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dev | 001-72636 | ENG | TUR | CHAMBER | 2,006 | CASE OF DEVRİM TURAN v. TURKEY | 2 | No violation of Art. 3;Violation of Art. 13;Remainder inadmissible (other aspect of the Art. 3 complaint);Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings | David Thór Björgvinsson | 4. The applicant was born in 1979 and is currently detained in the Ankara Prison 5. On 23 May 1999 at about 3 p.m. the applicant, who was working for a newspaper called Kurtuluş, was taken into police custody in the district of Almus in the province of Tokat by police officers on suspicion of membership of an illegal organisation, namely the DHKP/C (Revolutionary People’s Liberation Party-Front). At about 5 p.m. she was taken to the Almus State Hospital, where a medical report was issued. In the report, the presence of a 0.5 x 1 cm. abrasion under the right eye was noted. It was stated that this abrasion had probably been caused as a result of an irritation. The medical report further indicated that there were no signs of ill-treatment on her body. 6. On the same day, the applicant was transferred to the province of Tokat to be interrogated by the Anti-Terrorism Branch of the Tokat Security Directorate. Before being taken to the Security Directorate Building, at about 7.45 p.m. the applicant was sent to the Tokat State Hospital for a medical examination. The medical report indicated the presence of a hyperaemia under the right eye and an abrasion on the right side of the nose. Thereafter at about 8.10 p.m. the applicant was taken to the Tokat Maternal Hospital for a gynaecological examination with a request to establish her virginity status. As she did not give her consent, the applicant did not undergo a gynaecological examination. At 9 p.m. the applicant was taken once again to the Tokat State Hospital, this time for a rectal examination. As the applicant refused to be examined, no rectal examination was performed. 7. On 30 May 1999 before being released from custody, the applicant was taken to the Tokat Maternal Hospital for a gynaecological and rectal examination. As she did not give her consent, the doctors did not perform the examinations. Subsequently, she was taken to the Tokat State Hospital, where she was examined by a doctor. According to the doctor’s report, no signs of ill-treatment were observed on the applicant’s body. 8. On 30 May 1999 the applicant was brought before the Tokat public prosecutor. Before the public prosecutor, she denied the allegations against her and maintained that her police statement, dated 29 May 1999, had been taken under duress. She stated that she had been hosed with cold water, subjected to electric shocks and Palestinian hanging. 9. The same day the applicant was further brought before the investigating judge at the Tokat Magistrate’s Court where she repeated her statement taken by the prosecutor. The investigating judge decided to place her in detention on remand on account of the evidence in the file and the nature of the offences against her. 10. On 31 May 1999 the Tokat public prosecutor declined jurisdiction and transferred the case to the public prosecutor at the Ankara State Security Court. 11. In an indictment dated 15 June 1999, the Ankara State Security Court Public Prosecutor initiated criminal proceedings against the applicant and accused her of being a member of an illegal organisation. 12. On 12 August 1999 the applicant sent a letter to the court and retracted her statement made to the police, alleging that it was taken under duress. In this letter, she explained in detail the various forms of ill-treatments she had been allegedly subjected to in custody. In particular, she maintained that during her police custody she had been stripped naked, threatened with rape, beaten, hosed with cold water, subjected to electric shocks and hung from her arms. 13. On 11 July 2000 the Ankara State Security Court found that the applicant had been continuously working for the said illegal organisation. It therefore found the applicant guilty as charged under Article 168 of the Criminal Code and sentenced her to twelve years six months’ imprisonment. 14. On 4 April 2001 the applicant submitted her appeal petition to the Court of Cassation. While challenging the decision of the first-instance court, she particularly referred to her ill-treatment under custody. She also stated that she had been taken to the hospital on two occasions during her police custody to undergo a gynaecological examination. She alleged that this treatment constituted degrading treatment. 15. On 25 April 2001 the Court of Cassation, upholding the Ankara State Security Court’s reasoning and assessment of evidence, rejected the applicant’s appeal. | 1 |
dev | 001-67019 | ENG | SVK | ADMISSIBILITY | 2,004 | SULVA v. SLOVAKIA | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Milan Šulva, is a Slovakian national, who was born in 1953 and lives in Bratislava. He is represented before the Court by Ms I. Abelovská, a lawyer practising in Bratislava. The applicant acted as receiver in bankruptcy of a State-owned company. On 12 January 1999 he submitted his final report to the Bratislava Regional Court for approval. It indicated the sum obtained from the sale of the company's assets and also the receiver's costs and his remuneration. The bankrupt company and its creditors filed no objections to the report. On 28 April 1999 the Regional Court heard the applicant and a representative of the bankrupt company. The latter stated that he did not object to the receiver's report subject to its conformity with the relevant law. On the same day the Regional Court delivered a decision in which it approved of the report with a modification concerning the applicant's remuneration. The decision stated that the applicant had not determined the sum due to him in accordance with Sections 6(a) and 7(1) of Regulation No. 493/1991 as amended. In the Regional Court's view, the applicant had mistakenly included in the sum obtained through realisation of the bankrupt's assets (which serves as the first component for determination of a receiver's remuneration) the sum of 591,451.65 Slovakian korunas (SKK) which the company in bankruptcy had in its bank account at the moment of adjudication of bankruptcy. The receiver calculated the second part of his remuneration (based on the sum reserved for satisfying the creditors' claims obtained as a result of receiver's activities) in that he had repeatedly included in it the sum obtained as a result of realisation of the assets after deduction of claims relating to those assets, of sums to which the bankrupt's employees had been entitled as well as of other items. The Regional Court therefore modified the calculation of remuneration submitted by the applicant in that it deducted SKK 591,451.65 from the sum representing the income from realising the bankrupt's assets and administration of its property. The remaining sum, which included SKK 361,256,579.04 (obtained as a result of realising the assets) and SKK 44,066,825, 23 (sum reserved for satisfying the creditors' claims obtained in the course of the administration in bankruptcy), served as the basis for determining the receiver's remuneration. Considering that the administration in bankruptcy carried out by the applicant had been complex, the Regional Court increased the remuneration by 20 per cent as the relevant law permitted. On 16 June 1999 the applicant appealed. He submitted reasons for the appeal on 7 July 1999. He argued that the Regional Court had disregarded the fact that no objections had been filed to his report and concluded that the court had exceeded its power in that it had modified a part thereof. He further submitted that the Regional Court had incorrectly interpreted Section 6(a) of Regulation No. 493/1991, as amended by Regulation No. 358/1996, in that it had excluded from the second component of his remuneration the sum obtained as a result of realisation of the bankrupt's property and that the sum which the bankrupt had had in its account at the moment of adjudication of bankruptcy had not been taken into consideration when determining the sum on the basis of which his remuneration was to be calculated. In support of his argument the applicant referred to two decisions delivered by the Banská Bystrica Regional Court in 1998 and in 1999. He also referred to doctrinal interpretation of the relevant law published in the Slovak Bar Bulletin in 1998 and in a law review. On 23 November 1999 the Supreme Court upheld the Regional Court's decision concerning the sum which was due to the applicant. In its judgment the Supreme Court summed up the reasoning of the first instance court and the arguments put forward in the appeal without mentioning, however, the above two Banská Bystrica Regional Court's decisions of 1998 and 1999 relied upon by the applicant. The reasons for the Supreme Court's decision read as follows: “[Under Section 6(a) of Regulation No. 493/1991, as amended,] a bankruptcy receiver's remuneration is composed of the addition of remuneration determined on the basis of the sum obtained as a result of realisation of the bankrupt's property after adjudication of bankruptcy and of remuneration determined on the basis of the sum which is reserved for satisfying the creditors' claims and which the receiver obtained as a result of other activities than realisation of assets, such as filing claims with courts or proposing enforcement of decisions etc. In the present case the first instance court [in accordance with the relevant provisions of the Bankruptcy Act] had before it the final report on realisation of assets and on remuneration and expenses and examined it at the hearing held on 28 April 1999 in the course of which the bankrupt's representative stated that he did not object to the receiver's remuneration subject to its second component being in accordance with the law. The first instance court ... came to the conclusion that the remuneration had not been calculated in accordance with Section 6 of Regulation No. 493/1991, as amended by Regulation No. 358/1996, and modified the remuneration due. The appellate court also reached the conclusion that the sum of SKK 591,451.65 which had been deposited in the bankrupt's bank account prior to adjudication of bankruptcy could not serve as the basis for determining the first part of the receiver's remuneration as that sum had not been obtained as a result of realisation of the bankrupt's assets. The second part of remuneration should be determined on the basis of the sum obtained by the receiver through other activities than realising the assets. In the case under consideration the approved final report indicates that other incomes have amounted to SKK 44,066,825.23. The incomes from realising the assets and from other activities total SKK 405,323,404.27 and this sum serves as the basis for determining the receiver's remuneration under Section 7 of Regulation No. 493/1991, as amended by Regulation No. 358/1996... The first instance court decided correctly when concluding that the receiver's remuneration amounted to the sum mentioned.” The Supreme Court's decision was subsequently published in the Collection of opinions of the Supreme Court and of courts' decisions under No. 51/2000. The conclusion was emphasised according to which a sum which a debtor had in a bank account prior to adjudication of bankruptcy is not to be included in the sum on the basis of which a receiver's remuneration is determined as it was not obtained as a result of realisation of the bankrupt's assets. Regulation No. 493/1991, as amended by Regulation No. 358/1996, governs the implementation of certain provisions of the Bankruptcy Act of 1991. Section 6(a) provides that the basis for determining the remuneration of a receiver in bankruptcy is composed of the sum obtained through realisation of the bankrupt's assets and of the sum reserved for satisfying the creditors' claims which the receiver obtained in the course of carrying out his or her duties. Under Section 7(1) of Regulation No. 493/1991, as amended, a receiver in bankruptcy is entitled to remuneration equal to 10 per cent of the sum mentioned in Section 6(a), the minimum remuneration being SKK 50,000. | 0 |
dev | 001-61069 | ENG | ESP | CHAMBER | 2,003 | CASE OF IGLESIAS GIL AND A.U.I. v. SPAIN | 1 | Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 9. The first applicant, María Iglesias Gil, was born in 1961 and lives in Vigo. She is the mother of the second applicant, A.U.I., who was born in 1995. 10. On 8 September 1989 the first applicant married A.U.A. On 3 June 1994 the couple divorced. Their son A.U.I. was born on 7 December 1995 and A.U.A. acknowledged paternity. In a decision of 20 December 1996, the Vigo Family Court awarded the first applicant custody of A.U.I., and the father access. On 1 February 1997 A.U.A. abducted his son during an access visit and left Spain with him. After passing through France and Belgium, he travelled with the child by air to the United States. 11. The first applicant lodged a criminal complaint with Vigo investigating judge no. 5 alleging child abduction and applied to be joined to the proceedings as a civil party. On 4 February 1997 the investigating judge made orders for a nationwide search to be made for A.U.A. and for the child’s immediate return to its mother. Subsequently, the first applicant also made criminal complaints against various members of A.U.A.’s family who, she said, had assisted in her son’s abduction. 12. During the investigation, the first applicant requested Vigo investigating judge no. 5 to monitor calls on A.U.A.’s mobile telephone and to interview members of A.U.A.’s family. In a decision of 19 February 1997, the investigating judge turned down both requests, the former on the ground that there was no evidence that the mobile telephone number that had been given was A.U.A.’s and the latter because the first applicant had not given precise details of the questions she wished to be put to her former husband’s relatives. The first applicant also asked the investigating judge for a search to be carried out at the registered office of a company belonging to A.U.A. that was responsible for administering his property in his absence, and for the examination of a vehicle he had used to leave Spain. The judge again refused. 13. The first applicant asked the judge to issue an international search and arrest warrant against A.U.A., but in an order of 29 May 1997, he declined, stating: “... 2. As regards the international search and arrest warrant, the offences of coercion and extortion have not been made out. It is debatable whether there has been an offence of criminal contempt, since it has not been proved that the person concerned was ordered to comply with the judgment of the family court and warned that he was liable to commit this offence. In addition, since this offence (Article 556 of the Criminal Code) only carries a prison sentence of between six months and one year, an international search and arrest warrant is not justified, [especially] as the conduct complained of appears to come within Article 622 of the Criminal Code, which characterises it as a minor offence. ... 4. Furthermore, it should be noted that the requested procedural steps are neither lawful, nor adapted to the aim pursued, and must therefore be refused pursuant to Article 311 of the Code of Criminal Procedure.” 14. In a decision of 5 June 1997, investigating judge no. 5 turned down further requests by the first applicant for investigative steps to be taken as a result of her former husband’s contempt and failure to comply with the judgment of the family court on the following grounds: “... 2. Investigative steps are taken in order to establish whether an offence has been committed. The investigation is brought to an end by a judicial decision, not at the request of a party (Article 785 Code of Criminal Procedure). 3. The inquiries made to date do not prove that A.U.A. failed to return his son to his mother at the end of the period for which he was entitled to have him to stay. ... 6. A wanted notice has been issued for A.U.A. nationally. As soon as he has been traced, final provision 19 of Institutional Law no. 1/1996 of 15 January 1996 on the legal protection of minors can be applied.” 15. In an order of 25 May 1998, the investigating judge also examined whether a person could be prosecuted for the abduction of a minor for whom he had joint parental responsibility. He found that this was not possible under the case-law, as the only offences that could be committed in such circumstances were criminal contempt and extortion. In a further order dated 1 July 1998 the investigating judge reiterated that no international search and arrest warrant could be issued for the suspected offence of criminal contempt, for the following reasons: “... As regards an international search and arrest warrant against A.U.A., this issue was resolved by the Pontevedra Audiencia in its decision of 23 September 1997. No new facts have emerged since then that would justify reclassifying the offence. Under no circumstances can it amount to ‘false imprisonment’, as the judgment of 5 July 1993 on the abduction of minors makes clear. In that judgment, the court held: ‘The fact that a father has taken his minor child with him solely in order to enjoy its company cannot amount to the offence of child abduction’ ... Lastly, as to the suspected offence of criminal contempt, no international search and arrest warrant can be issued as it is not an offence that comes within the extradition treaties. Consequently, Interpol would not act on such a warrant, as it would not be valid in law.” 16. An appeal by the first applicant was dismissed by the Pontevedra Audiencia Provincial on 17 November 1998. 17. The first applicant sought amparo relief under Articles 24 (right to a fair hearing), 15 (right to life and mental and physical integrity) and 17 (right to liberty and security) of the Constitution, and the United Nations Convention on the Rights of the Child of 1989. In a decision of 2 June 1999, the Constitutional Court dismissed her appeal as manifestly ill-founded, holding that she had not stated why she disagreed with the reasoned decisions of the lower courts. 18. At the end of the investigation, on 3 July 1998, Vigo investigating judge no. 5 issued a provisional discharge order dismissing the charges against A.U.A. However, he renewed the orders for a nationwide search for A.U.A. and the order freezing his assets. He also made a final order dismissing the charges against the members of A.U.A.’s family who had been implicated by the first applicant. The reason given by the judge for making the provisional discharge order in respect of A.U.A. was that the latter’s absence from Spain had prevented his being questioned or formally charged in accordance with Article 791 § 4 of the Code of Criminal Procedure. An appeal by the first applicant was dismissed by the Pontevedra Audiencia Provincial on 9 November 1998. 19. The first applicant lodged an amparo appeal against those decisions with the Constitutional Court, in which she alleged violations of Article 17 (right to liberty and security), taken together with Articles 18 (rights to private life and family privacy), 24 (right to a fair hearing) and 39 (social, economic and legal protection of the family and children) of the Constitution. She also relied on Articles 5 and 8 of the Convention. In her appeal, she complained in particular of the investigating judge’s systematic refusal to issue an international search warrant for her child, a refusal which, she said, was in breach of the positive duty to protect children and families. She also alleged a violation of Article 11 § 1 of the Convention on the Rights of the Child of 1989, which requires States to take measures to combat the illicit transfer and non-return of children abroad. In her submission, by refusing to take any investigative steps, the investigating judge had directly infringed both her and her son’s right to private and family life, and her right to judicial protection, as guaranteed by Article 24 the Constitution and Article 6 of the Convention. 20. In a decision of 17 June 1999, the Constitutional Court dismissed the amparo appeal as unfounded, holding that the first applicant had confined herself to contesting the decisions of the criminal courts which, in reasoned and well-founded decisions, had decided to make a provisional discharge order in respect of her criminal complaint of child abduction, while renewing certain preventive measures. 21. In connection with an appeal by the first applicant to the Pontevedra Audiencia Provincial against one of his decisions, investigating judge no. 5 said in a report to the Audiencia Provincial on 5 September 1997: “... The purpose of criminal proceedings is to prosecute the offence and, if appropriate, to punish the perpetrators. However, an investigating judge cannot, under any circumstances, allow himself to be manipulated by a woman driven by jealousy or hatred against her former husband’s family and take a series of procedural measures that serve no purpose other than to inconvenience third parties uninvolved in the proceedings. In the present case, all that has been proved so far is that A.U.A. did not return his son A.U.I. to his mother at the end of the period he was allowed by the family court.” 22. An application for an order requiring investigating judge no. 5 to stand down was dismissed in a decision of 20 November 1997. In a decision of 22 February 1999, an application for the proceedings to be declared null and void was likewise dismissed. 23. In a judgment of 12 February 1999, the Vigo Family Court withdrew parental responsibility from A.U.A. and awarded the first applicant full parental responsibility. It gave the following reasons for its decision: “... Having considered the evidence, the Court has decided to grant the applicant’s application. ... the case file shows that, after continually failing to comply with the access arrangements (see this Court’s decision of 20 December 1996), the respondent did not return the child to its mother at the end of the period stipulated in the decision of 20 December 1996. Furthermore, since 1 February 1997, the whereabouts of both father and child have been unknown, which means that the child has been removed from the applicant’s custody in breach of a court order. Such conduct can only be described as very serious, as it has entailed the cruel and abrupt removal of the child from the family background in which it was being happily brought up, thereby depriving it both now and then of its mother’s love and protection ... at the most tender of ages, with the serious harm which that entails ... Thus, by putting his own interests before those of his child, [A.U.A.] has acted in a manner that is seriously detrimental to the child’s welfare ...” 24. According to a psychologist’s report produced by the first applicant in April 2000, A.U.A. first made contact with her through a telephone call in which he imposed various conditions for the child’s return, threatened her and used the prospect of her not seeing her son again as blackmail. On 12 June 2000 the first applicant lodged a criminal complaint against A.U.A. alleging threatening behaviour and coercion. On 30 September 2000 Vigo investigating judge no. 6 made a provisional discharge order. On an appeal by the first applicant, that order was quashed by the Pontevedra Audiencia Provincial in a decision of 15 May 2001. 25. On 18 April 2000 the first applicant saw her son for the first time since his abduction in February 1997. On 12 May 2000 A.U.A. voluntarily appeared before the investigating judge, who, after hearing his representations, decided not to order his detention pending trial. Finally, on 18 June 2000 the first applicant was able to recover her child with police assistance on A.U.A.’s return to Vigo with the child. She said that for a time she was forced to go into hiding with her son in a shelter for women. 26. On 14 July 2000 the Family Court granted A.U.A. access. As he was prevented from exercising that right, A.U.A. lodged a criminal complaint with the Vigo investigating judge against the first applicant and her parents alleging aggravated contempt. 27. The relevant provisions of the Constitution read as follows: “Provisions relating to the fundamental rights and the freedoms recognised by the Constitution shall be construed in accordance with the Universal Declaration of Human Rights and international treaties and agreements on human rights that have been ratified by Spain.” “1. Everyone’s right to honour and to private and family life ... shall be protected. ...” “1. Everyone shall have the right to effective protection by the judges and courts in the exercise of his or her rights and legitimate interests; in no circumstances may there be any denial of defence rights. ...” “Children shall enjoy the protection provided for in the international agreements safeguarding their rights.” “Once officially published in Spain, international treaties that have been validly concluded shall be part of the domestic legal order. ...” 