in his report that he had asked for an additional 4050 soldiers to help search the site. 129. A car leaving Diyarbakır and going in the direction of the place where the bodies were found would have gone through at least two check points; one was the check point just outside Diyarbakır and manned by police officers from the Diyarbakır Police and the second was outside the Kağıtlı gendarme station, manned by the soldiers under his command. As there were not very many cars passing along the road outside the station, each car and its passengers were searched thoroughly. Even police cars or ambulances were checked. 130. A description of the relevant domestic law may be found in Akkoç v. Turkey (nos. 22947/93 and 22948/93, §§ 42-58, ECHR 2000X). | 1 |
dev | 001-105557 | ENG | POL | CHAMBER | 2,011 | CASE OF WIZERKANIUK v. POLAND | 3 | Violation of Art. 10;Pecuniary and non-pecuniary damage - award | David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | 6. The applicant, Mr Jerzy Wizerkaniuk, is a Polish national who was born in 1952 and lives in Kościan. At the material time he was a chief editor and a co-owner of the local newspaper “Gazeta Kościańska”, published in Kościan. 7. On 24 February 2003 two journalists working for the applicant’s newspaper interviewed a local M.P., Mr T. M. The interview, arranged during a chance meeting between one of the journalists and the M.P. several days earlier, at a session of the Kościan Municipal Council, took place in the M.P.’s office in Kościan and lasted about two hours. All questions and answers were tape-recorded. It related to the M.P.’s public and business activities. After the meeting the M.P. requested that the text of the interview be submitted for his authorisation (autoryzacja) before its publication, as provided for by Section 14 of the 1984 Press Act (Prawo Prasowe) (see paragraph 29 below). 8. The verbatim transcript of the interview, subsequently prepared by the two journalists, ran to forty standard pages. The applicant requested P.S., the editing journalist of the newspaper, to prepare an edited version of the interview, fit for the publication purposes. That version ran to three standard pages. The latter version was subsequently presented to the interviewee, approximately a month after the conversation. He read it and informed an employee of his office, Mr K. P., that he would not give his consent to the publication of the text. He was of the view that the text did not correspond to the conversation he had had with the two journalists and that many important statements he had made were not included. He asked Mr K.P. to inform the applicant of his refusal. Shortly afterwards, the applicant called the M.P. who reiterated his refusal. 9. In an undated letter to the applicant, served on him on 5 May 2003, the M.P. stated: “It is true that in February I talked to two representatives of “Gazeta Kościańska”. During that conversation, which was in any event very informal, I replied to a number of questions. However, the text submitted for my authorisation only after a month, failed to include many of my important statements and to reflect the character and contents of my statements, [a state of affairs] which I cannot accept.” 10. On 29 April 2003 the newspaper published a short text asking the readers whether they would be interested in having an interview with Mr T.M., the local M.P., published. 11. On 7 May 2003 parts of the verbatim records of the interview, edited by P.S. and accompanied by photos made when the interview was conducted, were published by “Gazeta Kościańska”. The text carried a lead informing the reader that the M.P. had refused to grant his authorisation for the publication of the interview and that the newspaper was publishing parts of the interview as recorded on the tape, including in its original grammatical form. 12. On 19 May 2003 the M.P. informed the Kościan District Prosecutor that the applicant had committed a criminal offence by publishing parts of the interview without his authorisation and against his will. 13. On the same day criminal proceedings were instituted against the applicant on a charge of publishing an interview with the M.P. in spite of the latter’s refusal to authorise its publication. During the investigation the M.P. submitted that he had talked to the two journalists from the applicant’s newspaper. They had had a casual conversation rather than a formal interview. A month later he had been given the text to be published which, in his view, failed to reflect many of his important assertions. Moreover, he was of the view that the text failed to convey both the character and the substance of his statements. 14. By a judgment of 30 April 2004 the Poznań District Court found the applicant guilty as charged. The court established the facts of the case as summarised above (see paragraphs 7-11 above). It further found that the applicant had published the interview despite the M.P.’s refusal to authorise its publication. This in itself amounted to a criminal offence punishable under section 14 read together with section 49 of the 1984 Press Act (see paragraph 29 below). The court observed that it was possible for the interviewed person to renounce his or her right to grant authorisation for the text to be published, but such a declaration had to be unequivocal. 15. The court noted the submission made by P.S., who was heard as a witness. According to P.S., the newspaper had not published the three-page summary which had initially been submitted for the M.P.’s approval. It had published parts of the interview quoted verbatim. The court found his statement credible. The court further noted that M.P.’s photographs taken during the interview had also been published together with the interview. The applicant had failed to indicate which photographs he intended to publish and to show them to M.P. before the publication. 16. The court further observed that the applicant had failed to comply with his obligation, under the Press Act, to obtain the authorisation of the interviewed person. It was of the view that the fact that the interview had been published without the required authorisation breached the interviewee’s personal rights. The applicant had acted with intent to break the law, but he had been motivated by his wish to fulfil his journalistic duties by making the interview available to the public. Having regard to the latter factor, the court concluded that the offence concerned could not be regarded as serious. Consequently, and having regard also to the fact that it was not open to any doubt that the applicant was a law-abiding citizen and that his conduct had always been irreproachable, the court conditionally discontinued the proceedings, obliged the applicant to pay 1,000 zlotys (PLN) to a charity and ordered him to bear the costs of the proceedings. 17. By a judgment of the Poznań Regional Court of 6 October 2004, served on the applicant on 15 November 2004, the first-instance judgment was upheld. The court noted, inter alia, that the photographs taken during the interview constituted its inherent part. The applicant, by publishing them without the interviewee’s consent, had breached his personal rights within the meaning of Article 23 of the Civil Code. 18. The applicant subsequently lodged a constitutional complaint with the Constitutional Court, challenging the compatibility with the Constitution of section 14 in conjunction with section 49 of the Press Act 1984, in so far as they provided for a fine or for restriction of liberty to be imposed on a journalist or publisher for failing to ask an interviewee for his or her authorisation. He relied on Article 54, guaranteeing the right to freedom of expression, and Article 31 of the Constitution, providing for the principle of proportionality in respect of restrictions on constitutional rights. 19. In the ensuing constitutional proceedings the Constitutional Court sought the opinions of the Ombudsman (Rzecznik Praw Obywatelskich), the Prosecutor General (Prokurator Generalny) and the Speaker of the Parliament (Marszałek Sejmu). In their opinions submitted to that court they concluded that section 49, read together with section 14 of the Press Act, was incompatible with the constitutional guarantees of freedom of expression. They were of the view, in particular, that the restriction on the exercise of that right by imposition of a criminal penalty was incompatible with Article 31 of the Constitution, which enshrined the principle of proportionality in respect of restrictions imposed on the exercise of civil rights and freedoms (see paragraph 27 below). They further referred to the existing civil law instruments available for the purposes of effective protection of personal rights (see paragraphs 30-32 below). 20. The Constitutional Court gave a judgment on the merits of his constitutional complaint on 29 September 2008. It held that the contested provisions of the Press Act were compatible with Article 54 of the Constitution read together with its Article 31. 21. The court noted that it was proposed in a public debate to do away with the obligation to seek and obtain the authorisation provided for by the Press Act. However, the opinions pointing to the potential danger of such a legislative measure could not be overlooked. The Constitutional Court was of the view that abrogating the authorisation requirement would, on the one hand, expose persons interviewed by the press to the risk of having their personal rights breached by having their words distorted and, on the other, be dangerous for the exercise of the freedom of expression. The essence of the authorisation was not only to ensure that statements made by interviewees were rendered literally, but also to protect the integrality of such statements. This, in turn, ensured that the intentions of the speaker were faithfully conveyed. Therefore, the applicant’s argument that the authorisation requirement gave the interviewee an opportunity to block the publication of a statement indefinitely was incorrect. 22. The judgment further read: “Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. It is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. The press has a duty to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. This duty is closely intertwined with the right of the public to receive information. (...) Statements made public by the media could, as they have a great power of persuasion, lead to the infringement of the personal rights of the individuals concerned. In certain cases the post factum remedies available under law are insufficient to provide effective redress for such infringements, and in some cases the damage could indeed be irreparable. However, a publicly made statement not only could be an instrument of an infringement, but could also be unlawfully distorted. This was why the legislature decided to grant additional protection to statements made in the context of interviews by creating the authorisation requirement. Assuming that this requirement amounted to a restriction on freedom of expression as it obliged journalists to obtain authorisation from the author of literally quoted statements, its necessity in a democratic society has to be examined. [The] freedom of expression is not ius infinitum and could therefore be limited. However, it is necessary that restrictions on its exercise are compatible with the principle of proportionality set out in Article 31 of the Constitution. This provision allows for restrictions imposed on individual rights only when they have statutory legal basis and are necessary in a democratic state in the interests of national security or public safety, for the protection of environment, health or morals, for the protection of rights of others. These restrictions cannot not impair the essence of rights and freedoms. (...) Article 47 of the Constitution provides for everyone’s right to the legal protection of one’s private and family life, of one’s honour and good reputation, and for the right to decide about one’s personal life. No restrictions can be imposed on the exercise of these rights (...). On the contrary, the freedom of expression can be restricted. The obligation to obtain the interviewee’s consent amounted to a restriction. However, such restriction cannot be seen as impairing the essence of the freedom of expression, because it concerns only statements quoted verbatim in press publications. It does not restrict or limit journalists’ right to inform the public of the content of such a statement by summarising it. When a journalist chooses to summarise or otherwise convey the content of a statement made by the interviewee, he or she is not obliged to seek the interviewee’s authorisation or to inform them of the intended publication. Nor, therefore, does it restrict the right of the public to obtain information. [...] that requirement is also necessary in a democratic society to protect the personal rights of journalists’ sources. Hence, not only it is not in breach of any constitutional right but, on the contrary, it had to be regarded as a guarantee of the effective exercise of constitutional rights. Furthermore, this requirement is justified not only by the necessity to protect individual rights [...] but it derives its legal foundation from other elements which, taken together, formed the constitutional notion of the public interest. As the authorisation serves to establish with full clarity the authorship of a given statement made public, it contributes to the clarity and transparency of public debate. It makes it possible for the reader to be certain that the speaker identifies himself with the statement’s content and would not try to change it or to distance himself from it. It is therefore in the reader’s interest to maintain it. Without this requirement, readers could not be sure whether statements purportedly made in the context of interviews are really authentic. In the Constitutional Court’s opinion the authorisation requirement was therefore a means of guaranteeing the reader’s right to obtain reliable, credible, truthful, honest, clear, not misleading and responsible information. This right has not been expressly guaranteed by the Constitution, but it was anchored in it. [...]” 