28. The relevant provisions of the Convention on the Rights of the Child [Spain ratified this instrument on 6 December 1990. The United States signed it on 16 February 1995, but have not yet ratified it] provide as follows: “1. States Parties shall take measures to combat the illicit transfer and non-return of children abroad. 2. To this end, States Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements.” 29. The relevant provisions of this convention [Spain ratified this instrument on 16 June 1987 and the United States on 29 April 1988] provide as follows: “The objects of the present Convention are: (a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” “Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.” “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.” “A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities. ...” “Central Authorities shall cooperate with each other and promote cooperation amongst the competent authorities in their respective States 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: (a) to discover the whereabouts of a child who has been wrongfully removed or retained; (b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures; (c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues; (d) to exchange, where desirable, information relating to the social background of the child; (e) to provide information of a general character as to the law of their State in connection with the application of the Convention; (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 organising or securing the effective exercise of rights of access; (g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers; (h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child; (i) to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.” “Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child. ...” “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. ...” “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.” 30. The relevant provisions of this Law provide: “Minors shall enjoy the rights afforded them by the Constitution and international treaties ratified by Spain, in particular, the United Nations Convention on the Rights of the Child, and the other rights guaranteed by domestic legislation ... This law, its implementing provisions and other statutory provisions concerning minors shall be construed in accordance with the international treaties ratified by Spain and, in particular, the Convention on the Rights of the Child of 20 November 1989. The public authorities shall guarantee compliance with the rights of minors and shall ensure their decisions comply with this law and the aforementioned international instrument.” 31. Pursuant to final provision 13 of the aforementioned Law on the legal protection of minors, a second paragraph was added to Article 216 of the Civil Code, which provides as follows: “The functions of guardianship constitute a duty. They shall be performed for the benefit of the person for whom the guardian has been appointed and subject to the protection of the judicial authorities. The measures and action contemplated by Article 158 of this Code may also be ordered by the court, on its own initiative or on the application of any interested party, in all cases of de facto or de jure guardianship or custody of minors, ... if their interest so requires.” Article 158 of the Civil Code provides as follows: “The court shall, on its own initiative, or on an application by the child, a parent or the public prosecutor, order the following measures: ... (2) appropriate action on a transfer of custody to avoid the unsettling the child in a way that is harmful; (3) in general, any other action it considers expedient to remove the child from danger or prevent it coming to harm. All such measures may be ordered in any civil or criminal proceedings ...” 32. The provisions read as follows: “Responsibility for dependent minors shall be vested in their mother and father. Parental responsibility shall always be exercised in the child’s interest and in accordance with its personality; it shall include the following powers and duties: (1) to provide the child with protection, company, food, an upbringing and proper guidance; (2) to represent the child and administer its property; ... Parents may seek judicial assistance when exercising their parental responsibility. ...” “Parents in whom parental responsibility is vested shall represent their dependent minor children in legal matters. ...” 33. In general, the Spanish courts have refused to characterise a failure by a person with parental responsibility for a minor to return the child as false imprisonment or kidnapping, offences under Articles 163 to 165 of the Criminal Code carrying between four and ten years’ imprisonment. Under the case-law, a person guilty of such conduct may only be prosecuted for criminal contempt or extortion under Article 556 of the Criminal Code, for which the punishment is six months’ to one year’s imprisonment. 34. Institutional Law no. 9/2002 of 10 December 2002 amended the provisions of the Criminal and Civil Codes dealing with the abduction of minors. 35. As regards the position under the criminal law, the explanatory memorandum to the Law indicated that a clearly worded provision, creating a separate offence from the generic offence of criminal contempt, had become necessary when the person guilty of removing or failing to return the minor was one of the parents and custody of the minor had been lawfully granted to the other parent or to another person or institution in the child’s interest. 36. The Law inserted a new Article 225 bis in the Criminal Code, worded as follows: “1. A parent who, without any justification, abducts his or her minor child shall be liable on conviction to between two and four years’ imprisonment and shall forfeit his or her parental responsibility for between four and ten years. 2. For the purposes of this Article, the following acts shall be deemed to constitute abduction: (i) transferring a minor from his place of residence without the consent of the parent with whom he or she habitually resides or the persons to whom or institutions to which custody of the minor has been granted; (ii) failing to return a minor in material breach of an obligation arising under a judicial or administrative decision. 3. If the minor is removed from Spain or a condition is imposed for its return, the sentence shall be in the upper half of the range set out in paragraph 1. ... 5. The penalties stated in this Article shall also apply to any person from whom the minor is descended or any relative of the parent by blood or marriage up to the second degree who has committed the aforementioned acts.” | 1 |
dev | 001-108506 | ENG | UKR | CHAMBER | 2,012 | CASE OF IGLIN v. UKRAINE | 3 | Remainder inadmissible;No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial) (Article 6-3-b - Preparation of defence;Article 6 - Right to a fair trial);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy | 6. The applicant was born in 1981 and is currently serving a life sentence in Izyaslav. 7. On 21 February 2002 the applicant was convicted of robbery and other crimes, sentenced to 13 years’ imprisonment and taken to the Kryvyy Rig correctional colony to serve his sentence. 8. While the applicant was serving his sentence, new criminal proceedings were instituted in which charges of criminal association membership, murder and other violent crimes were advanced against him. On an unspecified date N. N. was appointed as the applicant’s legal-aid lawyer. Subsequently A. K., another legal-aid lawyer, replaced him. 9. On an unspecified date the applicant, along with several other individuals, was committed for trial to the Dnipropetrovsk Regional Court of Appeal (hereafter “the Regional Court”), acting as a first-instance court. The charges against him included belonging to a criminal association, as a member of which he had taken part in three murders with a view to personal gain; several robberies; unlawful handling of arms; and unlawful taking of a vehicle. 10. During the trial the applicant confessed to having participated in the robberies and the other crimes attributed to him. However, he argued that his personal role in the murders had been negligible, and that he had not had any intention of profiting personally from one of the three murders. 11. The applicant also complained to the court that he had been tortured by the investigative authorities during the pre-trial investigation. The court ordered the Dnipropetrovsk Prosecutors’ Office to conduct an inquiry into the applicant’s complaint, which found that there was no case of illtreatment to answer. 12. On 6 January 2005 the applicant was convicted as charged and sentenced to life imprisonment. 13. The applicant and A. K. (his legal-aid lawyer) drafted separate cassation appeals. The applicant’s lawyer challenged the assessment of the facts and application of the law in respect of several points and requested a milder sentence. 14. The applicant, for his own part, complained, primarily, about the severity of his sentence, of ill-treatment by the investigative authorities, and of the court’s failure to question Z., another alleged criminal association member, who had been on a wanted list. In his appeal, the applicant also stated that he wanted to further substantiate his arguments once he had had a chance to study the case file. 15. On 23 and 24 March and 4 and 5 April 2005 the applicant was brought into the Regional Court’s offices to study the case file in order to prepare his cassation appeal. He signed affidavits asserting that he had read the entire case file. 16. On 14 June 2005 the Supreme Court of Ukraine adjourned consideration of the case until 13 September 2005 in order to ensure the applicant’s and his co-defendants’ presence at the proceedings. 17. On 28 June 2005 the applicant complained to the Supreme Court that he had not been properly familiarised with the case-file materials. He mentioned, in particular, that he had only been brought to the court’s records office to study the file on four occasions. He further noted that he had remained in handcuffs at all times and that this had not only been physically painful, but also detrimental to his ability to take notes. Lastly, the applicant noted that he had been coerced into signing the affidavits that stated that he had properly studied the file. The applicant asked the Supreme Court to ensure that he be provided with an opportunity to study the case file in his lawyer’s presence. 18. On 13 September 2005 the applicant asked the Supreme Court to adjourn the case, regard being had to the failure of his legal-aid lawyer to appear. He further asked the Supreme Court to oblige A.K. to perform her professional duties, to admit L.L., his mother, as his lay defence representative, and to provide him with an opportunity to familiarise himself with the case file in order to prepare his defence. 19. On the same date the Supreme Court adjourned the hearing. It noted that the applicant’s request for additional familiarisation with the case file was ill-founded, as he had signed affidavits stating that he had properly studied it. On the other hand, the Supreme Court found the applicant’s concern about his lawyer’s absence substantiated and ruled as follows: “to give [the applicant] the opportunity to appoint a lawyer or a defence representative to participate in the cassation proceedings in order to represent his interests. The administration of the SIZO should assist [the applicant] in establishing a connection with his defence representative or persons who can appoint a defence representative”. 20. On 15 September 2005 the applicant further complained to the Supreme Court that he had not been familiarised with the appeals brought by other parties to the proceedings. 21. On 4 October 2005 the Supreme Court held a hearing in the applicant’s case in the absence of his lawyer. At the beginning of the hearing, the applicant requested that the Supreme Court act on his previous requests. The prosecutor opined that the applicant had had sufficient opportunity to familiarise himself with the case file. The court rejected the applicant’s requests as unfounded and upheld the judgment of the firstinstance court. 22. On 12 June 2006 the Court’s Registry asked the applicant to provide certified copies of his appeals and his procedural requests addressed to the Regional and the Supreme Courts. 23. On 29 June 2006 the applicant asked the Regional Court’s records office to provide him with the documents at issue in connection with the Registry’s request. 24. On 6 July 2006 the Regional Court rejected this request, referring to the lack of any obligation under national law to make copies of case file documents. 25. On 31 January 2007 L.L., the applicant’s mother, who was also acting as his representative in the Convention proceedings at the material time, lodged a new request with the Regional Court on his behalf. In particular, referring to Article 34 of the Convention, she requested that the Regional Court either mail certified copies of the documents requested by the Court’s Registry to her home address or inform her in writing where they could be delivered to her. 26. On 9 February 2007 the Regional Court returned her request without providing the copies sought, noting that “the Code of Criminal Procedure in force does not oblige the court to prepare copies of materials from a criminal case file”. 27. From 27 January 2004 until 4 August 2006, with short interruptions, the applicant was detained in Dnipropetrovsk pre-trial detention facility no. 3 (“SIZO no. 3”). 28. According to the applicant, he had been detained with another individual in a cell measuring 1.90 by 3.70 square metres for most of the day. The applicant’s bunk, which had measured 1.70 metres by 50 centimetres, had had raised bars at its ends. Given that the applicant was 1.84 m tall, he had been unable to stretch out fully and get adequate sleep. The cell had been located in the basement, scarcely letting in daylight or fresh air, while the electric light had been dim and there had not been any artificial ventilation. The windows had had grates on them, which had further blocked natural light from coming in through the window. Moreover, they had been blocked by the upper bunk of the bed. The air had been damp and ventilation had been insufficient. The toilet had not been separated from the living quarters. It had smelled of excrement and had frequently been flooded. The applicant had made a cover for the toilet (a “grusha”) to prevent unpleasant smells. However, it had been confiscated by the prison authorities. They had likewise routinely confiscated a number of his other belongings and appliances for no apparent reason, including food, a TV antenna and a string, without which it had not been possible to open the window. Consequently, the applicant’s access to information from the outside world had been severely limited and he had been unable to open the window to disperse the smell from the toilet. The food had been meagre and had mostly consisted of wheat cereal and bread. The detainees had only been able to wash themselves, cut their nails and shave once a week in a special bathing facility. All of the detainees had shared the same pair of scissors. They had remained handcuffed by the hand to the wall while they had been cutting their nails and shaving, which had felt degrading. 29. On 11 November 2005 the applicant’s cellmate had hit him on the head with a metal mug while he was asleep, causing an open wound. Notwithstanding the applicant’s numerous requests for medical assistance on account of this incident, he had only been provided with oxygenated water and a bandage. The injury had resulted in the applicant having frequent headaches, vertigo, vomiting, and pus and blood dripping from one ear, which he had treated himself with his own urine. 30. On 28 February 2006 the applicant had been severely beaten by SIZO guards for allegedly organising inter-cell communication. In spite of his repeated requests for medical assistance on account of the injuries sustained as a result of the beating, the applicant had merely been given painkillers. 33. The Government submitted that the conditions of the applicant’s detention in SIZO no. 3 had been adequate. They presented a certificate issued by the SIZO administration dated February 2010 attesting that, according to their inspection on that date, there had been at least 3.5 square metres of available space per detainee in each cell. The dimensions of bunks used in the SIZO had been 185 centimetres by 70 centimetres. The basement floor cells, where the life prisoners had been held, had had windows measuring 110 centimetres by 100 centimetres, which size had afforded sufficient access to daylight. In the evenings the cells had been lit by 100 watt lamps, which had enabled the detainees to read and write without hurting their eyes. Each window had had a special ventilation pane, which had been able to be opened to air the cells. In addition, an electric ventilator in the corridor had ensured artificial ventilation of the cells. The cells had been fitted with radiators to ensure a stable temperature of between 18 and 20 degrees Celsius. Each cell had been equipped with two metal bunks, a chair, a shelf for personal belongings, a table, two small cupboards which could also be used as stools for sitting, a clothes hanger, a tap with a sink, a mirror, and a toilet. The toilets had had bent pipes to prevent unpleasant odours and had been separated from the living area by fixed partitions. 34. The Government further submitted (without providing any supporting documents) that, as regards sanitary arrangements, the SIZO’s detainees had had weekly access to bathing facilities, where they had also been provided with razors and scissors. Disinfectant had been used on a regular basis to clean the cells and other premises. Twice a year (in the spring and the autumn) comprehensive measures against rats had been implemented and the entire SIZO facility had been disinfected. The detainees had been provided with meals three times a day, freshly cooked by the SIZO’s cooks. Food had been varied and in conformity with applicable nutrition regulations. 35. No instances of seizure of or damage to the applicant’s belongings by the SIZO administration had been recorded. 36. As regards medical assistance, on 5 December 2005 the applicant had been diagnosed as suffering from an acute ear infection. On 6 February 2006 he had consulted an otolaryngologist and had been diagnosed with a fistula in one of his ear canals. Between 29 January and 7 February 2007 the applicant had received in-patient treatment for pulled leg muscles. In February 2007, having been transferred to a correctional colony to serve his sentence, the applicant had undergone an operation to extract a foreign body from his left ear canal. 37. As regards the incident of 28 February 2006, the applicant had never complained about it before to the domestic authorities. There was no evidence that this incident had ever taken place. 38. Relevant provisions of the Code of Criminal Procedure as worded at the material time read as follows: ... A defence representative shall be appointed in the event: ... (2) that ... the defendant wishes to engage a defence representative, but lacking funds or in view of other objective circumstances is unable to do so. ... ... if it is impossible to obtain the presence of the defence representative selected by the ... defendant within seventy-two hours ... the court may propose that the ... defendant appoint another defence representative. If this defence representative is unable to appear in the case within twenty-four hours and also in the event that ... the defendant has not engaged another defence representative within this timeframe ... the ... judge by a ruling or the court by a decision shall appoint a defence representative.” “To support or disprove arguments presented in an appeal, the persons who advanced them may submit documents to the cassation court which were not in the case file...” “The cassation court shall review the lawfulness and reasonableness of the court judgment... or part [thereof] which was appealed. The cassation court may exceed the scope of a cassation claim, if doing so would not prejudice the situation of the convicted or acquitted person...” “Grounds for annulment or modification of the judgment, decision or ruling shall be: (1) substantial breach of the law of criminal procedure; (2) incorrect application of the criminal law; (3) the selected penalty being disproportionate to the gravity of the offence and the personality of the convicted person. A judgment of the court of appeal taken by it as a first-instance court may be annulled or modified [on the basis of] bias, incompleteness of any inquiry, pre-trial or trial investigation or inconsistency in the court’...” 39. Relevant Council of Europe and other materials establishing standards for conditions of detention and international reports concerning the conditions of detention in Ukraine can be found in the judgment in the case of Davydov and Others v. Ukraine, nos. 17674/02 and 39081/02, §§ 101-108, 1 July 2010. | 1 |