23. In so far as the criminal sanction for failure to obtain the authorisation was concerned, the Constitutional Court observed that it aimed at ensuring that the citizen’s right to reliable information was respected. Authorisation was the simplest way to ensure the veracity of the message, whereas statements published without authorisation could be distorted, which was clearly undesirable. 24. The Constitutional Court referred to the legal provisions penalising defamation. It was of the view that while the offence of defamation was directed against an individual’s reputation, in the same way the offence penalised by section 14 read together with section 49 of the Press Act was aimed at obtaining compliance with the obligation to quote and report statements made by interviewees in a fair and accurate manner, in order to protect their personal rights. The penal sanction provided for by these provisions thus respected the principle of proportionality. 25. A dissenting opinion of Justice Rzepliński was attached to that judgment. He had regard, firstly, to considerations which could be said to have constituted the ratio legis of the Press Act when it had been adopted in 1984. He noted that the 1952 Constitution, in force at that time, guaranteed neither the right to freedom of expression nor the right to respect for family and private life in any form comparable to the current constitutional regulations. At that time all media had been subject to preventive censorship and it was ultimately the State which decided what could be published or broadcast. The opinion further read, inter alia: “The provisions of the Press Act regarding the authorisation requirement were only, at that time, an additional safeguard against the press publishing any information given to journalists by the communist party or State agents if such information was capable of jeopardising the interests of then political power. [Given that constitutional background, it is only natural that] the Press Act did not provide for any distinction in respect of the authorisation requirement between the persons exercising public functions and all other persons. Thus, that Act provided for identical protection, by way of the criminal law, of persons holding public offices who were, for that reason, obliged to provide information about their acts to journalists, playing the role of “watchdogs” of the public powers on behalf of public opinion, and all other, “private”, persons. (...) Moreover, the Press Act failed to indicate any time-limit within which a journalist could reasonably expect that authorisation would be granted or refused. (...) While it is true that during the last years of the ancien régime, in 1998/89, State censorship became less strict, the origin of the examined provisions of the Press Act and the place they had in the legal order at that time cannot be ignored.” 26. Justice Rzepliński further disagreed with the Constitutional Court in so far as it had held that the restrictions imposed by the impugned provisions satisfied the test of proportionality, enshrined in Article 31 of the Constitution. In this context, he stated that the freedom of speech standards developed by the European Court of Human Rights in its judgments could not be overlooked. The dissenting opinion further read: “The impugned provisions [seen in this light] amounted to an unnecessary and excessive interference with the freedom of the press in the interest of the personal rights of persons providing information to the press. These provisions were not necessary for that purpose at the time they were adopted and are still less necessary in a democratic State governed by the rule of law. Authorisation to publish information quoted verbatim is unknown to the legal systems of other States of the European Union. (...) The authorisation requirement amounts to censorship which makes it impossible for the reader to know the original statement made by the interviewee. It may dissuade journalist who is wishing to obtain an interview for their newspaper with a politician important in a national or local context from asking uncomfortable, searching questions. (...) In a democratic state a politician, a public person, has no right to manipulate his or her statements post factum. If he or she resorts to such manipulation, the public opinion is entitled to know this because it is an important element relevant for public image of a politician if he or she tampers with his or her public statements. The requirement of authorisation makes it impossible for the public to acquire such knowledge. Citizens expect politicians to have the courage to make wise decisions in difficult situations. If a politician is unsure of the choice of words to be used when speaking in a public situation it might be a signal to the public that he or she is unable to cope with stressful circumstances. It is something that public opinion is entitled to know. (...) I do not share the view expressed by the Constitutional Court in the present case that a journalist, when refused authorisation to publish a verbatim quotation, can resort to paraphrasing the statements concerned; that the Press Act therefore does not in any way restrict the journalist’s right to convey the interviewee’s thoughts and the right to inform the public thereof (...). I am of the view that public opinion always has a right to be informed of the interviewee’s statements quoted verbatim always where a journalist deems it necessary to convey information which is interesting for readers. I am also of the opinion that that descriptive technique is manipulative and makes it possible for both a journalist and an interviewee to shirk responsibility for the words they use. Furthermore, the fact that the impugned provisions of the Press Act make it possible to use such “techniques” and “evasions” demonstrates that they do not meet the standards required of a fair-minded legislator. (...) There is no right in the Constitution or in a democratic society to “true” or “right” information. A journalist is not obliged to provide such information; if only because he or she does not exercise public powers. His or her professional duty is to seek and disseminate information, views and judgments. Only persons receiving information, readers, listeners, TV watchers or internet users are to decide whether information is true or not. (...) The authorisation requirement is not, as such, wrong. A journalist, when talking to experts, may have, at the editing stage, some doubts whether he or she has properly understood what they said, even where the interview was recorded. In practice, in such situations journalists themselves request the persons interviewed to read the text and to correct or supplement it. A journalist is well aware that errors he committed in gathering specialist information could jeopardise his position on the market. What then is a sword of a criminal sanction needed for? (...) The mere fact that section 49 of the Press Act has practically never been applied recently by the courts (...) does not mean that it does not play in the Polish legal system a negative role, with a chilling effect on public debate. No one challenges the constitutionality of the provisions of civil law applied by the courts in the context of disagreements arising out of press publications.” 27. Article 54 of the Constitution provides: “1. Freedom to express opinions, and to acquire and disseminate information shall be ensured to everyone. 2. Preventive censorship of means of social communication and licensing of the press shall be prohibited.” Article 31 of the Constitution reads: “Freedom of the person shall receive legal protection. Everyone shall respect the freedoms and rights of others. No one shall be compelled to do that which is not required by law. Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.” 28. Article 61 of the Constitution provides that a citizen shall have the right to obtain information on the activities of organs of public authority as well as those of persons discharging public functions. 29. Section 14 of the Press Act 1984 reads: “1. Publication or dissemination in another manner of information that has been preserved by way of phonic or visual recording requires the consent of the persons providing the information. 2. It is obligatory for a journalist to submit the text of a statement cited verbatim, if it has not been published previously, for authorisation by the person providing the information.” Section 49 of the Press Act provides: “Anybody who infringes the provisions of Articles 3, 11 paragraph 2, Articles 14, 15 paragraph 2 and Article 27 – shall be subject to a fine or the penalty of limitation of liberty.” Under section 31 of that Act an editor-in-chief of a newspaper is obliged to publish a disclaimer to rectify false information, or a matteroffact reply to an article, if the requesting person considers that that article has breached his or her personal rights. Various provisions of the Press Act adopted in 1984 were subsequently amended by Parliament (Sejm) on twelve occasions. Neither section 14 nor 49 have been amended. 30. Article 23 of the Civil Code contains a non-exhaustive list of the rights known as “personal rights” (dobra osobiste). This provision states: “The personal rights of an individual, such as, in particular, health, liberty, reputation (cześć), freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements shall be protected by the civil law regardless of the protection laid down in other legal provisions.” 31. Article 24 of the Civil Code provides for ways of redressing infringements of personal rights. According to that provision, a person facing the danger of an infringement may demand that the prospective perpetrator refrain from the wrongful activity, unless it is not unlawful. Where an infringement has taken place, the person affected may, inter alia, request that the wrongdoer make a relevant statement in an appropriate form, or claim just satisfaction from him/her. If an infringement of a personal right causes financial loss, the person concerned may seek damages. 32. Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads: “The court may grant an adequate sum as pecuniary compensation for non-material damage (krzywda) suffered to anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...” 33. Under Article 66 §§ 1 and 2 of the Criminal Code of 1997, criminal proceedings may be conditionally discontinued if the seriousness of the offence, punishable by a prison sentence of less than three years, is not significant, the circumstances in which it was committed have been established beyond reasonable doubt, the perpetrator does not have a criminal record and his personal circumstances and qualities suggest that he will abide by the law during the probation period. 34. Under Article 68 §§ 2 and 3 of the Code, when deciding to discontinue the proceedings for the period of probation, lasting from one to two years from the date on which the judgment becomes final, the court can impose certain obligations on the accused: to pay appropriate compensation to the victim of the offence, to apologise to him/her, or to carry out certain work in the public interest. 35. Under Article 67 § 1 of the Code, the court can fix a probation period of between one and two years, running from the date on which the judgment became final. Criminal proceedings may be resumed if during the probation period the offender disregards the obligations imposed by the court, acts in flagrant breach of public order, or, in particular, commits a new criminal offence. | 1 |
dev | 001-57794 | ENG | FRA | CHAMBER | 1,992 | CASE OF SAINTE-MARIE v. FRANCE | 3 | Preliminary objection rejected (non-exhaustion);No violation of Art. 6-1 | R. Pekkanen | 7. Mr Jean-Pierre Sainte-Marie, a French national born in 1963, resides at Lantabat, in the Pyrénées-Atlantiques department; he is a farmer. 8. On 30 January 1985 police officers (gendarmes) arrested him and seized at his home various articles and documents, in particular arms and ammunition. They were acting in connection with an inquiry into a bomb attack carried out in the night of 19-20 January against the Mauléon-Licharre police station (gendarmerie), responsibility for which was subsequently claimed by Iparretarrak, a clandestine Basque separatist movement. 9. The following day a Bayonne investigating judge remanded the applicant in custody after having charged him under the following two heads: first, unauthorised possession of a category I weapon and category I ammunition, transport without a lawful reason of such a weapon and ammunition and of a category VI weapon, possession without a lawful reason of incendiary devices and criminal conspiracy; second, using explosives to cause criminal damage to another person’s immoveable property, in connection with an earlier attack against another police station - then under construction -, that of Lecumberry, in the night of 24 to 25 November 1984. 10. The two sets of proceedings were conducted in parallel both as regards review of the detention on remand and for the investigation and trial. 11. On 8 March 1985 the Bayonne investigating judge dismissed an application for release which Mr Sainte-Marie had submitted to him. 12. On an appeal by the applicant, the Indictment Division (chambre d’accusation) of the Pau Court of Appeal upheld the investigating judge’s order, on 5 April 1985, on the following grounds: "... ... Jean-Pierre Sainte-Marie said that he was a member of Iparretarrak, admitted ownership of the arms, ammunition and unlawful or suspect articles found in the cars and at his home, stated that the electrical mechanisms were to be used by the organisation for the detonation of explosives at targets of which he was unaware and acknowledged having even participated as driver in the expedition of 24-25 November 1984, the objective of which had been the police barracks under construction at Lecumberry, which were partly destroyed that night by explosives. Jean-Pierre Sainte-Marie was therefore properly charged and remanded in custody, when brought before the Bayonne public prosecutor’s office on 31 January 1985, in respect of two investigations: - the first concerns a charge of using explosives to cause criminal damage to another person’s immoveable property (in connection with the destruction of the Lecumberry police station); - the second, which is the subject of the prosecution report before us, concerns charges of unauthorised possession of a category I weapon and category I ammunition, transport without a lawful reason of such a weapon and ammunition and of a category VI weapon, possession without a lawful reason of incendiary devices and criminal conspiracy. ... When he was interviewed as to the substance of the charges on 6 February 1985, Jean-Pierre Sainte-Marie, who had admitted the offences when he first appeared, refused to make any further statements. Expert examinations were carried out on the firearm and the ammunition seized, which were of the same type as those normally used by the Basque revolutionary group, Iparretarrak. The alleged offences are therefore manifestly serious ones and in the light of the available evidence the accused’s continued detention on remand is fully justified in order to prevent him from absconding since he could go into hiding like other members of the organisation. Detention is also the only means of ensuring that he does not re-offend." 13. The Indictment Division was composed of Mr Svahn, President, Mrs Plantavit de la Pauze and Mr Benhamou, judges, appointed on 22 March 1983 by the general assembly of the Court of Appeal (Article 191, fourth sub-paragraph, of the Code of Criminal Procedure). 14. On 4 July 1985 the Bayonne Criminal Court declared void the flagrante delicto investigation concerning Mr Sainte-Marie, as well as all the subsequent proceedings. It found as follows: "... The flagrante delicto procedure confers on police officers by way of exception some of the widest powers of the investigating judge, including those which seriously encroach on individual freedoms such as the inviolability of a person’s home. That is why a strict interpretation is called for of the criteria authorising what are ‘veritable investigative powers’ (Stéfani and Levasseur, Droit pénal général et procédure pénale, 1966 edition, volume II, no. 259). Admittedly Article 55 of the Code of Criminal Procedure, which defines the conditions for an investigation under the flagrante delicto procedure, does not indicate any time-limit for such an investigation, with the result that the surprisingly long duration - ten days - of that carried out following the criminal bomb attack at Mauléon is not sufficient to entail its nullity, but this extension beyond the usual period in such circumstances exposed the police officers to the risk of losing sight of the conditions laid down in the relevant provision. Thus the measures taken by them against Sainte-Marie are open to the following criticisms: In the first place, for the period from 27 January 5 p.m. to 28 January 5.50 p.m. no measure is mentioned in the recapitulatory report and no official record appears in the file of the proceedings. This interruption of over twenty- four hours removed any justification for the very prolonged continuation of the inquiry under the flagrante delicto procedure. Secondly, the attention of the police officers was finally drawn to Sainte-Marie not only because he was known to be sympathetic to the Basque separatist movements, but also by the information received on 30 January that this new suspect sometimes drove a Renault 14 of the same colour as a Simca ‘Horizon’ which had been noticed in a street of Mauléon on the night of the attack. Yet it is ‘within a very short time after the offence’ (Article 53 of the C.C.P. [Code of Criminal Procedure]) that the persons suspected must manifest ‘marks or clues’ and this temporal condition cannot be regarded as satisfied where the clue which led the investigators to Sainte-Marie’s home was only discovered by them ten days after the offences had been committed. Finally, there can be no doubt that the procedural irregularity justifiably complained of has caused prejudice to the accused. The defence is therefore well-founded in claiming that the search which led to the discovery of various articles for the possession of which Sainte-Marie is charged and which led to the confessions relied on by the prosecution was void." 15. On 14 August 1985 the Criminal Appeals Division of the Pau Court of Appeal ruled on the prosecuting authority’s appeal against the decision of the court below: "... Contrary to the claims of the defence, which were accepted without verification by the first-instance court, the inquiry was continued without interruption, day and night, until 30 January (see in particular the official record of 28 January whose existence has been ignored by the defence, who have no excuse for this because it is referred to in the recapitulatory report of the single inquiry covering the attack on the police station and the possession of weapons, the latter offence being the subject of the present proceedings) up to the discovery of the car which had been seen in the locality of the attack and the searches carried out at the home of the persons who use this vehicle, which led to the discovery of weapons and incendiary devices in the possession of Jean-Pierre Sainte-Marie, who, when questioned, denied having taken part in the attack on the Mauléon police station, but admitted to being a member of the ‘Abertzale’ movement and having participated in the attack carried out a few weeks previously on the Lecumberry police station; It follows that the two grounds of nullity invoked by the defence, grounds which were accepted by the court below, do not stand up to examination and the complaints must be dismissed; Under Article 520 of the Code of Criminal Procedure, where the decision of a court which has ruled solely on a procedural objection without examining the charges, thus relinquishing jurisdiction for the continuation of the proceedings, is declared void, the Court of Appeal must try the case on its merits; Consequently the case must be set down for hearing at a future date for the examination of whether the charges against Jean-Pierre Sainte-Marie are well-founded; FOR THESE REASONS: [The Court of Appeal] Sitting in open court and in adversarial proceedings; Holds that the appeal is admissible and well-founded; Holds that the examination of the investigation carried out under the flagrante delicto procedure by the Mauléon-Licharre police force concerning Jean-Pierre Sainte-Marie does not disclose a ground of nullity; Setting aside the relevant decision, Quashes the decision appealed and, pursuant to Article 520 of the Code of Criminal Procedure, decides to try the case itself; Sets down the case for hearing on 22 October 1985 to examine the charges; Reserves the costs." 16. The Criminal Appeals Division was composed of Mr Svahn, President, and Mr Bataille and Mr Biecher, judges, all three of whom were appointed on 20 May 1985 by the First President of the Court of Appeal (Article 510 of the Code of Criminal Procedure). 17. By a second decision, of 29 October 1985, the Criminal Appeals Division sentenced the applicant to a term of four years’ imprisonment, on the following grounds: "The case falls to be heard on its merits by the Court of Appeal in accordance with the decision of this court dated 14 August 1985. The unlawful possession of an automatic pistol, a category I weapon and ammunition for that weapon, and two molotov cocktails, which are incendiary devices, and the transport in a vehicle of such material and of a flick-knife are facts established by the findings of the police investigators in the course of the searches carried out and are moreover admitted by the accused himself; they indeed constitute the offences of unauthorised possession of category I weapons and ammunition and transport without a lawful reason of category I and category VI weapons and category I ammunition and the offence of possession without a lawful reason of incendiary devices, provided for and punished by Articles 28 and 32 of the Act of 18 April 1939 and Article 3 of the Act of 19 June 1971. The accused admitted and even asserted his membership of the Iparretarrak movement; this movement was formed with a view to attaining political objectives aimed at securing the independence and unification of the northern and southern Basque provinces; in pursuit of that aim it adopted various methods, in particular armed struggle, which make it an association or a conspiracy established with a view to the preparation and commission of offences against persons or property within the meaning of Article 265 of the Criminal Code. ... The weapons, ammunition and electrical components for devices for the detonation of explosives found in Jean-Pierre Sainte-Marie’s possession and his own statements concerning his membership of the Iparretarrak movement and on the use to which he intended to put the weapons and the materials discovered leave no doubt as to the accused’s intention of supporting that movement, the criminal aims of which are well known to him. ..." 