dev | 001-105499 | ENG | TUR | CHAMBER | 2,011 | CASE OF SAÇILIK AND OTHERS v. TURKEY | 3 | Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award;Just satisfaction reserved (one applicant) | András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi | 6. On 5 July 2000 the applicants were in detention in Burdur Prison when a large-scale security operation was conducted there by 415 members of the security forces consisting mainly of gendarmes and soldiers. As the remaining facts of the case are in dispute between the parties, they will be set out separately. The facts as presented by the applicants are set out in Section B below (paragraphs 7-12). The Government’s submissions concerning the facts are summarised in Section C below (paragraphs 1321). The documentary evidence submitted by the applicants and the Government is summarised in Section D (paragraphs 2260). 7. On 4 April 2000 a number of remand prisoners in Burdur Prison were beaten by gendarmes on their way back from a court hearing. On 4 July 2000 eleven detainees, including nine of the applicants, informed the prison administration that, unless steps were taken to guarantee their safety, they would not be appearing at a hearing in the Burdur Assize Court scheduled for the following day. Neither the prison authorities nor the prosecutors responded to their calls. 8. At around 8.30 a.m. on 5 July 2000, members of the security forces arrived at the prison in large numbers. Using the furniture in their dormitories the inmates unsuccessfully tried to block the doors to stop the soldiers from coming in. The soldiers locked the windows to the prison cells, set fire to the cell doors and tried to confine the inmates in one part of the prison, measuring 25-30 square metres. The applicants Yunis Aydemir and Cemil Aksu suffered burns in the fire. When the inmates were confined in the same 25-30 square metres the soldiers used tear gas and various other chemical gases on them. 9. A hole was opened in the walls of this room with a digger. When the digger went through the hole and into the room the applicant Mr Saçılık waved his arm at the operator of the machinery, trying to tell him to withdraw the digger. The operator saw Mr Saçılık but proceeded, tearing off Mr Saçılık’s left arm from above his elbow. The severed arm was not collected by the authorities with a view to preserving and reattaching it, but was left there in the rubble. It was later taken from the mouth of a stray dog which had snatched it from the rubble. 10. Furthermore, a gas bomb detonated nearby seriously damaged the applicant Şahin Geçit’s right hand and eardrum. 11. The soldiers then started beating the inmates, dragging them on the floor, sexually assaulting female detainees and threatening them with rape. The detainees were then handcuffed, with their hands behind their backs, and were kept in that position for a period of 15 hours. The beatings continued even after the detainees were handcuffed. The soldiers attempted to insert a truncheon and a fluorescent light stick into the anuses and vaginas of the applicants Azime Arzu Torun and Mürüvet Küçük and started raiding the detainees’ personal belongings. 12. The injured detainees, some with life-threatening injuries, were subsequently taken to hospital. However, it was too late for Veli Şaçılık’s arm to be stitched back on, so he permanently lost his arm. The health of a number of other applicants also worsened because of the delays. Moreover, the soldiers prevented some of the detainees from receiving medical assistance at the hospital and took them back to the prison before their treatment had been completed. 13. On 4 July 2000 eleven detainees, including nine of the applicants, refused to obey the prison authorities and attend a hearing at the Burdur Assize Court. The Burdur Gendarmerie Headquarters requested assistance from a number of other military headquarters in an operation to be carried out in the prison. 14. The applicants and a number of other detainees began rioting in the prison. At around 10.00 a.m. on 5 July 2000, members of the security forces entered the prison in order to restore safety and security. They warned the prisoners and asked them to stop rioting. Ten prisoners complied with the soldiers’ instructions, but the remaining ones, including the applicants, continued to riot. They barricaded themselves in, opened fire, set fire to the dormitories and corridors, attacked members of the security forces with hand-made harpoons and iron bars and threw various explosive and corrosive chemicals at them. Seventeen gendarmes were injured as a result of the attacks. 15. As soon as members of the security forces managed to pass the barricades, the prisoners moved to the next dormitory after setting fire to the one they had been in. At that point the soldiers opened holes in the ceilings of the dormitory where the prisoners had gathered, and threw in tear gas canisters with a view to stopping the riots and minimising further damage. 16. A total of two holes were opened. The applicant Veli Saçılık was injured when a machine was opening the holes. 17. At the end of the operation a search was carried out. A number of documents belonging to an illegal organisation, 81 iron bars, 25 wooden bars, 52 hand-made objects used for cutting and digging holes, two saws, 20 pairs of scissors and three hammers were found during the search. 18. Apart from the severe damage caused to the prison building, ten security force personnel, six prison guards, one civilian and sixteen prisoners were wounded during the operation. The sixteen wounded prisoners were taken to hospitals. When 45 other prisoners refused to go to hospital for medical checks, three doctors were taken to the prison to provide medical assistance to them. 19. Although the applicant Azime Arzu Torun alleged that she had been raped with a truncheon, the medical reports pertaining to her examination revealed that her hymen was intact. 20. In the course of the investigation prosecutors questioned the applicants and members of the security forces, and examined the medical reports. On 30 March 2005 the Burdur prosecutor concluded that the soldiers’ actions had become unavoidable as a result of the prisoners’ behaviour, and decided not to prosecute any members of the security forces. 21. The applicant Veli Saçılık successfully filed a civil suit for his injuries, claiming 100,000 Turkish liras (TRL) in respect of pecuniary damage and TRL 50,000 in respect of non-pecuniary damage. On 31 March 2005 the sum of TRL 244,150 (approximately 140,000 euros (EUR) at the time), which included accrued interest, was paid to Mr Saçılık. 22. The following information emerges from the documents submitted by the parties. 23. On 21 June 2000 the president of the Burdur Assize Court sent a letter to the Burdur prosecutor and stated that eleven inmates at the prison had failed to attend a hearing scheduled for that day. The president urged the prosecutor to ensure the inmates’ attendance at the next hearing scheduled for 5 July 2000, “if necessary by forceful means so that judicial functions could be performed and the authority of the State would not be undermined”. 24. In his letter of 4 July 2000 the governor of Burdur Prison informed the Burdur prosecutor’s office about the Burdur Assize Court president’s letter. In the opinion of the prison governor, force would need to be used to uphold the “State’s authority” but there was an insufficient number of prison guards at the prison to handle such an intervention. 25. On 4 July 2000 the Burdur public prosecutor asked the Burdur Gendarmerie Headquarters to ensure the attendance of the eleven detainees at the hearing, if necessary by forceful means. The same day the Burdur Gendarmerie Headquarters asked a number of other military headquarters, including the special forces at the Antalya and Konya Commando Headquarters, to assist them in an operation to be carried out in Burdur Prison the following day. 26. According to incident reports drawn up by soldiers on 5 July 2000, the soldiers went to the prison in the early hours and asked the eleven detainees to leave the prison and go to the hearing. When this request met with the inmates’ refusal, the soldiers entered the prison and saw that the inmates had barricaded themselves in their dormitories using their bunk-beds, tables, lockers and other furniture. When the inmates were all confined in one room, the walls of the room were demolished and the soldiers threw in gas canisters. However, the inmates covered their heads with wet fabrics to protect themselves from the effects of the gas, before proceeding to throw the gas canisters back at the soldiers. The inmates then started throwing cleaning products containing acid and bleach at the soldiers and hitting them with metal rods made from window bars. When the soldiers finally gained control of the prison, sixteen of their number had either been beaten up by the inmates or intoxicated by the tear gas. When the operation ended at around 10.00 p.m. the injured inmates were taken to hospitals. 27. The applicants were all examined by doctors on a number of occasions. Details of their injuries, as noted in the medical reports, are as follows: Veli Saçılık: Mr Saçılık was taken to hospital on 5 July 2000 and was discharged again on 27 July 2000. It was not possible to stitch his arm back on and his injury was deemed to be life-threatening by the doctors. His injury prevented him from working for 60 days. Hüseyin Tiraki: Examined by three doctors. Various injuries to the face, arms and legs. Unable to work for a period of between one and seven days. Halil Tiryaki: Examined by three doctors. Various injuries, some infected, and bruising on the torso, arms and legs, requiring a ten-day healing period. Unable to work for a period of between five and seven days. Yunis Aydemir: Examined by two doctors. Various injuries and bruising on the head and on the back of his body, legs and ankles. Unable to work for a period of between five and seven days. Yusuf Demir: Examined by one doctor. His injury prevented him from working for a period of two days. İbrahim Bozay: Examined by three doctors. Various injuries and bruising on the shoulders and arms. Unable to work for a period of between three and seven days. Hakan Baran: Examined by three doctors. Various injuries, some infected, and bruising on the shoulders and the back of the body, arms and legs. Unable to work for a period of between three and seven days. Kazım Ceylan: After the operation Mr Ceylan was taken to a hospital suffering from gas intoxication and his condition was deemed to be life-threatening by doctors who also observed various injuries and bruises on the left ear, head, arms and legs. Unable to work for a period of between two and seven days. Hüseyin Bulut: Examined by three doctors. Various injuries and bruises on the back of the body, ribs, arms and legs. Unable to work for ten days. Cemil Aksu: Examined by two doctors. Various injuries and bruises on the head and round the eyes and extensive injuries to the shoulders, the back of the body and the arms, wrists and fingers. Unable to work for a period of between seven and eight days. Necla Çomak: Ms Çomak was examined by two doctors. Various injuries and bruises on various parts of the body including the head and the eyes. Unable to work for a period of between five and seven days. Şahin Geçit: Examined by two doctors one of whom was an ear, nose and throat consultant. Various infected injuries on the right hand. Various injuries and bruises on the head, face, eyes, ears, shoulders, arms and legs. Perforated ear drum and hearing loss. Unable to work for a period of between ten and fifteen days. Hayrullah Kar: Examined by two doctors. Various injuries and bruises on the head and the right shoulder blade. Unable to work for a period of between seven and eight days. Mehmet Leylek: After the operation Mr Leylek was taken to a hospital suffering from gas intoxication and his condition was deemed to be life-threatening by doctors. He was discharged from the hospital the following day. The doctors also observed various injuries and bruises on the ribs, knees, legs and torso, which prevented him from working for a period of between two and seven days. Birsen Dermanlı: After the operation Ms Dermanlı was taken to a hospital suffering from gas intoxication and her condition was deemed to be life-threatening by doctors, who also observed extensive injuries and bruising on her face and legs. Unable to work for a period of between two and seven days. Veysel Yağan: Examined by two doctors. Extensive injuries and bruising on the back of the body, arms, hands, legs and feet. Unable to work for a period of seven days. Fikret Lüle: Examined by three doctors and taken into hospital for a head trauma. Various injuries and bruises around the eyes, nose, face, ears, lips, shoulders, arms and knees and a nose fracture. Unable to work for ten days. Ali Rıza Dermanlı: Examined by two doctors. Various injuries and bruises on the face, chest and back of the body, arms and legs. Unable to work for a period of between seven and thirteen days. Cavit Temürtürkan: Examined by three doctors. Extensive injuries and bruising on the head, face, back of the body and legs. Unable to work for a period of between five and seven days. Azime Arzu Torun: Examined by three doctors. Extensive injuries and bruising on the head, knees, lumbar region, sternum, arms and legs. On 10 July 2000 Ms Torun was also examined by a doctor in relation to her allegations of sexual attacks and it was established that her hymen was intact. Her various injuries rendered her unfit for work for a period of between five and seven days. Gönül Aslan: Examined by two doctors. Various injuries and bruises on the face, back of the body, lumbar region and legs. Unable to work for a period of between two and seven days. Barış Gönülşen: After the operation Mr Gönülşen was taken to a hospital suffering from gas intoxication and his condition was deemed to be life-threatening by doctors, who also observed extensive injuries and bruising on his head, ears, chest, back of his body, arms, legs and feet. His injuries prevented him from working for a period of between two and seven days. Hüsne Davran: Examined by three doctors, who observed various injuries and bruises on her back, arms, and legs, which prevented her from working for a period of between one and five days. Mürüvet Küçük: Examined by a doctor who observed various injuries and bruises on her head, eyes, neck, shoulders and legs. Her injuries rendered her unfit to work for a period of between five and twelve days. Emre Güneş: Examined by three doctors. Various injuries and bruises on the head, face, chest, back of the body, arms and legs. Unable to work for a period of between five and seven days. 28. On 6 and 7 July 2000 the applicants were questioned by public prosecutors. They told the prosecutors that they had been subjected to various forms of ill-treatment. 29. Between 8 July and 19 July 2000 the applicants submitted nineteen separate complaint petitions to prosecutors and asked for the security personnel responsible for their injuries to be prosecuted. 30. On 21 July 2000 lawyers representing the applicants, as well as twenty-nine other detainees, submitted a joint and detailed complaint to the office of the Burdur public prosecutor and asked for prosecutions to be brought against those responsible for the ill-treatment and injuries. 31. In his letter of 24 July 2000 the Burdur Governor Kaya Uyar informed the relevant ministerial authorities that the force used by the soldiers had remained within the permissible limits of the applicable legislation. The soldiers had been particularly cautious in not using their weapons and careful not to infringe the inmates’ human rights; they had never attacked the inmates and had not caused any injury to any of them. The inmates who had been intoxicated by the gas used by the soldiers, as well as Mr Saçılık, who had been “injured while throwing bricks at the driver of the digger”, had “promptly” been taken to hospital. In his letter the governor also stated that “20 of the 61 inmates had been taken to hospitals in ambulances after the operation had ended at around 9.30 p.m. and 10.00 p.m. and the remaining inmates had been held in the prison”. 32. On 2 August 2000 the soldiers who took part in the operation were questioned by an army officer. Between 4 and 10 August 2000 they were further questioned by prosecutors. They all denied having ill-treated the applicants, and maintained that respect for human rights had been paramount during the operation. A number of prison guards who had been on duty at the prison that day stated that they had not seen or heard anything. 33. In the meantime, on 7 August 2000 the applicant Azime Arzu Torun submitted a separate complaint to the Burdur prosecutor and gave details of the sexual assault to which she claimed she had been subjected during the operation. According to Ms Torun, the soldiers had forced a truncheon into her vagina and the doctor who examined her had refused to establish whether her hymen had been torn. She asked the prosecutor to refer her to a hospital specialising in post-traumatic stress disorders and to carry out an investigation “in compliance with the European Convention on Human Rights”. 34. On 7 August 2000 the Burdur gendarmerie commander Ali Erduran drew up his preliminary investigation report in which he concluded that the soldiers had not ill-treated any of the inmates. The inmates had made the allegations of ill-treatment in order to damage the reputation of the armed forces. 35. Acting on officer Erduran’s advice, on 8 August 2000 the Burdur Governor Kaya Uyar declined to grant the necessary authorisation to the prosecutors to investigate a number of gendarme officers. The Burdur Prosecutor Tahsin Uyav lodged an objection against that decision on 18 August 2000. 36. On 14 August 2000 Prosecutor Uyav asked for permission to prosecute three officers implicated in the allegations. 37. In his letter of 24 August 2000 Prosecutor Uyav informed the Ministry of Justice that “a number of inmates had been injured in the course of an operation which had been necessary to quell a large-scale riot against the prison administration”. In a similarly worded letter addressed to the Gendarmerie General Command in Ankara on 13 October 2000, Prosecutor Uyav stated that “during forceful resistance by terrorists, security forces had to use force and a number of security personnel and terror convicts were injured”. 38. On 1 November 2000 Prosecutor Uyav brought prosecutions against the applicants and a number of other inmates for “having caused a riot”. 39. The same day Prosecutor Uyav requested permission from the Burdur governor to investigate the actions of 404 members of the security forces who had taken part in the operation. The Burdur governor appointed his deputy Mr Azizoğlu to carry out a preliminary investigation 40. In its decision of 2 November 2000 the Antalya Regional Court upheld the prosecutor’s objection of 18 August 2000, and held that the preliminary investigation should have been conducted by the Ministry of the Interior. 41. In its decision of 8 January 2001 the Ministry of the Interior appointed gendarmerie colonel Adnan Kandemir to examine the allegations with a view to advising as to whether a prosecution should be brought against the soldiers. 42. In his report of 19 February 2001 Colonel Kandemir recommended the Ministry of the Interior to refuse the authorisation sought by the Burdur prosecutor to prosecute the 404 members of the security forces. It appears from this report that a total of 389 of the 404 security personnel had been questioned by Colonel Kandemir and they had all denied the allegations against them. Colonel Kandemir concluded that the operation had been a success, the uprising had been halted and the authority of the State had been restored. Other than their abstract allegations, there was no evidence to support the applicants’ “ill-intentioned allegations”. 43. Acting on Colonel Kandemir’s advice, on 23 February 2001 the Burdur governor declined the authorisation sought by the Burdur prosecutor. 44. On 27 March 2001 Burdur prosecutor Uyav lodged an objection against the Burdur governor’s decision of 23 February 2001. 45. In his decision of 11 October 2002 the Burdur governor refused to grant authorisation for the prosecution of a further eleven gendarme officers. 46. On 23 January 2003 Antalya Regional Administrative Court upheld the Burdur prosecutor’s objection and the file was forwarded to that prosecutor’s office for a judicial investigation to be opened. 47. In the course of the investigation the prosecutors questioned the applicants and examined the medical reports detailing their injuries. 48. On 12 January 2005 a colonel at the Gendarmerie General Headquarters in Ankara wrote to the Burdur public prosecutor informing him that exorbitant sums of compensation were being awarded to the inmates by administrative courts despite the absence of a court decision placing criminal responsibility on the administration and despite the fact that the operation in question had been conducted with a view to protecting the right to life and quelling riots staged by prisoners acting under orders from illegal organisations. The colonel added that there was a need for the investigation to be concluded as soon as possible so that it could be established whether or not the administration was at fault. He asked the prosecutor to provide him with information about the investigation. 49. In his decision of 30 March 2005 the Burdur public prosecutor decided not to prosecute any members of the security forces. The prosecutor noted that the driver of the digger which had severed Veli Saçılık’s arm had subsequently been tried for, and acquitted of, the offence of causing bodily injury by recklessness. The prosecutor also noted that a number of doctors and nurses working at the hospital where Mr Saçılık had been treated had also been tried for neglecting their duties, but had been acquitted. Criminal proceedings brought against the inmates for causing a riot, on the other hand, were still pending. 50. The prosecutor considered that the soldiers’ intervention had become unavoidable as a result of the actions of inmates who had refused to surrender but had instead gone on to set fire to the objects in their dormitories and to attack the soldiers with wooden sticks and iron bars. Veli Saçılık’s arm had been severed when he had tried to throw bricks at the soldiers through the hole in the prison wall opened by the digger. 51. The prosecutor observed that, according to the medical reports, all applicants had suffered various injuries, preventing them from working for different periods. Although Azime Arzu Torun had alleged that she had been raped with a truncheon, the medical reports showed that her hymen was intact. There was no medical evidence of any sexual assault of the other female detainees and, as such, their allegations of sexual abuse were unfounded. 52. In the prosecutor’s opinion, the soldiers had had to resort to the use of force in order to quell the prisoners’ riot, and the amount of force used had been “no more than absolutely necessary” within the meaning of Article 2 § 2 of the Convention. 53. An objection lodged against the prosecutor’s decision was rejected on 30 May 2005 by the Isparta Assize Court, which considered that the prosecutor’s decision was in accordance with the applicable legislation and procedure. 54. Furthermore, on 12 February 2008 the Burdur Assize Court terminated the criminal proceedings against the applicants for causing a riot, as the statutory time-limit for such proceedings had been reached. 55. In 2002 Mr Saçılık brought proceedings against the Ministry of Justice and the Ministry of the Interior, claiming TRL 100,000 for pecuniary damage and TRL 50,000 for non-pecuniary damage. 56. On 31 March 2005 the Antalya Administrative Court concluded that the use of heavy machinery in a prison had been unusual. Even assuming that its use had been necessary, Mr Saçılık had at that time been intoxicated by the gases used by the soldiers and had been trying to get fresh air through the hole opened by the digger. It had not been alleged that he was posing any threat to the soldiers or to the driver of the digger; indeed that would have been most improbable given his state of health at the time. It was also clear that the driver of the digger had seen Mr Saçılık but had carried on regardless. The Ministries were therefore responsible for his injury caused by the use of disproportionate force. It thus awarded Mr Saçılık the sums claimed by him in full, plus statutory interest. 57. The Ministries appealed. According to the applicable procedure, appeal proceedings do not affect the execution of first-instance court decisions. Thus, the total sum of TRL 244,150 was paid to Mr Saçılık before the appeal was decided. 58. The appeal lodged by the Ministries was upheld by the Supreme Administrative Court on 15 February 2008 and the decision awarding Mr Saçılık the compensation was quashed. The applicant’s request for a rectification of that decision was rejected by the Supreme Administrative Court on 25 February 2009. 59. Proceedings were restarted before the Isparta Administrative Court, which decided on 24 June 2010 to reject the applicant’s claim for compensation. According to the Isparta Administrative Court, the applicant had contributed to the incidents in the prison and members of the security forces had had to restore discipline in the prison. The applicant’s actions had thus severed the link of causation between the actions of the security forces and the ensuing damage. 60. On 20 August 2010 the judgment was served on the applicant, who lodged an appeal through the Isparta Administrative Court. The latter failed to transfer the applicant’s appeal to the Supreme Administrative Court within the statutory time-limit. Following the applicant’s challenge and, having noted this administrative error, the Supreme Administrative Court granted the appeal on 9 December 2010. In the meantime, in his observations the Chief Prosecutor at the Supreme Administrative Court opined that the applicant’s appeal should be dismissed. The proceedings are still pending. | 1 |
dev | 001-80253 | ENG | CZE | ADMISSIBILITY | 2,007 | KUČERA v. THE CZECH REPUBLIC | 4 | Inadmissible | Peer Lorenzen | The applicant, Mr Miroslav Kučera, is a Czech national who was born in 1956 and lives in Prague. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant occupied a flat in a building owned by the Ministry of the Interior. On 18 July 1996 the Ministry filed an action against the applicant seeking to order him to vacate the flat. On 16 February, 27 April and 7 September 1998 the Prague 6 District Court (obvodní soud) held three hearings. After having held a hearing on 26 May 1999, the court adopted a judgment by which it allowed the Ministry’s claim and ordered the applicant to vacate the flat. On 17 September 1999 the Prague Municipal Court (městský soud), upon the applicant’s appeal of 12 July 1999, upheld the first instance judgment. The proceedings were finally closed on 16 November 1999. On that date, the execution title became final. On 3 December 1999 the applicant filed an appeal on points of law (dovolání) in the Supreme Court (Nejvyšší soud) which dismissed it in judgment of 19 December 2000 which was notified to the applicant’s lawyer on 19 March 2001. In the mean-time, on 22 November 2000, the District Court had issued an eviction order against the applicant. The applicant’s subsequent requests to adjourn his eviction were rejected. | 0 |
dev | 001-102904 | ENG | HRV | CHAMBER | 2,011 | CASE OF JULARIĆ v. CROATIA | 3 | Violation of Art. 2 (procedural aspect);Non-pecuniary damage - award | Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | 6. The applicant was born in 1936 and lives in Osijek. 7. The events at issue took place in Vukovar, a Croatian town near the Serbian border which was heavily attacked by the Yugoslav People's Army and paramilitary Serbian armed forces during the Homeland War from August to November 1991 and finally occupied at the end of November 1991. Between 1992 and 1996 Vukovar was a part of the United Nations Protected Area (the “UNPA”). 8. In 1996 the United Nations Security Council established the United Nations Transitional Administration in Eastern Slavonia, Baranja and Western Sirmium (the “UNTAES”), which included Vukovar. On 15 January 1998 the UNTAES mandate ceased and the transfer of power to the Croatian authorities began. 9. According to the applicant, on 17 September 1991 several members of the Serbian paramilitary forces came to her home, took some money and ransacked the house looking for money and gold. The applicant recognised three of them as P.Z., S.Z. and V.Z. 10. On 3 October 1991 three men, dressed in Yugoslav People's Army uniforms, one of whom was M.S. and personally known to the applicant, came to the applicant's family house in Vukovar. They hit her husband, A.J., before taking him away. A few minutes later the applicant heard shots from an automatic weapon. The uniformed men then also took the applicant and her grandson, M.J., together with some other persons, including S.M., to the military headquarters. On the way there the applicant saw the dead body of her husband, his head battered, lying on a path in front of a house; the persons who had brought him out of the house were standing next to the body. 11. In autumn 1991 the applicant reported the above-mentioned event to the Vukovar police station, which was located in Zagreb at that time. 12. On 18 March 1992 the Vinkovci Police Department lodged a criminal complaint with the Osijek Military Prosecution against ten alleged offenders (G.J., M.S., S.S., M.N., B.G., M.K., Z.R., P.N., S.Z. and V.Z.), alleging that on 3 October 1991 they had arrested several individuals and then killed two of them, one of whom was the applicant's husband, and had thus committed a war crime against the civilian population. Following a request of the Osijek Military Prosecution, dated 14 May 1992, the Osijek Military Court opened an investigation in respect of the ten suspects on 31 August 1992 on the criminal charge of armed rebellion. The Military Court also ordered the suspects' detention and issued a warrant to find and arrest them, as they had absconded. 13. On 9 February 1993 the Military Court heard evidence from the applicant and her son. The applicant said that in September and October 1991, after the Serbian forces had entered Vukovar, but before the city finally fell, several persons, including her former neighbours M.S., S.S. and three brothers Z., all dressed in Yugoslav People's Army uniforms and equipped with shotguns and Kalashnikovs, had been coming to the yard in front of her house daily, threatening her and asking for her sons. She further stated that one of the persons who had come to her house on 3 October 1991 and taken her husband away was M.S., but she did not know the names of the others. A few minutes later, while she was being taken to the military headquarters, the applicant had passed the dead body of her husband. Her neighbour, S.M., who had been with her at the time, knew the names of the men who had taken the applicant's husband away. 14. On 17 December 1996 the Osijek County State Attorney's Office requested that the investigation be extended to two further suspects, Đ. P. and A.G. The charge was changed to one of war crimes against the civilian population. It was also requested that two witnesses be called once the police had found out their addresses. On 29 December 1996 the Osijek County Court requested the police to inform them of the addresses of the two witnesses. On 9 January 1997 the Osijek County Court extended the investigation to Đ.P. and A.G. and issued arrest warrants against them. On 23 January 1997 the police gave the County Court the requested addresses. 15. On 30 January 1997 the applicant and another witness gave evidence before the Osijek County Court. The applicant specifically named one of the perpetrators, and the witness S.M. said that she had seen all twelve suspects at the scene. 16. On 16 May 1997 the Osijek County Court stayed the investigation on the ground that the suspects and some of the witnesses resided in the occupied territory of Croatia, where the Croatian authorities were not able to exercise their power. 17. The Convention was ratified by Croatia on 5 November 1997. 18. The territories of Eastern Slavonija, Baranja and Western Slavonija were re-integrated into Croatia in January 1998. 19. On 27 November 2000 jurisdiction in the matter was transferred to the Vukovar County Court (Županijski sud u Vukovaru) and the investigation was resumed. 20. On 2 October 2001 one of the suspects, Đ.B., was arrested and gave evidence before an investigating judge of the Vukovar County Court. On 10 October 2001 the investigating judge heard evidence from three further suspects, B.G., Z.R. and S.Z. On 11 October 2001 Đ.B. again gave evidence before the investigating judge. All the suspects denied their involvement in the murder of the applicant's husband. On 5 December 2001 the applicant again gave evidence. 21. On 14 May 2002 the Vukovar County State Attorney's Office requested a further investigation. On 13 and 23 September 2002 the investigating judge again heard evidence from the witness S.M and two other witnesses. Witness D.K., who had been ordered to bury the body of the applicant's husband, stated that he had been arrested by members of the Serbian paramilitary forces and taken to the place where the dead body of the applicant's husband had been lying. The head had been battered and the body was riddled with bullets. The witness could not name any of the uniformed men who had been standing next to the body and had ordered him to bury it. The other witness, M.K., had no knowledge of the relevant facts. 22. The applicant enquired about the investigation on several occasions and on 17 December 2002 she was informed that an investigation had been opened against S.Z., V.Z. and others in the Vukovar County Court on charges of war crimes against the civilian population, and was still pending. 23. On 21 May 2003 the investigating judge terminated the investigation following a general amnesty granted in respect of the criminal offence of armed rebellion. On 27 May 2003 a three-judge panel of the Vukovar County Court quashed that decision on the ground that, prior to the amnesty, the offence had already been reclassified as a war crime against the civilian population. On 17 September 2003 the case file was forwarded to the State Attorney's Office. On 31 October 2003 that Office requested a further investigation. 24. A psychiatric report in respect of witness Z.F. was commissioned. The report was submitted to the Vukovar County Court on 6 February 2004. On 17 February 2004 Z.F. gave evidence before the investigating judge. He had no specific knowledge of the facts in issue. Further hearings were held before the investigating judge on 28 April, 29 October and 15 November 2004. In the meantime, on 20 September 2004, the investigation in respect of G.J. was terminated owing to his death. 25. On 13 January 2005 the applicant complained to the State Attorney of inactivity and delays in the investigation into the death of her husband and of failure to commit the suspect for trial. 26. At a hearing held before the investigating judge on 17 March 2005 witness S.M. gave her evidence. 27. On 6 April 2005 the applicant again gave evidence. She stated that another witness, A.M., had been present when her husband had been taken away on 3 October 1991. A.M. was not called as a witness. 28. Further hearings were held before the investigating judge on 6 and 21 April, 15 June, 13 July, 8 August and 11 November 2005. 29. On 25 March 2006 the applicant lodged a constitutional complaint of inactivity on the part of the investigating authorities. The Constitutional Court answered in a letter of 31 March 2006 that the applicant's complaint was not suitable for proceedings before that court. 30. At hearings held before the investigating judge on 11 May 2006 and 14 November 2007, further witnesses gave evidence. 31. Identification parades were held on 17 November and 9 December 2008 in order to verify the identity of the suspect M.S. None of the three witnesses called, including S.M., recognised him as one of the people who had taken the applicant's husband away. On 5 March 2009 the investigation in respect of M.S. was terminated for lack of evidence. 32. On 1 July 2009 the investigating judge requested international legal assistance in order to have the suspect A.G. interviewed in Sweden. On 3 April 2009, in reply to a request from the Swedish authorities, the investigating judge supplied a list of questions to be put to A.G. The latter was heard by the Swedish authorities on 9 February 2010. 33. On 31 March 2010 the investigating judge heard evidence from witness M.J. 34. On 22 April 2010 the Vukovar County Court terminated the proceedings in respect of the suspect M.N. because he had died. 35. On 27 April 2010 the offence with which the suspects had been charged was reclassified as armed rebellion. On the basis of that reclassification and pursuant to the Amnesty Act, the Vukovar County Court terminated the proceedings on 30 July 2010. | 1 |
dev | 001-22829 | ENG | ITA | ADMISSIBILITY | 1,999 | MARINIELLO v. ITALY | 4 | Inadmissible | Christos Rozakis | The applicant is an Italian national, born in 1955 and currently detained in Benevento. Before the Court, he is represented by Mr Giuseppe Ricciulli, a lawyer practising in Naples. In November 1992, the applicant, accused of belonging to a criminal association and of drug-trafficking, was arrested. The suspicions against him were partly based on the content of certain wiretappings. In an order of 5 May 1994, the investigating judge committed the applicant for trial, commencing on 21 October 1994 before the Nola District Court. In a judgment of 5 May 1995, filed with the registry on 31 May 1995, the District Court, relying on the content of the wiretappings, sentenced the applicant to thirteen years imprisonment. The applicant and the Public Prosecutor lodged an appeal with the Naples Court of Appeal. In a judgment of 21 December 1995, filed with the registry on 9 January 1996, the Court of Appeal confirmed the first-instance decision. The applicant appealed on points of law. In a judgment of 11 July 1996, the Court of Cassation rejected the appeal. | 0 |
dev | 001-77686 | ENG | HUN | ADMISSIBILITY | 2,006 | SZILAGYI v. HUNGARY | 4 | Inadmissible | null | The applicant, Mr János Szilágyi, is a Hungarian national who was born in 1949 and lives in Szigetvár, Hungary. Because of his disability, he is represented before the Court by his brother, Mr I. Szilágyi. The Government are represented by Mr L. Höltzl, Agent, Ministry of Justice and Law Enforcement. The Szigetvár Public Water System Corporation (Szigetvári Víziközmű Társulat) was founded on 14 May 1998. The applicant, co-owner of real estate in Szigetvár, was obliged to become a member, pursuant to section 34 § 4 of the Act on Water Management (“the Act”). According to paragraph 5 of the same section, the applicant had to pay a compulsory membership fee, a so-called “beneficiary’s contribution” (érdekeltségi hozzájárulás), to the Corporation. The amount of the fee (in the applicant’s case, 167,580 Hungarian forints) was determined in relation to the size of his real estate. The decisions concerning the fees payable by each member were dispatched in July 1998. On 3 December 1998 and every year afterwards, a reminder was sent to the applicant about the sum he owed the Corporation. Disputing the latter, the applicant wrote a complaining letter to the Corporation on 12 April 1999. On 20 June 1999 the applicant challenged the constitutionality of the Act before the Constitutional Court. On 29 June 2001 that court dismissed the applicant’s motion, together with several other similar cases. It held that the unilateral action of the legislator, obliging inhabitants of a certain area to be members of a public water system corporation and regulating their rights and obligations concerning the use of water, was justified by the public interest in preserving the quality of water and in protecting the environment. In so far as the applicant’s complaint concerned the conditions of compulsory membership of a specific corporation, the Constitutional Court found that the ordinary courts had jurisdiction in such matters. In this connection it also noted that the corporation was not an administrative body and that the corporation and its members had a relationship under civil, rather than administrative, law. It was observed that any member disputing the fee payable had the right to seek judicial review within 30 days counted from the date of notification of the imposition of the fee (sections 41 § 3 and 43 § 2 of the Act). On 1 March 2002 the applicant instituted proceedings in the Szigetvár District Court against the Corporation. He claimed that his membership of the corporation was not only involuntary but also unlawful, in that the water supply for his real estate was not provided by the corporation. In the absence of any service performed by the corporation, no liabilities should have arisen on his part. On 17 April 2002 the applicant completed his action. In the first paragraph on page 7 of his submission he wrote: “...The purposeless dispute has been going on between the parties since July 1998, for almost four years. The water management company obliges János Szilágyi to make beneficiary’s contributions at the price of infringing his rights!” On 4 July 2002 the District Court rejected the applicant’s action without an examination of its merits. It held that it had been submitted outside the 30-day statutory time-limit following the delivery of the impugned decision, laid down in section 43 § 2 of the Act on Water Management. It reasoned that: “the applicant himself stated in his submissions clarifying his action (in the first paragraph on page 7) that a decision obliging him to pay a contribution was delivered to him in July 1998”. In his appeal the applicant requested the annulment of the first instance order and contested the District Court’s statements. He argued that the District Court had, by stating that he had admitted that a decision had been served on him in July 1998, misquoted the first paragraph of page 7 of his submissions. In fact, no formal decision had been given, or served on him, in July 1998 or on any other subsequent date. The applicant argued that, no decision having ever been given, he could not possibly have missed any time-limit. On 25 November 2002 the Baranya County Regional Court dismissed the applicant’s appeal. It found that: “the applicant had not attached the disputed decision to his submissions, but he had received it; this fact was rightly referred to by the District Court, which the second-instance court quotes, for the sake of emphasis: « The water management company obliges János Szilágyi to make beneficiary’s contributions ».” | 0 |
dev | 001-89362 | ENG | UKR | ADMISSIBILITY | 2,008 | KETKO v. UKRAINE | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Volodymyr Butkevych | The applicant, Mr Viktor Mykolayovych Ketko, is a Ukrainian national who was born in 1942 and lives in Kyiv. He is represented before the Court by Ms M. Kudelya, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) are represented by their Agent, Mr. Y. Zaytsev. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant owns a 50 % share in AB Imeks Ltd, a joint venture (hereinafter the “Company”). The Company was incorporated on 17 September 1992 as a joint venture with a 49 % share at all relevant times being owned by a Polish partner. The Company and its subsidiary were conducting a gas trading business. The Company also fell into the category of “companies with foreign investments”, within the meaning of the Foreign Investments Act 1992 (the “1992 Act”), until its repeal in 2000. The 1992 Act was adopted with a view to encouraging foreign investments and was applied to companies where a foreign partner had at least a 20% share. This Act established preferential treatment for such companies, including, inter alia, 10 years' immunity from changes in the law governing foreign investments (Section 9). This immunity was to be granted on the making of the relevant application and calculated from the date of its establishment. On 17 February 2000 Parliament passed the Companies set up with National Property and Assets (Termination of Discrimination) Act 2000 (the “2000 Act”), which provided that companies with a foreign shareholding were subject to general tax, customs and currency regulations, and repealed the 1992 Act. The 2000 Act affected all joint ventures irrespective of when the foreign investment had been made. In its judgment of 29 January 2002, the Constitutional Court gave a binding interpretation of Section 5 of the 2000 Act, holding that it provided valid grounds for refusing new and withdrawing previously granted taxation privileges. In November 1998 the Company instituted proceedings in the Lutsk City Court claiming immunity under Section 9 of the 1992 Act. On 18 January 1999 the court found for the Company and declared that, until 17 September 2002, the Company was exempted from any new taxes, duties, changes in the method of calculation or payment of taxes introduced after 17 September 1992. On 4 March 1999 the Volyn Regional Court, following the appeal of the customs authorities, quashed this decision and remitted the case. On 15 June 1999 the Company's claim was declared inadmissible. On 3 November 1999 the Supreme Court, upon the supervisory complaint of its Deputy President, quashed the decisions of 4 March 1999 and 15 June 1999, and upheld the judgment of 18 January 1999, thus reinstating the Company's immunity from any changes in tax and customs law. On 1 December 2000 the Lutsk City Court clarified its judgment of 18 January 1999 upon the Company's request. The court specified that the Company, as well as its subsidiaries, was immune from any changes in fiscal legislation, including that introduced by the 2000 Act. This ruling was upheld by the Volyn Regional Court on 25 June 2001 and by the Supreme Court on 12 October 2001. On 28 October 2002 the Supreme Court rejected the request of the Head of Volyn Customs Office to reopen the proceedings due to the new circumstances. On 17 June 2002 the Central Energy Customs Service (hereafter “CECS”) refused to allow the Company's subsidiary free transit of a certain amount of gas across the Ukrainian border. The Company's subsidiary together with the applicant and the Company's foreign shareholder challenged this decision before the courts. On 25 July 2002 the Podilsky District Court of Kyiv allowed this claim and ordered CECS to allow the gas to be imported, referring in this respect to the January 1999 judgment. On 7 February 2003 the Kyiv City Court of Appeal granted CECS's appeal, quashed the judgment of 25 July 2002 and rejected the claim as unfounded. The court indicated that the 2000 Act, as interpreted by the Constitutional Court, gave sufficient grounds for annulling the taxation privileges enjoyed by the Company and its subsidiary. On 6 May 2003 the Supreme Court rejected the cassation appeal against the judgment of the Kyiv City Court of Appeal as unfounded. Section 2 of that Act provided that it was applicable to companies of any type or form as long as a foreign investor owned at least a 20% share in such a company. According to Section 9 of that Act a “company with foreign investments” falling into the scope of this Act could be granted, upon submission of the relevant application, immunity for a period of ten years from changes in special legislation to do with the regulation of foreign investments. The Preamble specified that the Act's aim was to put companies with foreign shares in an equal position to those without foreign investments, thus protecting free competition and domestic industry. Section 1 of the Act declared that companies with foreign investments were subject to general tax, customs and currency regulations. Section 4 of the Act repealed the 1992 Act. According to Section 5, this Act applied to all joint ventures irrespective of when the foreign investment was made. Following a request from the Cabinet of Ministers, the Constitutional Court gave an official interpretation of Article 5 of the 2000 Act. The court explained that this provision constituted adequate grounds for refusing new and withdrawing previously granted applications for those privileges regarding taxes, customs duties and currency controls. | 0 |
dev | 001-98121 | ENG | RUS | CHAMBER | 2,010 | CASE OF BEZYMYANNYY v. RUSSIA | 3 | Violation of Art. 10;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | 5. The applicant was born in 1950 and lives in Belgorod. 6. The applicant is a businessman and a former controlling shareholder of a private company OAO “Restoran Belgorod”. According to the applicant, in 1997 a number of third persons produced a fake sales contract in respect of his shares in the company, as well as a fake register of the shareholders. They then tried to gain control over the company. Thereafter the matter was brought before the domestic courts. 7. On 27 April 1998 the Oktyabrskiy District Court of Belgorod, presided by judge B., dismissed the applicant's action to have the sale annulled and the register of shareholders declared fake and illegal. The court refused to order a forensic examination of the evidence, including a copy of the register of shareholders and the registrar's book of records, which the applicant had claimed were fake, and having admitted and considered them, rejected the applicant's action as groundless. 8. On 10 September 1998 that judgment was upheld on appeal by the Belgorod Regional Court. 9. On 18 September 1998, at the applicant's request, a police investigator initiated criminal proceedings for fraud against a number of third persons. On 28 October 1998 the investigator ordered an expert examination of the documents which the applicant had claimed were fake in the proceedings presided over by judge B. 10. On 4 and 12 November 1998 the respective examinations were completed. They confirmed that the copy of the register of shareholders and the registrar's book of records had been tampered with and that some of the entries had been fraudulently deleted or altered. 11. It appears that on 22 November 2001 the criminal investigation was discontinued. 12. Thereafter the case was repeatedly suspended and resumed. 13. The latest decision to resume the proceedings was taken on 5 September 2002. The outcome of the investigation is unclear. 14. On 23 March 2000 the applicant wrote a letter to the Prosecutor of the Belgorod Region with a copy to the Prosecutor General of Russia, alleging that in the course of the proceedings in his case in 1998 judge B., “acting in the exercise of her duties, had committed a crime by delivering a deliberately unjust decision knowingly based on incorrect and sometimes even openly forged documentary evidence”. The letter set out the applicant's views on the circumstances of his case, referred to the outcome of forensic examinations carried out by the investigator in the criminal case and requested the responsible officials to bring criminal proceedings against judge B. 15. Identical letters were sent to the President of the Belgorod Regional Court and the head of the Judiciary Qualification Board on 12 May 2000. 16. In response to the letter of 23 March 2000, on an unspecified date the President of the Belgorod Regional Court and judge B. requested the Regional Prosecutor's office to bring criminal proceedings against the applicant for libel. 17. By decision of 6 April 2000 an investigator instituted proceedings against the applicant for libel. 18. On 27 September 2000 the applicant was questioned as a witness and stated that judge B. had received bribes. 19. On 18 May 2001 those proceedings were discontinued because of an amnesty law. 20. On an unspecified date judge B. sued the applicant for defamation, claiming 75,000 roubles (RUB - approximately 3,000 euros (EUR)) in damages and seeking an order for the retraction of the impugned statements. 21. By judgment of 7 June 2002 the Sverdlovskiy District Court of Belgorod granted the claims in full. The court noted that the judicial decision taken by judge B. remained in force and that the applicant had used all possible remedies against it by instituting appeal proceedings. Without examining the form or accuracy of the statements made by the applicant in his letter and having refused his requests for the admission of evidence, the court concluded that the applicant had defamed judge B. It ordered the applicant to send the Prosecutor General of Russia, the Prosecutors of Belgorod and the Belgorod Region, the President of the Belgorod Regional Court and the Judiciary Qualification Board of the Belgorod Region a letter retracting his previous allegations against judge B. The court also awarded judge B. RUB 75,000 (approximately EUR 3,000) in non-pecuniary damages. 22. On appeal, the applicant argued that the court had failed to examine whether his letter to the relevant authorities could constitute dissemination of information within the meaning of the applicable law, that the inaccuracy of his allegations had been presumed and he had been refused a chance to prove them and that the first instance court had failed to require from judge B. any proof of actual harm resulting from the letter. The applicant also objected to the use of the statements which he had made during the interview with the investigator of the libel case. 23. On appeal the Belgorod Regional Court reduced the award of damages to RUB 20,000 (approximately EUR 800) and upheld the rest of the judgment on 10 September 2002. 24. By a final decision of 18 November 2003 the Belgorod Regional Court rejected the applicant's action to annul the transfer of his property to a number of third persons. 25. By a judgment of 4 February 2003 the Oktyabrskiy District Court rejected his application to annul a lease agreement between the applicant and a certain commercial entity. 26. Article 33 of the Constitution of the Russian Federation provides that citizens of the Russian Federation have the right to apply in person, as well as to submit individual and collective applications, to state bodies and local government institutions. 27. Article 152 of the Civil Code of the Russian Federation provides that a citizen may apply to a court to have information damaging his or her honour, dignity or professional reputation retracted unless the person who disseminated such information proves its accuracy. In addition to retraction, the citizen may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of such information. 28. Section 2 of Resolution no. 11 of the Plenary Session of the Supreme Court of the Russian Federation of 18 August 1992 (as amended on 25 April 1995) “On certain issues arising during the examination by courts of action for the protection of the honour and dignity of citizens, and also the professional reputation of citizens and legal entities” defines damaging information as information which is inaccurate and contains assertions that a citizen has broken the law or transgressed moral principles as well as impairing the honour or dignity of a citizen or the professional reputation of a citizen or a legal entity. The dissemination of such information is understood as the publication or broadcasting of such statements or their inclusion in professional references, public speeches, applications to State officials or communication in other forms, including oral, to at least one another person. The communication of such information to the person whom it concerns cannot be considered as its dissemination. 29. Section 7 of the Resolution lays the burden of proof on the defendant to show that the information disseminated was accurate; the plaintiff must prove only that the defendant disseminated the information. | 1 |