18. The Criminal Appeals Division was composed of Mr Lasalle- Laplace, judge, replacing the President, the latter being unable to sit, and designated for this purpose by the First President on 10 December 1984, as well as Mr Bataille and Mr Biecher, judges. 19. Mr Sainte-Marie filed two appeals on points of law against the decisions of 14 August and 29 October 1985. They were dismissed by the Criminal Division of the Court of Cassation in a single judgment of 6 November 1986. In his memorial the applicant had made four submissions. Two of them related to the decision of 14 August 1985, which is not in issue here (see paragraph 24 below). The first concerned the composition of the Criminal Appeals Division when it quashed the decision of 4 July 1985 (see paragraphs 14-15 above). The Criminal Division of the Court of Cassation dismissed this complaint in the following terms: "As regards the first ground of appeal, based on the violation of Articles 49 and 591 of the Code of Criminal Procedure and of Article 6 (art. 6) of the European Convention ...[, whereby the appellant alleges as follows]: ‘In so far as it appears from the interlocutory decision of 14 August 1985 that the Pau Court of Appeal was composed of Mr Svahn, sitting as President, and Mr Bataille and Mr Biecher, judges; in the first place, these judges had sat in the same case as members of the indictment division which, in two decisions dated 5 April and 8 August 1985, had confirmed orders refusing the applicant’s release; having thus been involved in the case at the stage of the investigation, they were precluded by virtue of the provisions of Article 49 of the Code of Criminal Procedure from subsequently participating in the trial and ruling on whether the offence had been committed and on the accused’s guilt; secondly, Article 6 (art. 6) of the European Convention provides that ‘everyone is entitled to a ... hearing ... by an independent and impartial tribunal established by law ...’. The European Court has already held that impartiality must be assessed according to an objective test making it possible to affirm that a court affords sufficient guarantees to rule out any legitimate doubts in this respect; that was not the case in this instance, since, having given on two occasions, as members of an indictment division, decisions confirming orders refusing the applicant’s release, these judges had necessarily carried out a preliminary examination of the merits and adopted a position on the value of the evidence and clues against the accused, so that they were precluded from subsequently participating in the trial and ruling on whether the offence had been committed and the accused’s guilt’; The fact that judges of the Criminal Appeals Division which gave the contested decisions had, in the same case, as members of the Indictment Division, previously ruled on the accused’s detention on remand is not a ground for quashing a judgment, since no statutory provision prohibits on pain of nullity the members of the indictment division which has given such a ruling from subsequently sitting in the Criminal Appeals Division before which the case comes and, furthermore, such participation is not contrary to the requirement of impartiality laid down in Article 6 (art. 6) of the European Convention ...; Accordingly, the Court of Cassation is satisfied that the court was lawfully composed; The submission must therefore fail." The second submission concerned the lack of a statement of reasons, the failure to reply to final submissions, the lack of a legal basis and the violation of the rights of the defence (Articles 53, 56, 57, 76 and 593 of the Code of Criminal Procedure and Article 6 (art. 6) of the Convention). The remaining submissions were founded on the lack of a record of the oath of the three witnesses who testified at the appeal hearing on 22 October 1985 (Articles 437, 446 and 454 of the Code of Criminal Procedure) as well as the failure to state reasons and the lack of a legal basis for the judgment of 29 October 1985 (Articles 265 of the Criminal Code and 593 of the Code of Criminal Procedure), and not the lawfulness of the composition of the Pau Court of Appeal in these proceedings (see paragraph 17 above). 20. On the basis of the decision of 4 July 1985 (see paragraph 14 above) and contending that the proceedings in question were void, Mr Sainte-Marie applied for his release. On 8 July the investigating judge dismissed his application. 21. On 8 August 1985 the Indictment Division of the Pau Court of Appeal dismissed Mr Sainte-Marie’s appeal from the investigating judge’s order. Its decision was based on the following reasons: "The facts have already been examined in an earlier decision of this Indictment Division dated 5 April 1985 [see paragraph 12 above]; express reference is made thereto. In support of his application and his appeal, Sainte-Marie argues essentially that these proceedings, in respect of which he is detained, are void because the Bayonne Criminal Court has declared void other proceedings, the initial investigation for which had provided the legal basis for the present case. According to his lawyer, Sainte-Marie’s confessions were obtained following his arrest, held to be unlawful by the criminal court on account of the flagrante delicto procedure used. He could not therefore, it was contended, be kept in detention on that basis. However, the decision of the Bayonne Criminal Court was immediately appealed by the public prosecutor and is shortly to be examined by the Court of Appeal. As the decision of the lower court has been challenged by an appeal to the second-instance court for a new ruling on the facts and the law, the argument of the accused, who claims to be detained by virtue of proceedings which have been declared void, cannot be accepted, beyond the [question of] fact already adjudicated upon; it does not fall to the Indictment Division to give a ruling, at this stage, on this matter. The proceedings in question must therefore be regarded as perfectly lawful until such time as a final decision to the contrary has been given; Sainte-Marie should be kept in detention, at the disposal of the judicial authorities. The other arguments put forward by the accused in his memorial are not sufficient to outweigh the fact that he has already shown that he represents a danger to public order and to the institutions of the State and that it may be thought that he would not hesitate to rejoin his comrades or accomplices in hiding if he were to be released." 22. The Indictment Division was composed of Mr Svahn, President, and Mr Bataille and Mr Biecher, judges, appointed on 20 May 1985 by the general assembly of the Court of Appeal (Article 191, fourth sub-paragraph, of the Code of Criminal Procedure). 23. On 10 April 1986 the Bayonne Criminal Court sentenced Mr Sainte-Marie to five years’ imprisonment. Its judgment was upheld on 8 July 1986 by the Pau Court of Appeal. The applicant filed an appeal on points of law, which the Court of Cassation dismissed on 26 May 1987. These various decisions are not at issue in the present proceedings. | 0 |
dev | 001-73291 | ENG | BGR | CHAMBER | 2,006 | CASE OF TSONEV v. BULGARIA | 3 | Violation of Art. 11;Not necessary to examine under Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed | Christos Rozakis | 9. In 1990 the applicant founded and became the chairman of the Bulgarian Revolutionary Youth Party („Българска революционна младежка партия“). He ran for parliament in 1990 and in several later elections, unsuccessfully. Apparently he was also a presidential candidate in later elections on that party’s ballot. 10. At a meeting held on 10 November 1996 in Varna the applicant and fortynine other persons formed a party named Communist Party of Bulgaria („Комунистическа партия на България“). They adopted its constitution and elected its management organs. The applicant was elected the party’s chairman. The party’s aims, set out in the preamble to its constitution, were as follows: “... The main aim of the Communist Party shall be the revolutionary change of the Bulgarian society – democratisation of the society as a road to true power of the people. The primary goal of the party shall be the practical improvement of the socialist democracy – broadening of the direct participation of the people in the government of the state; economic freedom of the enterprises within the framework of an economy changed and armed with the new philosophy of central planning; active shift towards selfgovernment of the municipalities and the economic units as a transition towards selfgoverning communities within a society of social homogeneity. ... The Communist Party is convinced of the need for the union of the political parties, movements and eminent personalities into one political coalition – ‘Union for National Cooperation ‘Civic Forum’’, as the most proper way out of the societal antagonisms and divisions. ... The Party shall advocate a policy of rapprochement between peoples which are at different sociopolitical stages of development; of deepening of the economic, political and cultural ties between them. The Communist Party’s ultimate aim is the ‘constant improvement of society’. The Communist Party is a party of a new type. It shall struggle for political power and shall work dedicatedly for the triumph of the communist ideal – building of a civil society with the economic nature of a society ruled by the principles of scientific socialism and the political nature of a society free of class divisions, political parties and movements: a society in which the vehicle of development shall be the Man – a universally developed and harmonious personality.” 11. Articles 1 – 8 of the party’s constitution dealt with membership in the party and the members’ rights and obligations. Article 8 set out, inter alia, the grounds for expelling members. 12. Articles 9 – 26 of the constitution set out the organisational structure of the party and the powers of its organs. 13. Article 28 of the constitution, which described the party’s symbols, stated, inter alia, that they stood for the “idea of a revolutionary sociopolitical order”. 14. On 3 December 1996 the applicant, in his capacity of chairman of the party, applied to the Sofia City Court to have it registered. 15. The court held a hearing on 18 December 1996. It noted that the manner of liquidation of the party had not been provided for in its constitution, that the declarations submitted by the founders were incomplete, and that there were certain other irregularities. Accordingly, it adjourned the case for 26 February 1997 with a view to allowing the party to remedy the deficiencies it had spotted. 16. In order to rectify the deficiencies noted by the court, the applicant and the other founders held another meeting on 26 January 1997 and decided to amend the party’s constitution. On 17 February 1997 they submitted the amendments and updated declarations to the court, which admitted them in evidence. 17. A second hearing took place on 26 February 1997. 18. In a decision of 6 March 1997 the Sofia City Court refused to register the party, holding: “In the course of the proceedings the court found that the applicants have failed to comply with the requirements of sections 7, 8 and 9(2) of the Political Parties Act [of 1990], in order to make the entering of the party in the register possible. [The case-file contains] minutes from the general meeting of the [party] held on 26 January 1997, which are not duly signed. The introduction to the party’s constitution contains aims which are identical to the aims of other, already registered parties. The party’s structure is not fully and clearly set out [in its constitution]; the powers of its different organs are not clearly described, are repeated in the different provisions of the party’s constitution and thus the powers [of the party’s organs] are not clearly spelled out. The party’s constitution does not specify the manner of termination of membership in the party.” 19. On 14 March 1997 the applicant appealed to a threemember panel of the Supreme Court. 20. The court held a hearing on 4 June 1997. 