dev | 001-102117 | ENG | GBR | CHAMBER | 2,010 | CASE OF SEAL v. THE UNITED KINGDOM | 3 | Remainder inadmissible;No violation of Art. 6-1 | Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | 7. The applicant was born in 1944 and lives in Merthyr Tydfil. 8. In the early evening of 9 December 1997, the applicant went to visit his mother at her house in Merthyr Tydfil but could not park his car because of obstruction by other vehicles. He went into his mother's house having been unable to alert the owners of other vehicles by sounding his horn. He decided to telephone the police to complain about the obstruction and his mother tried to stop him. At some stage, someone contacted the police and they arrived at the house some minutes later. 9. There is a dispute about what occurred subsequently. The applicant was arrested inside his mother's house for breach of the peace. He disputes that there were lawful grounds for arresting him. He was taken outside the house into the street. The police claimed that at that stage, they intended to take him home but as a result of what happened outside they decided to remove him in accordance with section 136(1) of the Mental Health Act 1983 (“the 1983 Act” – see paragraphs 33-36 below). 10. The applicant was taken to St Tydfil's hospital, less than a mile away from his mother's home, where he was detained pursuant to section 136(2) of the 1983 Act and, subsequently, section 2 of the 1983 Act until 18 December 1997, when his release was ordered by a mental health review tribunal. 11. On 5 August 2003, the applicant's then solicitors wrote to the police claiming damages on the basis that there was no justification for the applicant's detention under section 136. 12. On 8 December 2003, the eve of the expiry of the relevant limitation period (see paragraph 37 below), the applicant (who was by then no longer legally represented) issued proceedings in the County Court seeking damages from the Chief Constable of South Wales Police for “trespass, assault, wrongful arrest, misuse of police powers, misuse of section 136 of the 1983 Act, falsehood and personal injuries sustained” as a result of the events of 9 December 1997. His particulars of claim indicated that: “At the time of the incident on 9/12/97 at my mother's house the police at no time inform[ed] me of any arrest or that I was to be detained pursuant to Section 136 of the Mental Health Act, 1983. I am aware that the police can only use Section 136 to detain persons found in public places provided that the person to be detained appears to the police constable to have a mental disorder and to be in immediate need of care or control and such that it be necessary to take the person to a place of safety for the protection of the person detained or for the protection of others. At no stage did the police find me in a public place, on the contrary I was taken from a private dwelling by the police to a public place and at no time could my conduct be construed or considered as that of a mentally-disordered person. Therefore the use of Section 136 of the Mental Health Act was unlawful.” 13. Under section 139(2) of the 1983 Act, the leave of the High Court was required prior to the commencement of any claim relating to the exercise of powers under that Act (see paragraph 34 below). The applicant failed to seek High Court leave before commencing his claim. 14. On 4 May 2004, the respondent filed both a defence to the claim on the grounds of section 139(1) of the 1983 Act (see paragraph 34 below) relying on the absence of allegations of bad faith or failure to take reasonable care and an application for the claim to be struck out on the grounds that leave from the High Court, as required under section 139(2), had not been obtained prior to the proceedings being brought. The respondent further argued that the claims in defamation and falsehood were time-barred pursuant to section 4A of the Limitation Act 1980 (“the 1980 Act” – see paragraph 38 below). 15. On 5 July 2004, the County Court ordered that the claim be struck out on the basis that the proceedings were a nullity as leave had not been granted by the High Court. The claim in defamation and malicious falsehood was struck out by consent as the relevant limitation period had expired in respect of such claims. 16. On 27 August 2004, permission to appeal the decision to strike out the claim was granted. 17. On 18 October 2004, the Circuit Judge varied the order of the County Court. He reinstated the claim insofar as it related to events which took place before the applicant was detained and removed under the 1983 Act. In relation to the applicant's complaints regarding his detention under the 1983 Act, however, the Circuit Judge dismissed the applicant's appeal, finding the legal proceedings in that regard to be a nullity as a result of the failure to obtain prior leave. 18. In handing down his judgment, he noted: “I did consider at one stage whether it would be open to Mr. Seal simply to make an application to the High Court for the permission required by section 139 of the Mental Health Act and then simply apply under the provisions of the [Civil Procedure Rules] ... to add the further claim. However, the defendant will raise the Limitation Act defence.” 19. The applicant was granted leave to appeal to the Court of Appeal. 20. Before the Court of Appeal, the applicant argued that the Circuit Judge should have reinstated the whole claim and should have granted a stay in relation to that part of the complaint relating to the removal and detention under the 1983 Act until the necessary leave had been obtained. On 19 May 2005, the Court of Appeal dismissed the applicant's appeal. Leave to appeal to the House of Lords was granted. 21. The argument before the House of Lords focussed on the consequences in terms of section 139(2) of the 1983 Act of bringing proceedings without prior leave from the High Court. The respondent argued that such a failure rendered the proceedings a nullity. The applicant, on the other hand, argued that lack of leave was a procedural irregularity which could be corrected. 22. On 4 July 2007, the House of Lords handed down its judgment and, by a majority of three to two, dismissed the applicant's appeal. 23. Lord Bingham of Cornhill, of the majority, considered the applicant's argument that section 139(2) infringed his right of access to court but concluded that this was not an argument that he could accept. He noted (at paragraph 20): “The European Court has accepted that the right of access to the court is not absolute, but may be subject to limitations: Ashingdane v United Kingdom (1985) 7 EHRR 528, para 57. The protection of those responsible for the care of mental patients from being harassed by litigation has been accepted as a legitimate objective: ibid, para 58; M v United Kingdom (1987) 52 DR 269, 270. What matters (Ashingdane, para 57) is that the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent as to impair the very essence of the right. But the threshold for obtaining leave under section 139(2) has been set at a very unexacting level: Winch v Jones [1986] QB 296. An applicant with an arguable case will be granted leave. Mr Seal's undoing lay not in his failure to obtain leave which he should have had but in his failure to proceed within the generous time limit allowed by the 1980 Act, which would not itself fall foul of article 6: Stubbings v United Kingdom (1996) 23 EHRR 213.” 24. Similarly, Lord Brown of Eaton-under-Heywood considered that Parliament had made it clear under section 139 that relevant proceedings brought without leave were a nullity. “ 73. It seems to me quite evident from the legislative history of this provision that from 1930 onwards Parliament intended to make leave a precondition of any effective proceedings. Unlike the position prior to 1930, the prospective defendant was not to be required to take any action whatever with regard to a proposed claim unless and until it was sanctioned by a High Court judge. Absent such leave, albeit he might be notified of a claimant's proposal to proceed against him, he was not to be troubled by such proceedings. The very inflexibility of the provision was an integral part of the protection it afforded. If, however, the [applicant's] approach were to be adopted, inevitably (unless by chance the court took the point of its own motion) the defendant himself would be drawn into the litigation. 74. ... I repeat, the requirement for leave here was to safeguard prospective defendants from being faced with proceedings (which might not be sufficiently meritorious to deserve leave) unless and until a High Court judge thought it appropriate that they be issued. And that is not a protection that can be secured save by a clear and inflexible rule such as section 139(2) (and its legislative predecessors) have always hitherto been understood to provide. Just such a rule applies in respect of those adjudged vexatious litigants under section 42 of the Supreme Court Act 1981 and Parliament clearly intended to achieve the same result under the Mental Health Act legislation. Whether or not such protection is necessary or desirable is, of course, open to question and has, indeed, been extensively debated over recent years. But your Lordships' task is not to decide whether it is desirable but whether presently the legislation confers it.” 25. As to the Article 6 argument advanced by the applicant, Lord Brown said (at paragraph 75): “To suggest that the approach hitherto adopted to section 139(2) involves a violation of article 6 of the European Convention on Human Rights seems to me fanciful. Such an approach cannot sensibly be seen (as Baroness Hale suggests) 'to brand every person who is or has been subject to the compulsory powers in the Mental Health Act as a potential vexatious litigant'. Nor can it be seen to have 'an effect out of all proportion to the aim which it is attempting to pursue.' Of course, in a rare case (perhaps such as this one) a combination of circumstances—ignorance of the law (ie of section 139(2)), the delay in the issue of proceedings until the very end of the six year limitation period, and the inflexibility of section 2 of the Limitation Act 1980 itself (assuming the defendant chooses to take the Limitation Act defence) will operate to deprive the prospective claimant of his claim. But that, of course, is equally so in the case of a litigant in person ignorant of the six year limitation period itself. In each case the loss of the claim is the price paid for certainty—just as there is a price to be paid for the established principle (and the assurance it provides) protecting various classes of prospective defendant against claims in negligence ... None of these cases can properly be characterised as a denial of access to the courts contrary to article 6 and it seems to me unsurprising that the point was not even taken in the courts below.” 26. Baroness Hale of Richmond, dissenting, noted at the outset of her opinion (at paragraph 38): “The question is one of statutory construction. Despite the antiquity of this provision, which dates back to the Mental Treatment Act 1930, the question has never arisen directly before. But it concerns a fundamental constitutional right – the right of access to the courts. It also concerns the exercise of that right by a peculiarly vulnerable group of people – people who are or have been the subject of compulsory detention under the Mental Health Act 1983. The courts here – and in Strasbourg – have taken particular care to safeguard the right of prisoners to have access to the courts while acknowledging that imprisonment inevitably imposes some constraints: see particularly Golder v United Kingdom (1975) 1 EHRR 524 in Strasbourg and R v Secretary of State for the Home Department, Ex p Leech [1994] QB 198; R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115; and R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532 in the United Kingdom. The courts should be no less vigilant to safeguard the rights of mental patients, most of whom have done no wrong and very few of whom are suffering from mental disorders which make them more likely than others to bring vexatious claims.” 27. She continued: “41. I approach the task of construing section 139(2), therefore, on the basis that Parliament, by enacting the procedural requirement to obtain leave, did not intend the result to be that a claimant might be deprived of access to the courts, unless there is express language or necessary implication to the contrary. If there is no express language, there will be no necessary implication unless the legislative purpose cannot be achieved in any other way. Procedural requirements are there to serve the ends of justice, not to defeat them. It does not serve the ends of justice for a claimant to be deprived of a meritorious claim because of a procedural failure which does no substantial injustice to the defendant. 42. The express words are: 'No civil proceedings shall be brought ... in respect of any such act without the leave of the High Court; ...' These words say nothing about what is to be the consequence if, through ignorance or error, proceedings are in fact started without leave ...” ... “49. Nowhere ... is there any discussion of the consequence if proceedings are brought without first obtaining leave. The purpose was and remains the protection of staff. But protection from what? It cannot have been intended or expected that staff would be protected from all knowledge of possible claims. The 1930 Act had expressly required that notice of an application for leave be given to the proposed defendant. Good practice and common courtesy, then as now, would require that they be informed of what was afoot and have the opportunity if they so desired to resist the grant of leave. What staff are protected from is having to defend a baseless action. Such protection is not undermined if an action is, whether through ignorance or inadvertence, begun without leave and the defendant takes the point or the court takes it of its own motion. The burden is still on the claimant to establish that the case should go further.” 28. She concluded (at paragraphs 53-54) that: “If spotted in time, the failure to obtain leave for civil proceedings can readily be put right and without prejudice to the legitimate interests of the defendant. If it is not spotted in time, and the action succeeds, no injustice will be done to the unsuccessful defendant if the judgment is allowed to stand; but a serious injustice will be done to the successful claimant if it has to be set aside, for by then it is not at all unlikely that the action will be statute barred. The fact that leave is required at all may not emerge until a relatively late stage in the proceedings. That a claimant who has suffered a wrong should be deprived of his remedy merely because of a procedural failure which no-one noticed at the time is an affront to justice. My Lords, I would not interpret section 139(2) so as to achieve such an obviously unjust result unless driven by the statutory language so to do. The statutory language makes it clear that if anyone, including the claimant, appreciates the point, then leave must be obtained. It does not make it clear that if no-one, including the court or the defendant, does so, the proceedings are a nullity. Halfway houses are usually to be preferred to absolute extremes.” 29. Considering Article 6 § 1 and the jurisprudence of this Court, Baroness Hale noted: “57. To be proportionate, a restriction on fundamental rights has first to bear a rational connection with the legitimate aim pursued. To restrict the right of access to the courts of people who have previously abused that right obviously bears a rational connection with the aim of protecting defendants against vexatious claims. But it is not obviously rational to brand every person who is or has been subject to the compulsory powers in the Mental Health Act as a potential vexatious litigant. There are some compulsory patients who suffer from paranoid delusions; there are some who suffer from psychopathic disorders who may be more inclined than others to make trouble. But the blanket restriction in section 139(2) takes no account of these subtleties. It assumes that everyone who has ever been subject to Mental Health Act compulsion is automatically suspect. This is not only empirically unproven. It certainly cannot be taken for granted when Mental Health Act powers may be exercised by people with no mental health expertise whatsoever. On the one hand, therefore, section 139(2) goes too far. On the other hand, however, it may not go far enough, because it is limited to acts done in pursuance of the Mental Health Act itself. If certain mental patients are ex hypothesi vexatious litigants, then people who exercise authority over them otherwise than under the Mental Health Act may also deserve protection. 58. This case is an excellent illustration. The police case is that Mr Seal was first arrested inside his mother's home for a breach of the peace. Having been taken outside he was then detained under section 136(1) of the 1983 Act: ... Police officers lead difficult and dangerous lives. They have to make snap decisions in complex situations where there is no time for quiet contemplation. They deserve the support of the public, the courts and the law. But it has not been shown why they should need more protection and more support when they remove people to a place of safety under section 136 of the Mental Health Act 1983 than they have when they conduct an ordinary arrest. 59. Even where a rational connection between the end and the means can be shown, the means still have to be proportionate to the ends. There will be cases in which the operation of section 139(2) is proportionate. There will be other cases, quite possibly including this, in which it is not. Blanket provisions, which catch a great many cases in which the restriction is not justified in order to catch the few where it may be, require particularly careful scrutiny. If section 139(2) has the effect that proceedings are always a compete nullity, thus depriving a claimant of a good claim, that is an effect out of all proportion to the aim which it is attempting to pursue. Interpreting the subsection so as to allow the court to cure the defect once detected is a proportionate response.” 30. In the applicant's case, she concluded that the appeal should be allowed, noting (at paragraphs 60-61): “ The police may well have an answer to Mr Seal's claim. But their case is not without difficulty. If he was 'removed' under section 136 of the Mental Health Act from his mother's home, he cannot have been 'found in a place to which the public have access'. If he was arrested in her home for a breach of the peace, and then 'removed' under section 136 after they had taken him outside, can it be said that they 'found' him there? (To say otherwise would deprive section 136 of much of its usefulness when an arrested person is later discovered to have a mental disorder.) These are questions which deserve to be addressed at the trial of the claim. By no stretch of the imagination is this vexatious. It may not be worth a great deal of money but that is not the point. 61. Section 139(2) covers a great many people who are neither vexatious litigants nor, by reason of their mental disorder, more likely than the general population to launch vexatious actions. I do not believe that Parliament ever intended that it should operate so as to bar the claims of people who began proceedings in time but did not obtain the High Court's leave in time. Defendants deserve protection from vexatious claims. They do not deserve protection from meritorious claims. But if that was Parliament's intention, it is an irrational and disproportionate interference in the Convention right to access to justice. There is no problem in reading down section 139(2) to cure that because there is nothing there to prevent it. However, the best solution would be to remove the procedural requirement altogether, as proposed in Clause 298 of the Draft Mental Health Bill proposed by the Department of Health in 2004 (2004, Cm 6305-1). The Mental Health Bill currently before Parliament, provides such an opportunity.” 31. Also dissenting, Lord Woolf accepted that it was not desirable to leave it until the limitation period had 32. Following the conclusion of the proceedings in the House of Lords, the applicant did not continue with the remainder of his claim (see paragraphs 12, 15 and 17 above) in the County Court. 33. Section 136 of the 1983 Act, as in force at the time of the applicant's arrest and the commencement of the legal proceedings in this case, provided as follows: “(1) If a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety within the meaning of section 135 above. (2) A person removed to a place of safety under this section may be detained there for a period not exceeding 72 hours for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an approved social worker and of making any necessary arrangements for his treatment or care.” 34. Section 139 provided: “(1) No person shall be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act or any regulations or rules made under this Act, or in, or in pursuance of anything done in, the discharge of functions conferred by any other enactment on the authority having jurisdiction under Part VII of this Act, unless the act was done in bad faith or without reasonable care. (2) No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court; and no criminal proceedings shall be brought against any person in any court in respect of any such act except by or with the consent of the Director of Public Prosecutions.” 35. The relevant provisions of the 1983 Act have undergone amendments since the time of the events to which this application relates which are irrelevant for the present purposes. 36. Section 2 of the 1983 Act allows for detention for the purposes of assessment for up to 28 days. 37. Section 2 of the Limitation Act 1980 (“the 1980 Act”) provides as follows: “An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued” 38. Section 4A establishes a more limited time period for commencing actions for defamation or malicious falsehood and provides that: “The time limit under section 2 of this Act shall not apply to an action for– (a) libel or slander, or (b) slander of title, slander of goods or other malicious falsehood, but no such action shall be brought after the expiration of one year from the date on which the cause of action accrued.” 39. Section 11 of the 1980 Act provides for a special time limit for actions in respect of personal injuries: “(1) This section applies to any action for damages for negligence, nuisance or breach of duty ... where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person. ... (2) None of the time limits given in the preceding provisions of this Act shall apply to an action to which this section applies. (3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5) below. (4) Except where subsection (5) below applies, the period applicable is three years from– (a) the date on which the cause of action accrued; or (b) the date of knowledge (if later) of the person injured. ...” 40. Section 33 of the Act provides for discretionary disapplication of the time-limit for actions in respect of personal injuries or death: “(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which– (a) the provisions of section 11 ... of this Act prejudice the plaintiff or any person whom he represents; and (b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents; the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates. ... – (a) the length of, and the reasons for, the delay on the part of the plaintiff; (b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 ...; (c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant; ... (e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages; (f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received. ...” 41. The United Nations Convention on the Rights of Persons with Disabilities, signed by the respondent State on 30 March 2007 and ratified on 8 June 2009, aims to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity (Article 1 of the UN Convention). 42. Article 12 provides for equal recognition before the law and stipulates: “1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law. 2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. 3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. 4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person's circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person's rights and interests. 5. Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.” 43. Article 13 contains provisions on access to justice and provides, in so far as relevant: “1. States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages. ...” | 0 |
dev | 001-106773 | ENG | MLT | CHAMBER | 2,011 | CASE OF VASSALLO v. MALTA | 3 | Violation of P1-1;Remainder inadmissible;Pecuniary damage - reserved | Geoffrey Valenzia;George Nicolaou;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva | 6. The applicant, Victoria Vassallo, is a Maltese national who was born in 1954 and lives in Zebbug, Malta 7. The applicant is one of eleven owners of a piece of land in Birkirkara, Malta, having an area of 1,578 square metres (“sq.m.”). 8. The land was the subject of a declaration by the Governor General dated 29 November 1974, stating that it would be expropriated for a public purpose. The public purpose intended was a social housing project. 9. At the time, the initiation of compensation proceedings was an action which could only be undertaken by the authorities and to which no time-limit applied. However, in the 1990s domestic case-law confirmed that the ordinary courts had the competence, upon a request made by persons in the applicant’s position, to set a time-limit for the performance of the obligation by virtue of Article 1078 of the Civil Code, a long-standing provision. 10. Following twenty-five years of silence on the part of the authorities, on 9 February 1999 the Government issued a notice to treat and offered the owners of the land 5,600 Maltese liri (MTL), approximately 13,045 euros (EUR). This reflected the value (on the date of valuation) of the property as agricultural land, including some rural structures according to an independent architect’s evaluation commissioned by the Government on 21 November 1998. The owners refused this offer and proceedings were initiated before the Land Arbitration Board (“LAB”) to assess the amount of compensation due. These proceedings are still pending to date since they have been suspended pending the completion of the ordinary and constitutional proceedings instituted (see below). 11. From 1974 to 2000 the property remained unused. On 1 December 2000, pending the proceedings mentioned below, the authorities ordered the restitution to the owners of part of the land measuring 324 sq.m., which was eventually released in 2002. On 2 April 2002 the applicant and the other owners signed a sworn declaration to the effect that no further claims for compensation or damages would lie in respect of this piece of land. 12. The remaining land (1,254 sq.m.) was kept by the authorities with the aim of building a social housing project. In 2002 the Government started constructing apartments and maisonettes. While the price offered for the remaining land still has to be apportioned by the LAB, the Government estimated that a fair pro rata value would amount to MTL 4,450, approximately EUR 10,369. 13. On 14 May 1999 the applicant’s predecessor instituted ordinary civil proceedings. He contended that the order of expropriation had not been made for a public purpose, since the land had remained unused and the purpose put forward, namely the construction of housing units for third persons, could not be considered to be in the public interest. In consequence, they requested that the expropriation be declared null and void. 14. On 5 March 2004 the Civil Court dismissed the claim, holding that it had not been proved that the expropriation had been in contravention of the law, namely the Land Acquisition (Public Purposes) Ordinance. 15. No appeal was lodged against this judgment. 16. On 23 July 2004 the owners of the land (including the applicant) instituted constitutional redress proceedings. They claimed a violation of their rights under Article 1 of Protocol No. 1 to the Convention in that the expropriation had not been carried out for a public purpose, since the land had remained unused for twenty-five years and the purpose put forward, namely the construction of housing units for third persons, could not be considered to be in the public interest. They further argued that the measure had not been proportionate in view of the compensation offered and that they should be compensated according to the market value of the land at that date. 17. On 20 October 2008 the Civil Court (First Hall) in its constitutional jurisdiction found a violation of Article 1 of Protocol No. 1 to the Convention and awarded the owners EUR 50,000 in compensation for non-pecuniary damage. It held that the land had originally been taken in the public interest, namely for the housing project, construction of which, however, had only recently started. However, this public purpose had not been pressing, since the land had remained unused for twenty-five years, during which the authorities had not initiated compensation proceedings. In consequence the owners’ property rights had been breached. Lastly, noting that the owners were not calling into question the relevant compensation provisions of the law, but simply arguing what compensation should be payable, it refused to take cognisance of the claim regarding compensation for pecuniary damage, since the amount payable still had to be determined by the LAB. The expenses were to be borne by both parties. 18. By a judgment of 30 April 2009, the Constitutional Court, on appeal, altered the first-instance judgment in part. While considering that a public interest had existed originally, and had persisted since indeed some apartments had eventually been built, it confirmed that there had been a delay on the part of the authorities in initiating proceedings, which had been to the detriment of the owners, and this constituted a breach of their property rights. However, it noted that although the owners had an available remedy to speed up the process, they had done nothing about it. In consequence, while upholding the finding of a violation, the Constitutional Court reduced the award in respect of non-pecuniary damage to EUR 15,000. It further confirmed that the complaint regarding compensation for pecuniary damage was premature, that issue still having to be determined by the LAB. It ordered the expenses to be borne by both parties. 19. The Land Acquisition (Public Purposes) Ordinance (Chapter 88 of the Laws of Malta), in so far as relevant, reads as follows: Section 3 “The President of Malta may by declaration signed by him declare any land to be required for a public purpose.” Prior to the amendments introduced in 2002, the Land Acquisition (Public Purposes) Ordinance provided that: Section 12(1) “...the competent authority shall give to the owner a notice ... by means of a judicial act, stating the amount of compensation, as shown in a valuation to be attached to the notice to treat.” Section 13(1) “The amount of compensation to be paid for any land required by a competent authority may be determined at any time by agreement between the competent authority and the owner (...).” Section 22 “If the owner shall by a judicial act decline to accept the offer made by the competent authority, the matter shall be brought before the Board by an application to be made by the competent authority, and the Board shall give all necessary orders or directions in accordance with the provisions of this Ordinance.” 20. Article 1078 (b) of the Maltese Civil Code, Chapter 16 of the Laws of Malta, in so far as relevant, reads as follows: “Where the time for the performance of the obligation has been left to the will of the debtor, or where it has been agreed that the debtor shall discharge the obligation when it will be possible for him to do so, or when he will have the means for so doing, the following rules shall be observed: (b) if the subject-matter of the obligation is other than the payment of a sum of money, the time within which the obligation is to be performed shall be fixed by the court according to the circumstances.” | 0 |
dev | 001-83910 | ENG | LTU | ADMISSIBILITY | 2,007 | PELECKAS v. LITHUANIA | 4 | Inadmissible | null | The applicant, Mr Algis Peleckas, is a Lithuanian national who was born in 1960 and lives in the Alytus region. The Lithuanian Government (“the Government”) were represented by their Agent, Ms E. Baltutytė. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is a veterinary doctor. On 10 February 2000, while driving to his work place in the countryside, the applicant was stopped by two policemen, MN and ST. The policemen asked for the applicant’s papers. Having established that the applicant had no driving licence, MN took the wheel of the applicant’s car. ST followed him in the police car, with the applicant sitting in the back seat. They drove several kilometres and stopped on a side road in the countryside. The applicant presented the following account of the subsequent events: The policemen asked the applicant to take an alcohol test. The applicant requested that they replace the tip of the alcotest (breath-analyser), as it might have been used by another person. This request allegedly infuriated the policemen. It appears that the applicant nonetheless took the test, and he was found not to be under the influence of alcohol. MN made a written record of an administrative offence, warning the applicant that he would be fined in the amount of LTL 1,000 (about EUR 290) for driving without a licence. The applicant having commented on the allegedly disproportionate amount of the fine, ST hit him on the neck. The applicant jumped out of the police car, attempting to escape. The policemen pursued him and apprehended him by using tear-gas. The applicant was then brought to the ground by a strong blow to the face by ST. The policemen then continued to beat the applicant by kicking him on his thighs, elbows, chest, back, abdomen and crotch. The policemen having subsequently handcuffed the applicant while he was lying face-down on the ground, ST sat on him and inflicted several blows to his head. At the same time, MN kicked his thigh. The applicant was then taken to the police station, where the policemen continued beating him. After the applicant’s release from the police station several hours later, he immediately went to the hospital where he was treated. Upon the applicant’s request, on 14 February 2000, he was examined by a medical expert. The expert found a scratch on the applicant’s vertex (2×1 mm) and forehead (5×8 mm), bruises on his right cheek (10×5 mm) and left forearm (170×8 mm), and a fracture of his left elbow. The expert noted that the injuries had been made by hard, blunt objects. The fracture resulted in a long-term impairment of the applicant’s health. On 15 February 2000 the applicant filed a complaint against the police, alleging ill-treatment. On the same date the prosecution took his statement and ordered an expert medical examination, which took from 21 February 2000 to 13 March 2000. The expert mentioned the same injuries as those in the examination of 14 February 2000, noting in addition that the applicant had a scratch on his upper lip. The expert opined that the injuries had been made by at least five impacts or blows. He could not unequivocally identify the mechanism whereby the injuries had been incurred. He noted that the fracture of the applicant’s elbow and the bruise on his left forearm could have resulted either from kicking or twisting the applicant’s arms behind his back, or by him falling on the ground and hitting his arm against a hard surface. The scratch on the applicant’s forehead could also have been the result of the applicant hitting the ground with his head. On 21 March 2000 criminal proceedings were instituted against ST, who was charged with abuse of office (Article 287 § 1 of the Criminal Code), by causing the applicant medium bodily harm. In particular, ST was suspected of having kicked the applicant while he was lying on the ground, and having hit the applicant on his head. The applicant took part in the proceedings as the victim. He did not claim pecuniary or non-pecuniary damages. The charges brought against MN were withdrawn, there being no indication of a crime having been committed by him. The applicant did not appeal against that decision, and MN then took part in the other proceedings as a witness, along with several other eyewitnesses to the events. From 23 May to 30 June 2000, the medical expert examination was repeated upon the initiative of the prosecution. The expert mentioned the same injuries as those determined at the last examination and reiterated that the injuries had been made by no less than five impacts or blows. He further explained that the scratches on the applicant’s forehead, vertex and lip, as well as the bruises on his right cheek, could have been caused either by the administration of blows or by the applicant hitting himself against hard objects. As to the fracture of his elbow, the expert opined that it was ‘unlikely’ that it could have been the outcome of hitting or falling, but had ‘most likely’ occurred when the arm of the applicant had been twisted behind his back in order to handcuff him. The bruise on his left forearm could have appeared after the tissue of the elbow had been injured by the fracture. On 8 August 2000 the prosecutor requested the applicant to undergo a psychiatric examination, referring to the possibility that, during the incident, he might have suffered epileptic seizures. The applicant was brought to the clinic, but the examination did not take place due to the absence of a qualified expert. Eventually, no examination was carried out, as the applicant refused to report to the clinic. The investigation into the incident included the questioning of more than 38 witnesses, several confrontations, the on-site verification of evidence, the examination of the police car allegedly damaged by the applicant’s resistance and other measures. On 5 March 2001 the Alytus District Court acquitted ST, holding that his actions had not gone beyond those necessary in the circumstances. It accepted the version of the events given by the policemen. In particular, it was established that the applicant had been the first to attack ST, hitting him on the nape of the neck while sitting in the back seat of the police car. ST’s version was corroborated by the medical evidence that he had sustained a bruise as a result. Thus, it was considered that the applicant had himself provoked the use of force by the policemen, who had then taken the applicant out of the car and had attempted to handcuff him, the applicant having actively resisted the lawful arrest. The applicant’s resistance warranted the use by the policemen of the “special measures” foreseen in Article 43 of the Police Act, in order to handcuff him. The court then referred to the experts’ conclusion that the fracture of the applicant’s elbow could have occurred as a result of his arms being pulled and twisted backwards for handcuffing. The bruises on his face and head could have been the result of the applicant actively resisting the police, whilst falling down and hitting himself against a hard surface. The court did not find it established that the applicant had been kicked or hit while lying on the ground or after being handcuffed. The court also took account of the video recording, taken by the CCTV camera in the police station, showing the applicant’s continued resistance. The court’s conclusions were essentially based on the submissions of the accused officer, ST, as well as those of MN. The applicant and the prosecutor appealed. On 1 May 2001 the Kaunas Regional Court rejected their appeal. The court noted that the applicant had been the first to have recourse to violence, the subsequent use of force by ST being the consequence of the applicant’s aggressive behaviour. The court also held that there was no evidence that ST had purposefully injured or tortured the applicant when trying to handcuff him. It further reiterated the lower court’s conclusions as to the origin of the applicant’s injuries. Finally, the court noted that the different version of the incident given by other witnesses might have been distorted by their emotional reaction to the events. The Office of the General Prosecutor and the applicant lodged cassation appeals. The prosecution argued in particular that the policemen’s version, according to which the applicant had assaulted ST, was not credible. The applicant had been sober, he had not disputed the fact of driving without a licence, and he had cooperated with the policemen while they wrote up the administrative offence. Moreover, the applicant had been alone. Therefore it was highly dubious that he could have assaulted two policemen. The courts had unreasonably dismissed the submissions of three independent witnesses, and based their conclusions on the allegations of ST and MN, ignoring the fact that they both had a clear interest in the outcome of the proceedings. On 23 October 2001 the Supreme Court quashed the appellate decision, remitting the case for a new examination by the appeal court. The Supreme Court noted inter alia: “[T]he trial court unconditionally believed only the version of the defendant and his colleague, and dismissed the submissions of other witnesses on the ground that they had been contradictory. However, no essential contradictions were specified ... The courts failed to assess fully whether the policeman had overstepped the legitimate limits of the use of force. Article 5 of the Police Act authorises the use of force against persons who refuse to submit to the lawful requirements of the police. Force can be used only insofar as it is necessary to execute a professional duty, and only after all other possible means have proved themselves to be ineffective. Article 41 of the same law authorises the use of “special measures” (specialiosios priemonės) only in order to stop an activity giving rise to a danger to society, or to an arrest, bringing the person engaged in such activities to the police station. “Special measures” may be used only having regard to the nature of the offence, the personality of the offender and the particular circumstances of the situation. There is also an obligation to make efforts to avoid severe consequences, as well as to warn the person before using such measures against him. The courts did not consider the actions of ST in the light of the requirements of the above law, or those of the Rules on Road Traffic Police [of 26 March 1999]; the courts failed to give reasons for their conclusions regarding the right to use force, its aims and limits. [The applicant and ST] gave different accounts of the events that led to the fight. If ST’s version - that the applicant had violently resisted police demands - were accepted as truth ... there is no doubt that criminal proceedings should have been instituted against him. However, that was not the case. Nor was [the applicant] held liable for an administrative violation ... The court of first instance acknowledged that force had been used against the applicant by ST, in the form of applying “special measures”. However, the courts had failed to specify which particular measures had been used. ST had submitted ... that he had only pushed the applicant to the ground once, had twisted his arms behind his back, and had put the handcuffs on with the assistance of MN. This ... use of force clearly contradicts the evidence given by the medical experts, who had established that the injuries to the applicant had been caused by way of no less than five blows. The fracture of the elbow might have been caused ... by twisting the arm behind the applicant’s back and putting on the handcuffs. The applicant had also sustained other injuries. However, the courts failed to give a reasonable explanation as to the way in which the other injuries may have been caused. Assuming [the truth of] ST’s version that he had only brought the applicant down once, it remains unclear how a wide scratch on the applicant’s vertex and the injuries [elsewhere on his body] were caused, as they must have originated from separate actions. [The applicant’s version of the cause of those injuries] does not contradict the submissions of witnesses. Still, the court refused to believe them, and dismissed their submissions without giving a reasonable explanation, notwithstanding the fact that none of those witnesses had had any interest in giving false evidence.” On 3 June 2002 the Kaunas Regional Court examined the case at the appeal level, upholding ST’s acquittal. On 10 December 2002 the Supreme Court dismissed the applicant’s cassation appeal. The courts concluded that the applicant had assaulted ST by hitting him on the nape of the neck, and that the policemen had properly exercised their right to use force. Moreover, it was deemed highly improbable that ST could have hit the applicant while he was in the back of the police car. The courts recognised that ST had not used excessive force, and that the applicant had not been beaten after being forced to the ground and handcuffed. They concluded that the evidence had been insufficient to establish ST’s guilt. The submissions of the applicant were considered incoherent and unreliable. While the applicant had stated during his early questioning that he had been hit and kicked on various parts of his body, subsequently he had adjusted his version in accordance with the results of the expert examinations. The evidence given by other independent witnesses was also dismissed as being too incoherent to be relied on. The following version of the events of 10 February 2000 and their legal assessment were established by the courts. The applicant