21. On 9 June 1997 the threemember panel of the Supreme Court upheld the lower court’s decision. It opined: “The name of the Communist Party of Bulgaria formally does not already exist in the register [of political parties], but it does not set it apart from an already registered party – [the Bulgarian Communist Party], as required by section 8(1) of the [Political Parties Act of 1990], because in fact it contains the same words; their rearranging does not change the purport and the essence of the political party. This name does not individualise it and does not clearly set it apart from another, already registered party. [The party’s] aims, as indicated in part I of its constitution ... are contrary to section 3(2) of the [Political Parties Act of 1990]. The manner of termination of membership in the party is not set out [in its constitution], contrary to section 8(1) of the [Political Parties Act of 1990].” 22. On 1 August 1997 the applicant lodged a petition for review with a fivemember panel of the Supreme Court. 23. A hearing was held on 4 March 1998. 24. In a final decision of 19 March 1998 the fivemember panel of the Supreme Court dismissed the petition in the following terms: “The impugned decisions should not be quashed first and foremost because the name of the party – Communist Party of Bulgaria – does not set it apart from other parties, in violation of section 8(1) of the [Political Parties Act of 1990], as correctly found by the two courts below. The name is an individualising feature of the party and for that reason it should not duplicate [the names of] other parties, organisations and movements, which may ... engage in political activities. The rule of section 8(1) of the [Political Parties Act of 1990] concerning the party’s name sets the bounds of the founders’ autonomy and initiative in choosing the name. [The founders] must see to it that from a grammatical and a logical point of view there is no duplication of the purport and the essence [of the name] with the name of another party. In the case at hand the separate words which constitute the party’s name, on the one hand, and the particular wording used, on the other, although not identical to those used in other existing parties’ names, convey a similar meaning. The name “Communist Party of Bulgaria” uses the ideological term “communist”, which term, viewed in a historical context, resembles a party from the not so distant past – the Bulgarian Communist Party – and also resembles the Bulgarian Communist Party ... even though there is a rearrangement of the words... Regarding the contents of the party’s constitution, as required by section 8(1) of the [Political Parties Act of 1990], the courts [below] have correctly found that the constitution does not indicate the manner of termination of membership in the party. [The constitution sets forth] rules about the admission [of new members], about the members’ rights and the obligations and the [penalties which may be imposed on them], but there are no rules regarding the termination of the membership. Likewise, the powers of the [party’s] organs and its organisational structure are chaotically scattered throughout its constitution. The [courts below] have correctly found that the aims of the party are contrary to section 3(2) of the [Political Parties Act of 1990]. Part I of the constitution indicates that the main aim of the party [is] the ‘revolutionary change of Bulgarian society’ and the support for the idea of a revolutionary sociopolitical order – part V of the constitution.” 25. It appears that in Bulgaria at least eight other political parties are registered with the word “communist” in their names, e.g. Bulgarian United Communist Party („Българска единна комунистическа партия“), Bulgarian Communist Party of the Bolsheviks („Българска комунистическа партия на болшевиките“), Renewed Bulgarian Communist Party („Обновена българска комунистическа партия“), Bulgarian Communist Party “Georgi Dimitrov” („Българска комунистическа партия ‘Георги Димитров’“), Bulgarian Communist Party “Fatherland” („Българската комунистическа партия ‘Родина’“). 26. In the beginning of 1997 the Sofia City Court registered a party named Communist Party. On 22 April 2000 it changed its name into Communist Party of Bulgaria, which fact was likewise registered by the Sofia City Court in a decision of 16 November 2000, and published in the State Gazette on 22 November 2000 (ДВ, бр. 106 от 22 декември 2000 г.). 27. The relevant provisions of the Constitution of 1991 read as follows: “1. Citizens may freely associate. 2. Organisations whose activity is directed against the sovereignty [or] the territorial integrity of the country and the unity of the nation, towards the incitement of racial, national, ethnical or religious enmity ... as well as organisations which seek to achieve their goals through violence are prohibited. 3. The law shall specify the organisations which are subject to registration, the manner of their dissolution, as well as their relations with the State.” 28. The relevant provisions of the Political Parties Act of 1990 („Закон за политическите партии“), as in force at the relevant time, read: “No political party shall be founded: 1. [which is] aimed against the sovereignty and the territorial integrity of the country, [or] the rights and freedoms of its citizens; 2. whose aims are contrary to the Constitution and the laws of the country; 3. [which is based] on ethnicity or religion, or [aims] to spur racial, national, ethnical or religious hatred; 4. which advocates a fascist ideology, or tries to achieve its goals through violence or other unlawful means.” “A political party shall be formed at a founding meeting upon the agreement of at least fifty enfranchised citizens. The founding meeting shall adopt its constitution and elect the management organs.” “The constitution of a political party shall set forth: its name, which shall set it apart from other parties; its seat; its aims and objectives; the manner of becoming a member and of terminating the membership; the rights and obligations of the members; the managing organs; the party’s symbols; the sources of financing, as well as the manner and conditions for the party’s liquidation.” “1. The political party shall be entered in a separate register kept by the Sofia City Court, on application by the organ which represents it according to its constitution. 2. The application shall be accompanied by copies of: the minutes of the founding meeting, the party’s constitution, and a list of the names and addresses of the members of the party’s managing organ, which represents it according to its constitution. ...” “A political party ceases to exist: ... 4. when it is dissolved by decision of the Supreme Court [of Cassation].” “1. [A political party may be dissolved] upon the proposal of the Chief Prosecutor, if the party engages in activities which run counter to section 3 [of this Act]. 2. The decision of the Supreme Court [of Cassation] to dissolve a party may be appealed to a five-member panel [of that court].” 29. By section 12(1) and (2) of the Political Parties Act of 2001, in force until April 2005, a party could be dissolved by decision of the Sofia City Court on the application of a public prosecutor if, inter alia, the party systematically contravened the Act’s provisions, its activities ran counter to the provisions of the Constitution, or it had been declared unconstitutional by the Constitutional Court. By section 40(1) and (2) of the Political Parties Act of 2005, presently in force, the Sofia City Court, acting pursuant to the application of a public prosecutor, may order the dissolution of a party if its activities systematically contravenes the Act’s requirements or the provisions of the Constitution. | 1 |
dev | 001-93410 | ENG | ALB | CHAMBER | 2,009 | CASE OF GRORI v. ALBANIA | 3 | Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 34;Non-pecuniary damage - award | Giovanni Bonello;Ján Šikuta;Josep Casadevall;Kristaq Traja;Nicolas Bratza;Päivi Hirvelä | 6. The applicant was born in 1971 and is currently serving sentences of life imprisonment and 15 years’ imprisonment in Peqin High Security Prison (Albania). 7. On 6 October 1997 the Italian authorities issued an arrest warrant in respect of the applicant, charging him with the premeditated homicide of an Albanian national in Milan, Italy. 8. On 2 February 2001 the applicant was sentenced in absentia to life imprisonment by the Milan Assize Court of Appeal on a count of murder and to five years’ imprisonment on a count of illegal possession of firearms. 9. On 16 February 2001 the Italian authorities issued a second arrest warrant concerning the applicant which related to a new charge against him, namely participation in a criminal organisation and international narcotics trafficking. From the documents in the file it transpires that during the period of the proceedings before the Italian courts the applicant was carrying on a lawful business and resided in Albania. 10. On 29 April 2001 Interpol Albania transmitted to the Tirana Police the two arrest warrants mentioned above. On the same date the Chief of the Tirana Criminal Police ordered that “the arrest warrants be immediately enforced”. 11. On 30 April 2001 Interpol Rome sent a fax to the Albanian authorities seeking the initiation of criminal proceedings against the applicant for crimes committed on Italian territory. 12. On 30 April 2001 the applicant was arrested in Albania on the strength of the arrest warrant issued on 16 February 2001 by the investigating judge at the Milan Court of Appeal. The charge related to the applicant’s involvement in a criminal organisation and international drug trafficking. 13. On 1 May 2001 the applicant was remanded in detention for 15 days. 14. On 12 May 2001 the Tirana District Court, (“the District Court”), dismissed an appeal by the applicant against the grounds of his arrest. On the same day, the prosecutor informed the applicant about the charges against him, namely participation in a criminal organisation and international narcotics trafficking. 15. On 15 May 2001 the District Court upheld the prosecutor’s application and ordered the applicant’s detention in prison for an undetermined period. On 4 June 2001 the Supreme Court upheld the decision. 16. In June and December 2001 the General Prosecutor’s Office repeatedly requested the Italian authorities to transmit the evidence that grounded the charges against the applicant. In January 2002 the request was also repeated by the Albanian Minister of Justice. 17. On 30 July 2002 the General Prosecutor’s Office instituted criminal proceedings in the Tirana District Court, charging the applicant with international narcotics trafficking (hereinafter “the criminal proceedings”). 18. On 29 December 2003 the District Court found the applicant guilty of establishing a criminal organisation and international narcotics trafficking and sentenced him to 19 years’ imprisonment. According to the applicant, the conviction related to a new charge of which he had never been informed. On 25 June 2004 the Tirana Court of Appeal, (“the Court of Appeal”), upheld the District Court’s judgment but changed the applicant’s sentence to 17 years’ imprisonment. The applicant appealed to the Supreme Court. On 23 June 2006 the Supreme Court changed the qualification of one of the criminal offences of which the applicant had been convicted. It upheld the Court of Appeal’s judgment and changed the applicant’s sentence to 15 years’ imprisonment. A constitutional complaint by the applicant to the Constitutional Court against the above-mentioned judgments is still pending. 19. On 21 February 2002, while the applicant was in detention on remand on the charges of participation in a criminal organisation and international narcotics trafficking (see paragraph 12 above), the Milan public prosecutor’s office asked the Italian Ministry of Justice to request the Albanian authorities to validate in Albania the sentence imposed on the applicant by the Milan Assize Court of Appeal on 2 February 2001, which had become final on 30 January 2002. 20. On 28 March 2002 the Italian Ministry of Justice, among other things, informed the Milan public prosecutor’s office that the Italian authorities could not seek the validation and enforcement in Albania of a criminal judgment delivered by the Italian courts, in view of the fact that neither country was party to any international agreement on the matter. On the same day the Italian Ministry of Justice transmitted the above-mentioned judgment, for information purposes, to the Albanian Embassy in Rome. 21. On 8 April 2002 the Albanian Embassy in Rome, in a letter with the misleading heading “Transfer of an Albanian national currently detained in Italy”, informed the Albanian Government of the “request for extradition” by the Italian Ministry of Justice concerning the applicant, who, according to the Embassy’s letter, was “serving a sentence in Italy”. 22. On 23 April 2002 the Governments of Italy and Albania signed an agreement for the transfer of sentenced persons, which was ratified by the respective parliaments in 2003 and 2004. 23. On 3 May 2002 the Albanian Ministry of Justice, under Article 512 of the Albanian Code of Criminal Procedure (“the CCP”), requested the General Prosecutor’s Office to institute proceedings for the validation and enforcement in Albania of the judgment concerning the applicant delivered by the Italian court. 24. On 15 May 2002 the District Court, in a single-judge panel, ordered the applicant’s detention pending the proceedings for the validation and enforcement in Albania of the Milan Assize Court of Appeal’s judgment of 2 February 2001. The applicant was served with the decision while he was in detention in connection with the criminal proceedings referred to above (see paragraphs 17-18 above). 25. On 10 May 2002, under Articles 512 and 514 of the CCP, the General Prosecutor’s Office initiated proceedings before the District Court for the validation and enforcement in Albania of the judgment delivered by the Milan Assize Court of Appeal (hereinafter “the validation and enforcement proceedings”). 26. According to the applicant’s submissions to the District Court in May 2002, Article 514 of the CCP required, inter alia, his consent for the validation and enforcement in Albania of the Milan Assize Court of Appeal’s judgment, which consent he decided not to give (see paragraph 85 below). 27. On 13 June 2002 Parliament adopted amendments to the provisions of the Code of Criminal Procedure, which, inter alia, repealed the requirement of the detainee’s consent provided for in point (e) of Article 514 of the CCP (see paragraph 86 below). 28. On 17 June 2002 the General Prosecutor filed further observations with the District Court, pointing out, among other things: “...in spite of the fact that the consent of the sentenced person is required by Article 514 (e) of the CCP for the validity in Albania of a sentence imposed by a foreign authority, this should be interpreted only in circumstances involving the transfer of sentenced persons and not in such a manner as to hinder the course of justice. Moreover, Parliament, by Law no. 8813 of 13 June 2002, abrogated point (e) of Article 514 of the CCP...” 29. On 20 June 2002 the District Court rejected the General Prosecutor’s request as not being in compliance with the requirement in Article 514, point (e), of the CCP. The court held: “...the requirement laid down in Article 514, point (e), of the CCP is necessary for the validity and enforcement in Albania of a sentence imposed by a foreign authority in accordance with the Convention on the Transfer of Sentenced Persons and the provisions of domestic law. In accordance with the wording of the above-mentioned Article, the consent of sentenced persons is required without any distinction between the circumstances of the transfer of detainees or the validity of the sentence imposed by a foreign court. Moreover, Law no. 8813 of 13 June 2002, which abrogates point (e) of Article 514, is not applicable in the present case since it has not come into force for the time being ...” 30. On 24 July 2002 the Court of Appeal dismissed an appeal by the General Prosecutor. The court upheld the reasoning set out in the District Court’s judgment and held that Law no. 8813 of 13 June 2002 could not be applicable retroactively on the ground that it would have resulted in more severe provisions being applied to the applicant’s detriment. 31. On an unspecified date in 2002 the General Prosecutor lodged an appeal with the Supreme Court (Criminal Division) against the Court of Appeal’s judgment. 32. On 29 October 2002, in order to harmonise and amend the courts’ practice (për unifikimin dhe ndryshimin e praktikës gjyqësore), the President of the Supreme Court relinquished jurisdiction in favour of the Supreme Court’s Joint Benches. 33. On 30 January 2003 the Supreme Court, Joint Benches, quashed the judgments of the Court of Appeal and the District Court and remitted the case for fresh consideration to the District Court. In its judgment, the Supreme Court interpreted provisions of the CCP relating to extradition, the transfer of sentenced persons and the validity and enforcement in Albania of sentences imposed by foreign courts, giving its definition from the standpoint of international law principles and inter-State cooperation. The court held that in circumstances where no ruling could be given on a specific issue because the relevant provisions were inadequate, a legal basis could be provided by international customs, namely the principle of good will and reciprocity, and treaties. In the present case, finding that the requirement laid down in Article 514, point (e), of the CCP was inadequate, it considered that the European Convention on the International Validity of Criminal Judgments and the European Convention on the Transfer of Sentenced Persons provided a sufficient basis for the validation and enforcement in Albania of the Milan Assize Court of Appeal’s judgment. 34. The judgment stated, in so far as relevant, the following: “The transfer of sentenced persons has been regulated by the European Convention on the Transfer of Sentenced Persons as ratified by the Parliament of the Republic of Albania and published in the Official Journal no. 22 of 1999 (...). The European Convention on the International Validity of Criminal Judgments has been signed but not yet ratified by the Parliament. As such, this Convention cannot be considered a constituent part of the domestic legal corpus and is not directly applicable. However, its signature and the approval of the engaging provision according to which the State recognises and respects the generally recognised norms and principles of the international law, guide us to understand, interpret and justly apply the provisions of the CCP at issue. (...) In the case of validity and enforcement of a foreign criminal judgment, the reference to and the solution of the case in accordance with point (e) of Article 514 of the CCP, at the material time, would be nonsense. Were the court to regard the consent of the sentenced person as essential, that would lead to an ad literam interpretation of the provision, as applied by the District Court and the Court of Appeal. However, the interpretation of a legal provision is rather complex. In the event the ad literam interpretation leads to an absurdity [nonsense], a logical and systemic interpretation prevails. According to this interpretation, the said provision shall be interpreted in a reasonable manner. This means that the notion of “the consent of the sentenced person” cannot be broadly interpreted. It should be narrowly interpreted so as not to lead to an absurdity, which would be the case, were the appellant to give his consent to serve the criminal sentence in his country. As it transpires from the acts, the appellant was tried in absentia since he absconded from the Italian justice. (...) The consent of a person sentenced by a foreign court is a sine qua non for the determination of the question whether the sentence is served in the sentencing State or in the detainee’s country of origin, that is in the prisons of the country of which he is a citizen [emphasis added in the original text]. (...) This decision of the Supreme Court, Joint Benches, finally resolves the problem, holding that the lack of consent by the sentenced person for the validation of a foreign criminal judgment is not an obstacle for the Albanian courts to proceed with such a validation and recognition [emphasis added in the original text]. During the examination of the case, the appellant’s counsel stated that there is no bilateral agreement between Albania and Italy as regards the validity and enforcement of criminal judgments. They maintained that such an act would impinge upon the sovereignty of the Albanian state, which is exercised by the Parliament through the ratification of an international or bilateral agreement. This claim is unfounded. The Albanian Parliament manifested its sovereign will through the enactment of the CCP, whose provisions at issue should be applied in accordance with their meaning and the unified interpretation of the Supreme Court as outlined above. It must be underlined that in the absence of signed and ratified instruments, the generally recognised norms of the international law may apply in accordance with the principle of good will and reciprocity. Pursuant to the CCP, the Ministry of Justice is responsible for jurisdictional relations with foreign authorities, including the Italians. According to Article 512 of the CPP, it is within the discretion of the said Ministry as a manifestation of the political will of the Albanian State, to request the validation before a court of a foreign judgment. The Court shall not examine this kind of discretion. It shall only examine whether the request has been made by the competent authority in accordance with the law and whether the documentation is complete.” 35. In the retrial proceedings before the District Court, the applicant claimed that there had been no request by the Italian authorities for the validation of the Italian criminal judgment against him, having also regard to the Italian authorities’ letter of 28 March 2000 (see paragraph 20 above). Furthermore, he added that there was no bilateral agreement between the two States for such a validation to take effect. The applicant also relied on the fact that he had not given his consent for the validation. 36. On 20 May 2003 the District Court, sitting as a bench of three judges, relied entirely on the judgment of the Supreme Court of 30 January 2003. It held that the sentence imposed by the Milan Assize Court of Appeal was compatible with the provisions of the Albanian CCP as amended by Law no. 8813 of 13 June 2002. It ruled that the applicant should serve cumulative sentence of life imprisonment in Albania on a count of murder and a count of illegal possession of firearms. 37. The presiding judge, E.K., expressed a partly dissenting opinion on the above-mentioned judgment, reminding the court that the relevant statutory provisions laid down a maximum penalty of 25 years’ imprisonment instead of life imprisonment as imposed in the applicant’s case. 38. According to the applicant’s submissions in the present proceedings before the Court, the District Court applied those parts of Law no. 8813 of 13 June 2002 that contributed to the aggravation of his situation. Moreover, in accordance with Article 13 of the CCP as amended by the above-mentioned Law, the court should have sat in a single-judge formation in his case. Furthermore, he maintained that, having regard also to Judge E.K.’s dissenting opinion, the composition of the bench could have influenced the outcome of the proceedings. 39. On an unspecified date in 2003 the applicant filed an appeal, invoking the same grounds as he did before the District Court. 40. On 10 September 2003 the Court of Appeal dismissed the appeal and upheld the District Court’s judgment, fully relying on the Supreme Court’s judgment of 30 January 2003. 41. The applicant noted that at the last hearing of the appeal proceedings, Judge Sh.B., who had presided over the trial until that moment, had been substituted by Judge D.B. without a formal decision. 42. The applicant produced to the Court two Court of Appeal judgments which have the same text but were delivered by two different benches: the first by a bench presided over by Sh.B. and the second by another bench presided over by D.B. 43. On 9 October 2003 the applicant lodged an appeal with the Supreme Court. He relied on almost the same grounds of appeal as he did before the District Court and the Court of Appeal. Moreover, the applicant challenged the application of the generally recognised norms of international law as inadequate and imprecise. 44. On 30 January 2004 the Supreme Court dismissed the applicant’s appeal as the grounds of appeal fell outside the scope of Articles 432 and 448 § 2 of the CCP (see paragraphs 82 and 83 below). 