used violence against ST in the police car, while the latter was performing his official duty. He refused to obey the order to get out of the car. When the policemen were trying to take him out by force, the applicant was kicking with his legs, breaking a door-handle. Nor did he yield after being taken out of the car. Instead, he grabbed the policemen’s clothes and attempting to hit MN in the face. He was thus brought down close to the police car, his hands being twisted behind his back, and he was handcuffed. As a result, the applicant sustained bodily injuries. ST did not cause any injury deliberately, other than to effect the applicant’s submission. The use of combat action (kovinių veiksmų panaudojimas) in these circumstances was provoked by the unlawful actions of the applicant. There were no other measures which the officers could have employed in view of the applicant’s resistance. In these circumstances, ST did not exceed his authority as a police officer. The courts also explained the origin of the injuries sustained by the applicant in the following way: (a) The scratch on the applicant’s vertex (2×1 mm) must have resulted from the applicant hitting his head on the ground during the conflict; it may not have been the outcome of direct blows with a fist, as alleged by the applicant, because in that case he would have sustained larger bruises. (b) While the experts were not able to give a definite answer as to the origin of the fracture of the applicant’s elbow, they admitted that it may have been the result of ST and MN twisting his arms behind his back in order to handcuff him. The version of the applicant being kicked was thus dismissed. (c) The bruises on the applicant’s cheek (10×5 mm) and forehead (5×8 mm) could also have been the result of the applicant having been forced to the ground, in the course of his resistance to the policemen while they were trying to handcuff him. This version did not contradict the results of the medical examinations. Thus the applicant’s allegation that he had suffered direct blows to his face was refuted. (d) Insofar as the applicant had alleged that he had been hit and kicked on other parts of the body, no signs of other blows were detected in support of these submissions. It appears that no charges were brought against the applicant for his refusal to submit to the lawful requirements of the police, despite the fact that a report to this effect had been filed by officers ST and MN right after the incident. Article 5 of the Police Act as applicable at the material time provided: “... If the demands of a police officer are not complied with, the officer shall have the right to use force (panaudoti prievartą), but only to the extent necessary to perform his/her official duties and only after all measures of persuasion have proved to be ineffective. ...” Article 34 of that Act envisaged the right of the police officer to order the offenders to discontinue their unlawful activities, failing which and provided all measures of persuasion were exhausted, the use of force was permitted. Article 41 of the Police Act further stated: “...The police shall use special measures ..., in order to discontinue actions that endanger the public or to apprehend a perpetrator of such actions and bring him/her to the police station. ... When using special measures ... an officer shall take into account the nature of the offence, the personal features of the offender and other particular circumstances of the situation. ... [T]he police officers shall try to avoid detrimental consequences. Before using special measures ..., and if the circumstances allow, the person concerned shall be given a warning ...” Article 43 of the Police Act listed as “special measures”, inter alia, handcuffs, combat action (kovinių veiksmų panaudojimas) and gas. It specified that: “The police shall have the right to use handcuffs in order to apprehend the perpetrator of dangerous actions and to take him/her to the police station, when there are grounds to believe that he/she can resist or try to evade the arrest. Handcuffs can be used when ... the actions of a person cause danger to him/herself or other people. Combat actions can be used in order to detain a person who has committed dangerous actions or to take him/her to the police station, when such a person resists arrest or tries to evade it, as well as in cases where an offender intentionally refuses to obey the lawful requirements or resists the lawful actions of the police. ... Gas can be used [inter alia] during the arrest ...” Article 287 § 1 of the Criminal Code as then in force punished abuse of office. | 0 |
dev | 001-23384 | ENG | AUT | ADMISSIBILITY | 2,003 | MEISCHBERGER v. AUSTRIA | 4 | Inadmissible | Christos Rozakis | The applicant, Mr Walter Meischberger, is an Austrian national, who was born in 1959 and lives in Vienna. He is represented before the Court by Mr J. Hintermayr, a lawyer practising in Linz. The facts of the case, as submitted by the parties, may be summarised as follows. On 13 October 1994 the Innsbruck Public Prosecutor’s Office opened preliminary proceedings against N.M. on suspicion of tax evasion. On 28 October 1994 the Innsbruck Regional Court (Landesgericht) extended these proceedings to four other suspects including the applicant. He was suspected of having, in June 1994, as the representative of football player P.S., incited N.M. who was then the president of the Tirol Football Club to declare P.S.’s salary at a relatively low level and to pay him 3 million Austrian schillings (ATS) without declaring them, thus, avoiding salary tax to be paid. The applicant was represented by counsel in these and the subsequent proceedings. Also on 28 October 1994, the Public Prosecutor requested the Regional Finance Directorate (Finanzlandesdirektion) to investigate the case. On 6 February 1995 the Regional Finance Directorate, after having questioned the applicant as a suspect, submitted the minutes. Subsequently, after having carried out tax assessment proceedings concerning the Tirol Football Club, it submitted an interim report on its investigations. On 28 November 1995, the Regional Finance Directorate submitted its final investigation report. On 12 February 1996 the investigating judge summoned the applicant as a suspect to appear on 27 February 1996 for questioning. Upon the applicant’s request the hearing was postponed to 1 March. The applicant did not appear and the questioning took place a week later, on 8 March 1996. Meanwhile, the investigating judge had requested the Vienna Regional Criminal Court to question two witnesses by way of judicial assistance. On 3 June 1996 the Vienna Regional Court returned the file to the Innsbruck Regional Court, which submitted it to the Public Prosecutor on the following day. On 12 June 1996 the Public Prosecutor requested the Regional Tax Office to submit further information, which it did on 3 July. On 23 July 1996 the preliminary investigations against N.M. were extended to include a further charge. N.M. unsuccessfully appealed against this decision. On 6 December 1996 the indictment against the applicant and four coaccused was preferred. The applicant was charged with aiding and abetting salary tax evasion contrary to sections 11 and 33 § 2 (b) of the Tax Offences Act (Finanzstrafgesetz). On 28 January 1997 the Innsbruck Court of Appeal (Oberlandesgericht) dismissed the applicant’s objection (Einspruch) against the indictment. On 10 February 1997 the presiding judge fixed 6 May as date for the trial. On 12 February 1997 the applicant and one of his co-accused requested that the proceedings be transferred to the Vienna Regional Criminal Court. Thereupon, the trial scheduled for 6 May 1997 was cancelled. On 16 April 1997 the Supreme Court (Oberster Gerichtshof) dismissed the request for transfer. On 5 August 1997 the Innsbruck Regional Court held the trial against the applicant and his co-accused. The applicant pleaded not guilty. The Public Prosecutor submitted an expert opinion concerning questions of tax law and a number of witnesses were heard. Further, the applicant submitted an expert opinion on questions of tax law. At the close of the hearing the court convicted the applicant of aiding and abetting salary tax evasion contrary to sections 11 and 33 § 2 (b) of the Tax Offences Act and imposed a fine of ATS 500,000 on him, part of which was suspended on probation. On 10 October 1997 the applicant filed a request for rectification of the trial minutes. On 20 October 1997 the Innsbruck Regional Court partly granted the applicant’s request and made a number of additions to the minutes. On 29 October 1997 the written version of the Innsbruck Regional Court’s judgment of 5 August was served on the applicant. On 30 October 1997 the applicant filed a second request for rectification of the minutes, which remained unsuccessful. On 26 November 1997 the applicant filed a plea of nullity and an appeal. On 23 February 1998 the applicant, represented by a second counsel, supplemented his plea of nullity. On 16 December 1998 the Supreme Court held a hearing and dismissed the applicant’s and his co-accused’s pleas of nullity and their appeals. The Supreme Court noted at the outset that one of the applicant’s coaccused had complained that section 33 § 2 (b) of the Tax Offences Act referred to provisions of the Income Tax Act 1972 and was, thus, no longer applicable at the time of the offences, as meanwhile the Income Tax Act 1988 had entered into force. It observed that if this assertion was correct it would affect the convictions of all five co-accused. However, the Supreme Court found that section 33 § 2 (b) of the Tax Offences Act contained a so-called dynamic reference, i.e. at any given time it referred to the Income Tax in the version in force at that time. Moreover, it had to be read in conjunction with section 111 of the Income Tax Act 1988 according to which the provisions of that Act replaced the corresponding provisions of the Income Tax Act 1972 referred to in any other law. Thus, the legal basis for all co-accused’s conviction was sufficiently clear. The Supreme Court’s decision was served on the applicant on 1 February 1999. | 0 |
dev | 001-101872 | ENG | SVK | CHAMBER | 2,010 | CASE OF MAJAN v. SLOVAKIA | 4 | Violation of Art. 6-1 | David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | 4. The applicant was born in 1944 and lives in Rimavská Baňa. 5. The applicant's father was a member of an agricultural co-operative. He died in 1995. 6. The cooperative underwent a transformation and a monetary value of the membership interests of individual members was established. In a decree of 4 September 1998 the co-operative certified the financial value of the ownership interest that had once belonged to the applicant's father. 7. The applicant subsequently made a claim for compensation in respect of his father's membership interest (see below). 8. On 3 March 1998 the Banská Bystrica Regional Court declared the co-operative insolvent. 9. On 25 June 1998 the applicant registered his compensation claim in the insolvency proceedings. 10. On 18 May 1999 the regional court held a hearing (prieskumné pojednávanie) with a view to establishing the claims of the different creditors. At the hearing the receiver rejected the applicant's claim on the ground that he had filed it in his own name but had failed formally to show that the claim, which had originally belonged to his father, had actually devolved on him. The applicant was referred to the possibility of seeking judicial establishment of his claim by way of a separate action (incidenčná žaloba). The applicant brought such an action and was successful (see below). 11. In the following period, the regional court agreed to the sale of the co-operative's individual assets. 12. On 1 December 2005 a final report on the sale of the co-operative's assets was submitted to the regional court. It was amended on 14 March 2006 and displayed on the regional court's official notice board on 6 March 2007. 13. On 4 April 2007 a hearing took place. On 18 October 2007 a meeting of the insolvency creditors took place and a new receiver was appointed. 14. On 21 June 2010 the applicant informed the Court that the insolvency proceedings were still pending. 15. On 1 June 1999 the applicant brought an action against the insolvency receiver in the regional court seeking judicial establishment of his compensation claim. 16. On 30 April 2002 the regional court granted the action and decided that the applicant had a claim in an amount equivalent to 18,537 euros. The applicant alleged that the judgment had not been served on him but on his daughter and therefore had not yet become final. 17. The Government stated that the judgment had become final on 3 July 2002. 18. On 8 July 2003 the applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court in respect of the length of the insolvency proceedings and the proceedings in the action for establishment of his claim. 19. On 10 September 2003 the Constitutional Court declared the complaint inadmissible. As for the proceedings in the applicant's action, it observed that they had ended in 2002. They had thus no longer been pending at the time when the constitutional complaint had been lodged. In these circumstances, in line with the Constitutional Court's established practice, the complaint of the length of those proceedings was manifestly illfounded. As for the insolvency proceedings, the Constitutional Court observed that the sale of the co-operative's assets was still under way and had not yet been completed. As the Constitutional Court had not found any undue delays, it concluded that the complaint in respect of the insolvency proceedings was manifestly ill-founded. | 1 |
dev | 001-87175 | ENG | TUR | CHAMBER | 2,008 | CASE OF FOKA v. TURKEY | 3 | No violation of Art. 3;No violation of Art. 5;Violation of Art. 10;Pecuniary damage - claim rejected;Non-pecuniary damage - finding of a violation sufficient | David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä | 7. The applicant was born in 1947 and currently lives in Nicosia. 8. At the material time she was living alone in her family house in the village of Ayia Triada, Yialloussa, in the Karpas region of northern Cyprus. She was a teacher at the Greek-Cypriot elementary school in that village. 9. The parties disagree as to the facts of the case. 10. In December 1994 the applicant went to spend the Christmas holidays with members of her family in southern Cyprus. On 13 January 1995 she was transported by a Red Cross bus with other “enclaved” Greek-Cypriots to the Ledra Palace crossing point in Nicosia. From there they were due to be taken to Ayia Triada by a bus driven by a Turkish settler. 11. At the barricade, which was guarded by Turkish and/or “Turkish Republic of Northern Cyprus” (“TRNC”) police and customs officers, the applicant and the other five or six enclaved Greek-Cypriot women who were on the bus with her were searched. When the customs officers asked to search the applicant again, she refused, claiming that she had already been searched and nothing had been found. She was then taken to a small room near the barricade and was told that she would be searched by police officers. The applicant continued to refuse to submit to another search. The officials then tried to force the applicant into a small private car. She resisted and started shouting. The officials covered her mouth with their hands and started hitting her on her arms and feet in order to force her into the car. They pushed her in the car headfirst and then took hold of her legs. They managed to put her in the car with her legs upwards and feet pointing towards the roof. 12. She was subsequently taken to a building that appeared to be a police station. There her bag was thoroughly searched and whenever she tried to see what the officers were doing she was hit on the head and shoulders by a person whom she was able to identify from the discussions held among the officials present as a member of the Turkish secret service. She was then taken to an adjacent room where she was interrogated and mocked. When the interrogation was over, the bag was returned to her empty. The officers also kept part of her money – 120 Cyprus pounds (CYP) of the CYP 300 she had on her. 13. Afterwards, the officers took her in the same car to the bus that would have taken her to Ayia Triada. As she did not feel well, she asked to be allowed to return to southern Cyprus. However, the officers started to hit her once again and forced her into the bus. One of the women on the bus told them to “let her go or you will kill her”. 14. Upon her return to Ayia Triada, the applicant asked to be taken to a female Turkish-Cypriot doctor in nearby Yialoussa but her request was refused. The next day a Greek-Cypriot took the applicant to the above-mentioned doctor. The doctor offered her medical treatment but refused to certify the existence of bruises on her body. 15. During the nights that followed stones were thrown at her house. 16. On 18 January 1995 the applicant was visited at the school of Ayia Triada by representatives of Doctors of the World, to whom she showed the bruises she had on her legs, hands and head. In its relevant parts, the report of Doctors of the World reads as follows: “Although [Eleni Foka] knew we were coming and had agreed to meet us, nevertheless when she first saw us she became very nervous. Her respiration increased, and she seemed to have trouble breathing. We reassured her that we had come from ... Doctors of the World but it still took her about 10 minutes to be able to speak normally. The first thing she did, somewhat frantically, was to show us the bruises up and down her legs which she received, she says, as a result of being beaten by the police. At the time of our visit, she said the beating had occurred over one week ago. She also said the police were from the neighbouring town of Jalousa, only two kilometres away from Sipahi. She claims that the reason she was beaten is that she had tried to bring across the border some textbooks for the children and some religious crosses, after having visited relatives [on] the Greek side of Cyprus over the Christmas holidays. She claims she was detained, beaten, interrogated many times, and released approximately 12-18 hours later. She also claims that she is experiencing a lot of pain in the back of her head, her neck and her lower back as a result of this beating. She says that the police came from the station of Jalousa and systematically harass her; they often arrive in the village, and either follow her or simply walk around in what she interprets as an attempt to intimidate her and others who might have rebellious thoughts or want to help her. She claims the police keep her under constant surveillance.” 17. A week later, a representative of the United Nations Peacekeeping Force in Cyprus (UNFICYP) visited the applicant and reported that she had bruises and blood stains on her shins and thighs. On 20 January 1995 a medical officer of UNFICYP was denied permission to visit the applicant. The officer was eventually granted permission on 30 January 1995. Accordingly, the medical officer visited the applicant and examined her on 31 January 1995. The applicant appended a “note to the file” in this respect by the Humanitarian Branch of the Headquarters of UNFICYP dated 13 February 1995. This note read as follows: “On 18.1.95 the Humanitarian Branch was informed by the Office of the Presidential Commissioner for Humanitarian Affairs that E.Ph. was ill treated and arrested by TkCyp Police when crossing to the north on 13.1.95 after a week’s stay in the south and that a team of the “Doctors of the World” has visited her in Ay. Trias on 18.1.95 to question her about her mistreatment. On the same day Hum. O. sector 4 and the interpreter visited E. Ph. in the school as requested by CHO. She stated that she was beaten by hand from TCPE in the office at Ledra ChPt. and another office somewhere in Nicosia on the head, neck and back. She said that on 18.1.95 about 12:00 Hrs a team of 4 persons (2 male doctors, 1 lawyer and one official from a presidential palace not nearer described) has been visiting her. She gave the same statement to them as NWP and showed bruises and blood effusions on shin bones and thighs as she did to NWP. The team of the “doctors of the world” left her after 30 minutes and they used the English language only while speaking to Mrs E. Ph. NWP then proceeded to Yialusha Pol station for further clarification. All TCPE officers however were very reluctant in answering NWP questions and very reserved. On 20 January 1995 afternoon UN Personnel from the LP in Leonarisso has been sent to TCPE Yialusha to inform that SHO accompanied by Medical Officers Sec 4 intends to visit E. Ph. again in order to have her injuries examined. However permission was not granted at that stage. CHO tasked AUSTCIVPOL to investigate and liaise with TKCYP police at NIC HQ in order to get permission for the medical exam. ‘Clearance” was granted on 30.1.95 and the message relayed to Hum Cell Sector 4 to set up the examination on the following day which was then carried out successfully. See Med. Rep. SMO Sec 4 dated 31.1.95 plus attached note of SHO (4). Investigation on the confiscated items is still ongoing by AUSTCIVPOL.” 18. The applicant claimed that she had been under constant surveillance by the local police and subjected to further harassment, including threats that she would be forcibly expelled from northern Cyprus or killed. 19. In a letter dated 10 August 2000 the applicant’s lawyer informed the Court that in May 1997 the applicant had needed to seek urgent medical treatment in southern Cyprus. However, the applicant had then not been allowed by the Turkish military and the “TRNC” authorities to return to her home and property in Ayia Triada and had therefore been living in Nicosia ever since. 20. On 16 December 1994 the applicant, along with two other teachers from the Karpas elementary school and nine students, crossed over to southern Cyprus via the Ledra Palace checkpoint. Two days later the group flew to Greece on an excursion organised by the Greek-Cypriot and/or Greek authorities for a few days in order to take part in various anti-Turkish campaigns that received considerable publicity. 21. On 13 January 1995, at about 12.30 p.m., the applicant, who was returning from southern to northern Cyprus, was subjected to routine police and immigration control by Turkish-Cypriot officials at the Ledra Palace checkpoint. When the officers asked the applicant if she had anything to declare she said she did not. When they asked her to give them her handbag for search purposes, she refused to do so, thus preventing the officers from executing their duties and committing an offence under “TRNC” laws (section 177 of the Customs and Excise Law, no. 37 of 1983). 22. When a female police officer arrived, the applicant continued to resist. She was then requested to accompany the officials to the Lefkoşa police headquarters (Saray Önü) for further examination. She once again resisted and started kicking and shouting that she did not recognise any legal authority in northern Cyprus. Subsequently, she was led to a police car. She refused to get into the car and stated that she wanted to return to southern Cyprus. She was then driven to police headquarters. The Turkish Cypriot police used only force that was reasonable and necessary. The applicant may have caused injury to herself in an effort to resist the body search and efforts to take her to the police station. This was not evident, however, as she was wearing thick dark stockings. 23. Once at the police headquarters, the applicant continued to act irrationally, resisting the police officers and pushing them away. Eventually, a female police officer searched her handbag. She found six silver necklaces and four gold crosses, items that were subject to customs duty and that the applicant had refused to declare. The applicant agreed to pay the equivalent of 9,000,000 Turkish liras as customs duty and/or fine. Furthermore, various other items were found in her bag, such as books and brochures. It was considered that these contained anti-Turkish, racist and defamatory material liable to incite racial hatred and aggravate inter-communal relations. The authorities then attempted to carry out a body search, which the applicant resisted. The applicant attacked the female customs officer, who called for police assistance. During the body search, radio-cassettes were found hidden inside the applicant’s clothing. The authorities kept all the items for the purposes of further examination. The applicant was detained only for a transitory period to enable completion of the search under more appropriate circumstances and to calm her down. She was not under arrest during this period and was offered refreshments, which she refused to take. 24. Having paid the fine, the applicant returned to her village on the bus with other Greek Cypriots. 