45. In April 2004 the applicant appealed to the Constitutional Court challenging the Supreme Court’s judgments of 30 January 2003 and 30 January 2004. He alleged that the proceedings had been unfair in various respects. In particular, he complained that the criminal proceedings had been in breach of the CCP’s requirements as laid down in Articles 13 (composition of courts), 514 (sentenced persons’ consent) and 512 (for the validation and enforcement in Albania of a sentence imposed by a foreign authority, a request addressed by the foreign authority and a valid international and/or bilateral agreement had to be in force in both countries). The applicant maintained that no request for the validation of the sentence had been addressed by the Italian authorities to the Albanian Minister of Justice, nor had there been any international convention in force between the countries at the material time. 46. On 12 July 2004 the Constitutional Court dismissed the applicant’s appeal. It found the Supreme Court’s judgments of 30 January 2003 and 30 January 2004 constitutional. Moreover, it held that even though the composition of the District Court’s bench of 20 May 2003 was in breach of the law, it did not render the process unconstitutional as a whole. As regards the existence of two judgments delivered by different benches of the Court of Appeal on 10 September 2003, the Constitutional Court noted that there was only one judgment in the case file, which corresponded to the bench that had decided the case. 47. The judgment stated, in so far as relevant, as follows: “The Constitutional Court considers that the arguments raised in the Supreme Court’s, Joint Benches, judgment [of 30 January 2003] are not in breach of the Constitution or [international] conventions. The mutual recognition [validation] of court judgments serves to strengthen legal cooperation between States and the achievement of certain objectives in relation to the freedom of liberty, security and justice. The principle of reciprocity presupposes the application of mutual and legal instruments in inter-state relations. In international law, reciprocity is defined as the right to equality and mutual respect amongst countries. International criminal doctrine and case-law have confirmed that cooperation amongst countries can occur even in the absence of bilateral treaties, on the basis of the principle of reciprocity. As a rule, the principle of reciprocity applies through international instruments such as treaties and agreements, which envisage mutual rights and obligations. But, in exceptional cases, in the absence of such agreements, the States are not precluded from directly applying the principle of reciprocity, the generally recognised norms of international law and good will. Their application is in the interest of strengthening the States’ cooperation in the fight against organised crime and criminality. The Constitutional Court notes that the judgment of the Supreme Court, Joint Benches as regards Articles 512 and 514 is not unconstitutional. They [the Supreme Court] rightly concluded that there was no conflict between those provisions and the international conventions’ provisions. The domestic provisions should apply in accordance with the interpretation made by the [Supreme Court] Joint Benches. (...) It may be understood (...) that the request for the validation of a foreign court judgment may be made even in the absence of an agreement, on the basis of good will, generally recognised norms and the principle of reciprocity.” 48. On 24 September 2003, 13 January 2004 and 16 February 2004, in view of the deterioration in the applicant’s health, his representative and his father requested the Ministry of Justice and the prison authorities to allow him to be examined by appropriate doctors. 49. From 23 August 2004 to 31 August 2004 the applicant underwent in-patient treatment and examinations at Tirana Prison Hospital. During that period an initial magnetic resonance imaging (MRI) scan was carried out. He was diagnosed as suffering from multiple sclerosis (MS). The doctors reported that, even when the disease was quickly detected and treated, it was capable of causing shock, organ damage, permanent disability or death. 50. On 29 September 2004 a second MRI scan was carried out. 51. On 5 October 2004 the applicant’s representative informed the Registry that the applicant’s state of health had deteriorated and that he consequently needed further treatment and an essential medical examination by specialist neurologists. He filed two reports regarding the applicant’s state of health, which the doctors reported had worsened. 52. On 7 January 2005 Tirana High Security Prison requested authorisation from the Tirana prosecutor’s office for medical examinations at Tirana Prison Hospital in respect of the applicant and eight other inmates. 53. On an unspecified date in January 2005 the Tirana prosecutor’s office gave its approval in relation to the other eight prisoners and rejected the request concerning the applicant, stating that it was not competent to rule on his transfer from prison. It designated the General Prosecutor’s Office as the competent authority. 54. On 13 January 2005 Tirana High Security Prison reiterated its request to the General Prosecutor’s Office concerning the applicant’s medical treatment, but received no response. On 17 January 2005 the prison requested the Ministry of Justice’s General Prison Unit to designate the competent authority to decide on the applicant’s transfer for medical purposes. 55. On 16 February 2005 the applicant initiated criminal proceedings against the Tirana prosecutor’s office, complaining that its neglect in ensuring his medical care had contributed to the worsening of his health, which constituted discrimination vis-à-vis those prisoners who had been allowed to have medical treatment. 56. On 26 February 2005 the applicant was transferred to Peqin Prison, a high-security prison located approximately 100 km from Tirana Prison Hospital and detained under a high-security regime. 57. From February 2005 onwards the applicant was refused the opportunity to meet his lawyers and have any other contact with them. 58. On 15 April 2005, following repeated requests by the doctors of Peqin Prison, the applicant was sent to Tirana Prison Hospital for a medical examination. Following consultations among the doctors of that hospital and Tirana Civil Hospital on 19 April 2005, the applicant’s diagnosis was confirmed and they concluded that it was imperative for his health that he be treated with interferon-beta. 59. In a letter of 23 May 2005 the applicant’s representative informed the Registry that from April 2005 the prison authorities had suspended the applicant’s medical treatment, contrary to the doctors’ opinions, and that he was treated with vitamins and anti-depressant drugs. 60. In a letter of 28 June 2005 the applicant’s representative informed the Registry that without a court decision, the applicant had been placed under the special prison regime provided for in section 43 of the Prisoners’ Regime Act, which derogated from the conditions for ordinary detention laid down in the Act. 61. On 4 November 2005, following persistent requests by the applicant, the General Directorate of Prisons assessed him and reported on the medical treatment he was being given, finding that he was being treated mainly with drugs prescribed to cure rheumatism. 62. In 2005 the applicant initiated several sets of criminal proceedings against the Head of Tirana Prison Hospital, complaining of negligence in the provision of medical care to him. On unspecified dates the General Prosecutor’s Office dismissed his applications, and appeals by the applicant against the prosecutor’s decisions are still pending before the domestic courts. 63. From 21 to 24 February 2006 the doctors confirmed that the applicant suffered from multiple sclerosis. They reported deterioration in the applicant’s health, caused by the total lack of medical treatment for over two years. Fearing for his life, they strictly recommended that the applicant immediately receive adequate medical treatment. 64. In response to the applicant’s request of 3 January 2008, the President of the Chamber decided, on 10 January 2008, to indicate to the Albanian Government an interim measure under Rule 39 of the Rules of Court, stating that “the applicant should immediately be transferred to a civilian hospital in order that a medical examination of his condition can be carried out and that he can be given the treatment appropriate to his condition.” The President also decided to request the Government to immediately inform the Court of any decision to retransfer the applicant to Peqin High Security Prison, attaching any relevant medical certificate supporting his retransfer. 65. In the afternoon of 10 January 2008, given that it was the first time that an interim measure was being applied in respect of Albania, the Registrar of the Fourth Section, (“the Registrar”), spoke to the Government’s Agent over the telephone and officially notified the content of the interim measure and the importance of complying therewith. The Government’s Agent was informed that a copy of the notification of the indication under Rule 39 would be subsequently sent by facsimile. 66. Several attempts to send the notification by facsimile were unsuccessful in the evening of 10 January 2008. On the morning of 11 January 2008, having regard to the recurring problem with the facsimile, a scanned copy of the notification was sent by electronic mail to the Government Agent who acknowledged receipt thereof (also via electronic mail). On the same morning, the Government’s Agent informed the Court in a telephone conversation that she had urgently contacted the Ministry of Justice, the Ministry of Health, the General Prosecutor’s Office and other responsible state institutions in order to comply with the Court’s interim measure. In their written submissions, the Government confirmed the above statement. 67. From 11 January to 22 January 2008 the Government did not provide any information concerning any measures taken to comply with the Court’s interim measure of 10 January 2008. 68. On 23 January 2008 the applicant informed the Court that he had not yet been transferred. 69. On 24 January 2008 the applicant’s letter was forwarded to the Government, drawing their attention to the fact that a failure to comply with an interim measure could give rise to a violation of Article 34 of the Convention. 70. On 25 January 2008, following an order of the General Directorate of Prisons, the applicant was transferred to Tirana Prison Hospital with a view to being taken to hospital for the conduct of medical examinations. On the same day the applicant refused to be transferred to hospital and started a hunger strike. He alleged that the authorities had to provide him with the appropriate treatment instead of conducting medical examinations. 71. On 28 January 2008, the Registrar made several calls to the applicant’s representative and to the Government Agent. The Registrar urged the applicant to end the hunger strike and to comply with the Court’s interim measure about his transfer to hospital, where a medical examination of his situation would be conducted. The Registrar also called upon the authorities to comply with the Court’s interim measure and to refrain from any use of force, as alleged by the applicant. 72. On the same day, the applicant was transferred to the neurology ward of Tirana University Hospital Centre’s (Qendra Spitalore Universitare – “the UHC”) where he had specialised medical examination. 73. On 29 January 2008, following a letter of the UHC that the applicant’s presence was no longer required, the applicant was transferred to Tirana Prison Hospital. 74. On 30 January 2008 the Government provided the Court with a copy of the applicant’s medical file following the medical examinations of 28 January 2008. A doctors’ panel had concluded that the applicant suffered from multiple sclerosis. The doctors’ panel recommended that the applicant be treated with interferon beta with a view to stabilising his health and preventing progression of the disease. The doctors were unable to accurately describe the progression of the disease over the years, as he had not been under medical care. They expressed the view that the applicant’s health did not present any urgency and, under these circumstances, patients were usually treated as out-patients without any need to be hospitalised. 75. On 14 July 2008 the Government confirmed that the applicant’s treatment with interferon beta had started on 17 June 2008 in accordance with the doctors’ panel’s conclusions. The treatment was being administered every other day and it would appear that the applicant’s health has been stable ever since. 76. On 16 September 2008 the President of the Chamber decided to refuse the applicant’s request for the application of a renewed Rule 39 indication. The Government, however, were requested “to inform the Court on a regular basis about the applicant’s state of health and to provide medical evidence of this, bearing in mind that the applicant’s health conditions may necessitate specialised assistance while in prison.” 77. On 12 March 2009 the Government informed the Court that the applicant has been regularly provided with interferon beta and other medicines appropriate to his health. 78. Article 4 §§ 1 and 2 of the Constitution provides that the law constitutes the basis and delimits the boundaries of the activities of the State and that the Constitution is the highest law in the Republic of Albania. 79. Article 5 of the Constitution provides that the Republic of Albania applies international law that is binding upon it. 80. The Code of Criminal Procedure, in its relevant parts, provides as follows: 81. Article 13 § 2, point (ç), of the CCP, as amended by section 1 of Law no. 8813 of 13 June 2002 (in force from 11 July 2002), provides that “...district courts shall sit in a single-judge formation in cases concerning cooperation with foreign authorities...”. 82. Article 432 provides that an appeal to the Supreme Court should be made when: (a) the criminal law has not been respected or has been applied erroneously; (b) there have been breaches resulting in the nullity of the court’s judgment in accordance with Article 128 of the CCP; (c) there have been procedural violations that have affected the adoption of the decision. 83. Article 448 § 2 provides that a judgment of retrial proceedings may be appealed to the Supreme Court only in so far as it does not relate to any grounds that were previously decided upon by the Supreme Court. 84. Article 512, on the validity in Albania of foreign sentences, provides that the Ministry of Justice, when informed of a sentence imposed by a foreign authority concerning Albanian citizens, must send the prosecutor’s office a copy of the judgment and any relevant documents. The Ministry of Justice requests the validation of a foreign sentence when it considers that in accordance with an international convention, the decision in question must be executed or any other effects of it must be recognised in Albania. 85. Article 514 of the Code of Criminal Procedure, before being amended by Law no. 8813 of 13 June 2002, provided that a foreign court’s sentence could not be recognised and enforced in Albania in any of the following circumstances: (a) the sentence had not become final according to the laws of the State in which it had been imposed; (b) the sentence contained provisions which ran counter to the principles of the rule of law as applied by the Albanian State; (c) the sentence had not been imposed by an independent and impartial court or the defendant had not been summoned to appear before the trial or had not been granted the right to be questioned in a language that he understood and to be assisted by a defence lawyer; (ç) there were justified reasons to believe that the proceedings had been influenced by considerations regarding race, religion, sex, language or political beliefs; (d) the act for which the sentence was imposed was not provided for as a criminal offence in Albanian law; (dh) a final decision had been delivered or criminal proceedings were in progress in Albania in respect of the same act and against the same person; or (e) the sentenced person or his representative had not granted his consent. 86. Section 64 of Law no. 8813 of 13 June 2002 (in force from 11 July 2002) provides: “Article 514 § 1, point (e), of the CCP shall be abrogated.” 87. Article 78 of the Criminal Code, as in force at the time when the offence was committed in 1997, provided that a person convicted of premeditated homicide should be sentenced to a term of fifteen to twenty-five years of imprisonment and, where there were aggravating circumstances, to life imprisonment or death. 88. Taking into consideration the revival of blood feuds in the north and the north-east region of Albania, Law no. 8733 of 24 January 2001, which came into force on 13 March 2001, amended inter alia Article 78 of the Criminal Code by adding a new paragraph that regulates revenge killings in order to stop the total destruction of families. The new provision, in force at the time the Italian sentence was converted by the Albanian courts, reads as follows: “1. A person convicted of premeditated homicide shall be sentenced to a term of fifteen to twenty-five years of imprisonment. 2. A person convicted of premeditated homicide because of an interest or/and vendetta shall be sentenced to a term of between twenty years and life imprisonment.” 89. Section 33 of the Prisoners’ Rights Act, as in force at the material time, provided that, in the absence of medical treatment in the prison’s health unit and when necessary, the prisoner may be transferred to a prison hospital or other medical institution, upon the order of the prosecutor. The prisoner has the right to appeal within five days to the district court against the prosecutor’s refusal [to transfer him to a hospital]. 90. The Convention entered into force in respect of Albania on 23 January 2004. It was signed by Italy on 4 February 1971 and for the time being has not been ratified. Thus, it was not in force in respect of either country on 20 May 2003, when the applicant was convicted by the Tirana District Court. Its relevant provisions read as follows: “1. A Contracting State shall be competent in the cases and under the conditions provided for in this Convention to enforce a sanction imposed in another Contracting State which is enforceable in the latter State. 2. This competence can only be exercised following a request by the other Contracting State.” 91. The objectives of the 1983 Transfer Convention, including its Additional Protocol of 1997, are to develop international cooperation in the field of criminal law and to further the ends of justice and social rehabilitation of sentenced persons. The Preamble to the Transfer Convention states that these objectives require that foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society. Its provisions, in so far as relevant, read as follows: Article 1 – Definitions “For the purposes of this Convention: (...) c. “sentencing State” means the State in which the sentence was imposed on the person who may be, or has been, transferred; d. “administering State” means the State to which the sentenced person may be, or has been, transferred in order to serve his sentence”. Article 3 – Conditions for transfer “1. A sentenced person may be transferred under this Convention only on the following conditions: a. if that person is a national of the administering State; (...)” 92. The Transfer Convention entered into force in respect of Albania on 1 August 2000 and in respect of Italy on 1 October 1989. The Additional Protocol has not been ratified to date by either country. 93. The CPT visited Albania in 2005, 2006 and 2008. In 2005, the delegation inspected, inter alia, Tirana Prison Hospital. 94. In this report (CPT/Inf (2006) 24) the CPT found that the health-care facilities, “were of a very poor quality in all the establishments visited. For instance, a piece of equipment as basic as weighing scales was absent everywhere. Needless to say, such a state of affairs also hampers the adequate oversight of the nutrition provided in the establishment, as well as the supervision of hunger strikes which occurred from time to time. It is also of concern that no running water was available in the dentist’s surgery at Tirana-Vaqarr Prison. Further, both at Tepelena Prison and Tirana-Prison No. 313, the state of cleanliness and hygiene in the doctors’ consultation rooms left much to be desired.” 95. The CPT further noted “a number of serious shortcomings as regards the medical screening upon admission in the prisons visited (in particular, examinations not being carried out systematically or only in a very perfunctory manner).” It also expressed its concern “that newly arrived remand prisoners were not systematically screened for transmissible diseases (such as hepatitis B and C, HIV, syphilis and tuberculosis), and that no information was being provided to inmates regarding the prevention of such diseases”. 96. The CPT noted that at Prisons nos. 302 and 313 a number of medical files were not available. When “found”, those files contained nothing other than the names of the prisoners concerned. 97. As regards the treatment of patients with serious medical conditions, the CPT observed that a number of individual cases illustrated alarming shortcomings in some of the establishments. The relevant excerpts state: “At Tepelena Prison and Tirana-Vaqarr Prison, the delegation met two prisoners who, due to their health condition (severe psychosis and an advanced stage of cancer, respectively), were in urgent need of specialised treatment in a hospital setting. However, no initiatives had been taken to transfer the prisoners concerned to the Prison Hospital. During the end-of-visit talks, the delegation requested the Albanian authorities to take urgent measures in respect of the two above-mentioned cases. In their letter of 14 July 2005, the Albanian authorities confirmed that both prisoners had been transferred to the Prison Hospital. At Tirana-Vaqarr Prison, the delegation met a prisoner suffering from diabetes who was not receiving a special diet. The CPT must stress that such a state of affairs amounts to a denial of treatment. Further, in the case of another prisoner at Tirana-Vaqarr, who was suffering from tuberculosis, the delegation observed that there had been a considerable delay in transferring the prisoner concerned to the Prison Hospital. Further, no protective measures had been taken during his transfers to the hospital, in order to avoid other prisoners or members of staff becoming infected with the disease.” 98. The CPT recommended that the Albanian authorities review the provisions of health care in the establishments visited. 99. In this report (CPT/Inf (2007) 35) the CPT noted the domestic authorities’ failure to implement their recommendations, particularly as regards the medical examinations on admission to pre-trial detention facilities. 100. The CPT noted that “no improvements had been made as regards the general provision of health care in either establishment visited, notwithstanding various recommendations made by the CPT in the reports on the 2003 and 2005 visits”. 101. As regards one of the pre-trial detention facilities that the CPT visited, it noted that “conditions in the health-care facilities were appalling. The delegation received many complaints from inmates about delays in having access to the doctor and the quality of the health care provided; the delegation observed itself, on the spot, the case of one inmate in need of urgent medical care who had been left in a state of total neglect”. 102. The CPT raised the issue of long delays which had been observed in transferring inmates who were in urgent need of hospitalisation to a hospital. “The 2006 visit demonstrated that this problem had not yet been resolved. The delegation was informed that general hospitals were reluctant to admit detainees from pre-trial detention facilities, due to security considerations, while transfers to the Prison Hospital in Tirana were reportedly difficult, because the Prison Hospital falls under the authority of the Ministry of Justice”. 103. In this report (CPT/Inf (2009) 6) the CPT found that the provision of general health care appeared on the whole to be adequate in most of the establishments visited, despite situations which gave rise to particular concern. It also noted some improvements as regards medical examinations on admission, even though that “remains a particularly problematic area in the Albanian prison system”. 104. The CPT found that there had been shortcomings in the provision of specialist care, notably the provision of dental care and psychiatric care. | 1 |
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