25. On 15 January 1995 the applicant visited the health centre of Rizokarpasso (Dipkarpaz) and asked for a medical report to certify that she had been beaten. The doctor on duty, not being a private practitioner, offered to examine the applicant if she were intending to lodge a complaint with the police. The doctor would then have examined the applicant and written up her findings on the form supplied by the police. However, the applicant failed to complain to any Turkish-Cypriot authority and did not visit any doctor before or after 15 January 1995. On 31 January 1995 she was examined by a United Nations doctor in the presence of a Turkish-Cypriot doctor at the health centre in Rizokarpasso. The Government appended a UN medical report of a routine interview and examination of the applicant by a UN medical officer in the presence of a local doctor on 31 January 1995. The report identified “scratches on the applicant’s back [and] right calf”. 26. The four “Doctors of the World”, one US, one Swedish and two French citizens, had entered the “TRNC” as tourists intending to go to Kyrenia but upon entry, contrary to their declaration to the “TRNC” authorities, they had hired a car and apparently visited the area in question. 27. On 25 January 1995 the books, brochures and photos that had been taken from the applicant on 13 January 1995, were returned to her in the presence of the Greek-Cypriot representative of the village. However, the Turkish-Cypriot authorities kept three cassettes, two paperbacks, a diary and a postcard which they considered as likely to provoke racial hatred and anti-Turkish enmity. The cassettes, which had been recorded in Greece, contained songs and poems dedicated to the so-called Pontus Greeks who allegedly lived in the Black Sea region of Turkey, to the National Organisation of Cypriot Fighters (EOKA) movement and to those killed in terrorist activities carried out against the British. The other articles contained propaganda and a map of Cyprus showing the border area marked in blood. 28. In March 1997, when the applicant retired from her teaching post, arrangements were made between the Greek-Cypriot and Turkish-Cypriot authorities to replace her as teacher. The applicant has been living in southern Cyprus ever since. 29. As from 23 April 2003 new measures had been adopted by the “TRNC” authorities regarding crossings from northern to southern Cyprus and vice versa through specified checkpoints. Greek Cypriots now had free access to the north and Turkish Cypriots to the south upon presentation of an identification document. 30. The Government have produced several documents before the Court. In so far as relevant, their content can be summarised as follows. 31. In his report, police officer Pervin Gürler stated that the applicant had constantly insulted Turkey and used to bring a Greek flag to school lessons. She was a fanatical nationalist who behaved strangely, pretended to have received death threats and was asocial. She had wanted to enter the territory of “TRNC” without an identification card, passport or other travel document and had tried to avoid the border control. On 29 January 1997 she had been scratched by her cat; the doctors who visited her had diagnosed that she was in good health. 32. In a statement of 3 May 2007, customs officer Sultan Barbaros stated that on 13 January 1995 he was checking bags and luggage of persons crossing at the Ledra Palace border. The applicant had not allowed him to search her bags and had resisted. She had started swearing loudly at the officers and at Turkish people in general. When the custom officers intervened, the applicant had assaulted them. She had then been brought to a police station where she had been fined for having tried to cross the border without declaring the necklaces and the gold crosses. She had paid cash. Although the police had acted in good faith, the applicant had been constantly aggressive towards them and had used racist expressions. 33. Police Sergeant Halit Kocanoglu stated that at the relevant time, it was the general practice of the “TRNC” custom officers to check the bags of people crossing the Ledra palace border and to confiscate goods that needed to be declared but were not. The applicant had refused to have her bag checked and had caused trouble. She had been brought to a police station where her bags had been searched. In addition to the undeclared necklaces and gold crosses, books and tape recordings insulting the “TRNC” and Turkish people in general had been found in her possession and confiscated. During her stay at the police station, the applicant had not been ill-treated or harassed; on the contrary, she had caused problems to the officers and refused everything that was offered to her including water. 34. Police Sergeant Işin Sevindik stated that on 13 January 1995 the applicant had refused to have her bag searched. She had started shouting and had been taken to a police station. After she had paid the fine, she had been taken back to the Ledra Palace entry point. Sergeant Sevindik had not seen the applicant being forced to do anything or being ill-treated. A similar statement was made by Inspector Adem Hasapoglu. | 1 |
dev | 001-70170 | ENG | TUR | CHAMBER | 2,005 | CASE OF SEVGİN AND İNCE v. TURKEY | 4 | No violation of Art. 3;Violation of Art. 5-3;Not necessary to examine Art. 5-4;Violation of Art. 5-5;Violation of Art. 6-1 (composition of state security court);Not necessary to examine remaining complaints under Art. 6;No violation of Art. 13;No violation of Art. 14;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings | null | 4. The applicants were born in 1960 and 1967 respectively and live in Diyarbakır. 5. On 16 November 1993 the applicant was taken into custody by the security forces at the Sağırsu Gendarmerie Command. 6. In a report drafted by the gendarmes and signed by the applicant on the same day, it was stated that he was taken into custody on the basis of information contained in a document found on a PKK terrorist. 7. In his statement taken by the gendarmes on 30 November 1993 the applicant confessed in detail to his involvement in the activities of the PKK. 8. On 1 December 1993 the applicant and five others were examined by a doctor at the Siirt Forensic Department, who concluded there were no traces of blows on their bodies. 9. Later on the same day, the applicant was first brought before the Siirt Public Prosecutor then before the judge at the Siirt Magistrates Court where he refuted his statements dated 30 November 1993 and he contested his involvement in the activities of the PKK. He confessed to having possessed a Kalashnikov rifle without a permit. The court ordered his detention on remand. 10. In his petition dated 2 December 1993 filed with the Siirt Assize Court, the applicant alleged that he had been severely tortured for eighteen days while in police custody. He stated that he had been told to strip, blindfolded, severely beaten and strung up by his arms. Moreover, he objected to the court’s decision to detain him on remand. 11. On an unspecified date the Siirt Public Prosecutor issued a decision of non-jurisdiction as the charges against the applicant fell within the competence of the State Security Courts. 12. On 21 December 1993 the Public Prosecutor at the Diyarbakır State Security Court filed a bill of indictment charging the applicant with engaging in acts aimed at the separation of a part of the territory of the State, under Article 168 § 2 of the Criminal Code and Article 5 of the Prevention of Terrorism Act. 13. At the hearing held on 24 February 1994, the applicant denied the allegations against him and claimed that he had been forced to sign the statements drafted in police custody. The court refused the applicant’s request for release pending trial, in view of the state of the evidence and the nature of the offence of which he was accused. It further decided to join the applicant’s case to the second applicant’s case, as they raised similar issues. 14. On 24 October 1993 the applicant was taken into custody by the security forces at the Siirt Gendarmerie Command. According to the arrest report drafted by the gendarmes and signed by the applicant, he was taken into custody in the village of Koçlu in the course of an investigation concerning the PKK. 15. On 26 October 1993 the applicant took the police officers of the Prevention of Terrorism Department of the Siirt Security Directorate to where he was hiding weaponry, namely a Kalashnikov rifle, a hand grenade and bullets. The police officers later drafted an on-site inspection report, describing the location of the hideout and the weapons found there. 16. In his statement taken by the gendarmes on 3 November 1993, the applicant confessed in detail to his involvement in the activities of the PKK. 17. On 5 November 1993 the applicant and six other suspects were taken to the Siirt Forensic Department for an examination. According to the medical report drafted on the same date, no traces of blows were found on the applicant’s body. 18. On the same day, the applicant was brought before the Siirt Public Prosecutor where he accepted having possessed a rifle, a hand grenade and bullets, but denied having participated in the activities of the PKK. Later he was brought before the Siirt Magistrates Court where he reiterated that he had no involvement in the activities of the PKK. The court ordered his detention on remand. 19. In a petition dated 30 November 1993 filed with the Siirt Assize Court, the applicant refuted all the charges brought against him and requested to be released. He alleged that while he was held in police custody, he had had to accept all the allegations against him as he had been severely tortured. Moreover, he maintained that, as the police officers had threatened him, he was afraid to complain about these acts before the public prosecutor and the judge at the criminal court. 20. On an unspecified date, the Siirt Public Prosecutor issued a decision of lack of jurisdiction as the charges against the applicant fell within the competence of the State Security Courts. 21. On 6 December 1993 the public prosecutor filed a bill of indictment with the Diyarbakır State Security Court, accusing the applicant and six others of having engaged in acts aimed at the separation of a part of the territory of the State. The public prosecutor requested that the applicant be convicted and sentenced under Article 168 § 2 of the Criminal Code and Article 5 of the Prevention of Terrorism Act. 22. On 24 March 1994, upon the request of the judge at the Diyarbakır State Security Court, the Siirt Assize Court took the statements of eight police officers from the Prevention of Terrorism Department of the Siirt Security Directorate, who had questioned the second applicant and had drafted the on-site inspection report. The police officers described the course of events during the on-site inspection. They also maintained that no pressure had been inflicted on the accused. 23. At the hearing of 29 March 1994, the applicants were not present before the Diyarbakır State Security Court. It therefore issued summonses to them for the next hearing, scheduled for 10 May 1994. The court requested that a ballistic examination be carried out by the Diyarbakır Forensic Institute concerning the rifle found in the possession of the second applicant. It continued the applicants’ remand in custody pending trial, but released four other accused persons. 24. At the hearing of 10 May 1994, some of the accused, including the applicants, were present in court. The statements of the police officers who had signed the on-site inspection report were submitted to the court. The court also heard two defence witnesses and asked the accused for their comments. The lawyers of both applicants maintained that they did not have any comments to make concerning these statements. They also demanded the applicants’ release pending trial, contending that the accusations brought against them were unfounded. The court ordered the prolongation of their detention on remand considering the nature of the charges and the content of the case-file. 25. At the nine subsequent hearings which were held between 10 May 1994 and 5 July 1995, the Diyarbakır State Security Court was unable to reach a decision as the relevant ballistic report had not been received. At each hearing, the court rejected the applicants’ requests for release pending trial, in view of the state of the evidence and the nature of the offence. 26. On 25 September 1995 the court received the ballistic report. At the following hearing, held on 21 November 1995, the public prosecutor submitted his opinion on the merits. He proposed that the applicants be convicted and sentenced under Article 168 § 2 of the Criminal Code and Article 5 of the Prevention of Terrorism Act. The court rejected once again the applicants’ request for release pending trial because of the serious nature of the charges and the state of the evidence. 27. At the hearing of 5 December 1995, the Diyarbakır State Security Court was unable to give a final decision as the prison authorities had failed to bring the first applicant to court. On 26 December 1995 and 27 February 1996, the court rescheduled the hearing to a later date in order to obtain this applicant’s final statements. 28. On 26 March 1996 the prison authorities again failed to bring the first applicant before the Diyarbakır State Security Court. His lawyer maintained that the applicant was absent against his will and requested the court to postpone the hearing in order to take his last statements. The second applicant repeated his previous statements. The court convicted the applicants of engaging in acts aimed at the separation of a part of the territory of the State. The court sentenced them to twelve years and six months’ imprisonment under Article 168 § 2 of the Criminal Code and Article 5 of the Prevention of Terrorism Act. The decision was given in the absence of the first applicant. 29. The applicants appealed against the decision of the Diyarbakır State Security Court. 30. On 12 May 1997 the Court of Cassation quashed the decision on the ground that the Diyarbakır State Security Court did not respect the rights of defence during the proceedings. It emphasized in its decision that the court had convicted the first applicant in his absence, depriving him of his right to submit his final defence. It held that, due to the close connection between the accused, it was appropriate to quash the decision in favour of all the accused. 31. On 1 July 1997 the Diyarbakır State Security Court served a summons on the applicants for the following hearing. 32. On 27 August 1997 the court sent a notice to the Public Prosecutor to ascertain the prison in which the applicants were detained and the address of two of the accused who were released pending trial. Moreover, it requested the population registry office to confirm the apparent death of one of the accused. 33. At the hearing of 7 October 1997 the court requested the transfer of the applicants, who were detained in Amasya and Bartın prisons, to the Diyarbakır Prison. 34. On 18 November 1997 the court postponed the hearing once again as the applicants were still not present and the addresses of the other accused were not yet known to the court. 35. On 27 January 1998 and 10 March 1998 the applicants were present before the court. They submitted their opinion concerning the decision of the Court of Cassation. However, as the other accused, who had been released pending trial, failed to appear, the court was once again unable to reach its final decision. 36. The applicants did not attend the following nine hearings. According to the prison records it was their express wish to not to attend. Moreover during this period neither the office of the public prosecutor nor the population register office submitted to the court the requested information concerning the other accused. 37. At the hearing of 6 April 1999, in the presence of only the applicants’ lawyers, the Diyarbakır State Security Court gave its final decision. It convicted the applicants as charged and sentenced them to twelve years and six months’ imprisonment. It acquitted one of the accused and decided to sever the case concerning the others whose addresses were still unknown to the court. 38. On 2 June 1999 the applicants appealed to the Court of Cassation. In their petition they maintained that, according to Article 135 (a) of the Code on Criminal Procedure, statements that are obtained using forbidden methods, such as torture, pressure or ill-treatment, cannot be taken into consideration by the court. They contended that they had signed their statements under pressure, without knowing their contents. They therefore requested the quashing of the State Security Court’s decision, arguing that it was mainly based on their statements taken in police custody. 39. On 9 November 1999 the Court of Cassation upheld the decision of the first instance court. | 1 |
dev | 001-97704 | ENG | GBR | GRANDCHAMBER | 2,010 | CASE OF CARSON AND OTHERS v. THE UNITED KINGDOM | 1 | Preliminary objection dismissed (non-exhaustion of domestic remedies);Preliminary objection allowed (non-exhaustion of domestic remedies);No violation of Art. 14+P1-1 | Christos Rozakis;Dean Spielmann;Françoise Tulkens;Giovanni Bonello;Ineta Ziemele;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Lech Garlicki;Ledi Bianku;Luis López Guerra;Mihai Poalelungi;Mirjana Lazarova Trajkovska;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen;Renate Jaeger;Simon Brown;Zdravka Kalaydjieva | 10. Ms Carson was born in 1931. She spent most of her working life in the United Kingdom, paying National Insurance contributions (NICs) in full, before emigrating to South Africa in 1989. From 1989 to 1999 she paid further NICs on a voluntary basis (see paragraph 37 below). 11. In 2000 she became eligible for a basic State pension of 67.50 pounds sterling (GBP) per week. Her pension has remained fixed at this rate since 2000. Had her pension benefited from uprating in line with inflation, it would now be worth GBP 95.25 per week (see paragraphs 41-42 below). 12. Ms Carson brought domestic proceedings challenging the refusal to uprate her pension (see paragraphs 25-36 below). 13. Mr Jackson was born in 1922. He spent fifty years working in the United Kingdom, paying NICs in full. He emigrated to Canada on his retirement in 1986 and became eligible for a State pension in 1987. His basic State pension was then GBP 39.50 per week, and it has remained fixed at that level since 1987. Had his State pension benefited from uprating since 1987 it would now be worth GBP 95.25 per week. 14. Mrs Stewart was born in 1931. She spent fifteen years working in the United Kingdom, paying NICs in full, before emigrating to Canada in 1964. She became eligible for a reduced State pension in 1991. Her basic State pension was then GBP 15.48 per week, and it has remained fixed at that level since 1991. 15. Mrs Kendall was born in 1913. She spent forty-five years working in the United Kingdom, paying NICs in full, before retiring in 1976. She became eligible for a State pension in 1973, and emigrated to Canada in 1986, at which point her State pension had increased to GBP 38.70 per week. It has remained fixed at that level, whereas the current uprated pension is worth GBP 95.25 (see paragraph 39 below). 16. Mr Dean was born in 1923. He spent fifty-one years working in the United Kingdom, paying NICs in full, before retiring in 1991. He became eligible for a State pension in 1988, and emigrated to Canada in 1994, when his weekly State pension was GBP 57.60. It has remained fixed at that level since 1994. Had it benefited from uprating, it would now be worth approximately GBP 95.25 per week. 17. Mr Buchanan was born in 1924. He spent forty-seven years working in the United Kingdom, paying NICs in full, before emigrating to Canada in 1985. He became eligible for a State pension in 1989. His basic State pension was then GBP 41.15 per week, and it has remained fixed at that level since 1989. Had his State pension benefited from uprating, it would now be worth approximately GBP 95.25 per week. 18. Mr Doyle was born in 1937. He spent forty-two years working in the United Kingdom, paying NICs in full, before retiring in 1995 and emigrating to Canada in 1998. He became eligible for a State pension in 2002. His basic State pension was then GBP 75.50 per week, and it has remained fixed at that level since then. Had it benefited from uprating, it would now be worth approximately GBP 95.25 per week. 19. Mr Gould was born in 1933. He spent forty-four years working in the United Kingdom, paying NICs in full, before retiring and emigrating to Canada in 1994. He became eligible for a State pension in 1998. His basic State pension was then GBP 64.70 per week, and it has remained fixed at that level since then. Had his State pension benefited from uprating, it would now be worth approximately GBP 95.25 per week. 20. Mr Dancer was born in 1921. He spent forty-four years working in the United Kingdom, paying NICs in full, before emigrating to Canada in 1981. He became eligible for a State pension in 1986. His basic State pension was then GBP 38.30 per week, and it has remained fixed at that level. Had it benefited from uprating, it would now be worth approximately GBP 95.25 per week. 21. Mrs Hill was born in Australia in 1940; it appears that she remains an Australian national. She lived and worked in the United Kingdom between 1963 and 1982, paying NICs in full, before returning to Australia in 1982. She made further NICs for the tax years 1992 to 1999, and became eligible for a British State pension in 2000. Her basic State pension was then GBP 38.05 per week. Between August 2002 and December 2004 she spent over half her time in London. During this period, her pension was increased to GBP 58.78 per week, which included an uprating of the basic State pension. When she returned to Australia, her pension returned to the previous level, that is a basic State pension of GBP 38.05 per week. Her pension has remained at this level subsequently. 22. Mr Shrubshole was born in 1933. His contribution record in the United Kingdom qualified him for a full basic State pension in 1998. He emigrated to Australia in 2000, at which point his State pension had increased to GBP 67.40 per week. Save for a period of seven weeks when he returned to the United Kingdom (during which time his pension was increased to take into account annual upratings), his State pension has remained fixed at that level since 2000. Had his State pension benefited from uprating, it would now be worth approximately GBP 95.25 per week. 23. Mr Markiewicz was born in 1924. He spent fifty-one years working in the United Kingdom, paying NICs in full, and became eligible for a State pension in 1989. In 1993 he emigrated to Australia. His basic State pension was then worth GBP 56.10 a week, and it has remained fixed at that level. Had it benefited from uprating, it would now be worth approximately GBP 95.25 per week. 24. Mrs Godfrey was born in 1934. She spent ten years working in the United Kingdom between 1954 and 1965, paying NICs in full, before emigrating to Australia in 1965. She became eligible for a State pension in 1994. Her basic State pension was then GBP 14.40 per week, and it has remained fixed at that level. 25. In 2002 Ms Carson brought proceedings by way of judicial review to challenge the failure to uprate her pension, relying on Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14 of the Convention. 26. In a judgment dated 22 May 2002 (R (Carson) v. Secretary of State for Work and Pensions [2002] EWHC 978 (Admin)), the first-instance judge, Stanley Burnton J, dismissed Ms Carson’s application for judicial review. 27. Applying the principles he drew from the case-law of the Court, the judge found that the pecuniary right that fell to be protected by Article 1 of Protocol No. 1 had to be defined by the domestic legislation that created it. He found that, by the operation of the domestic legislation, Ms Carson had never been entitled to an uprated pension, so that there could be no breach of Article 1 of Protocol No. 1 taken in isolation. 28. The matter nonetheless fell within the ambit of Article 1 of Protocol No. 1 and the judge therefore had to consider whether Ms Carson had suffered discrimination contrary to the provisions of Article 14. The Government initially contended that country of residence was not a prohibited ground of discrimination under Article 14, but this objection was subsequently withdrawn. The judge, however, dismissed Ms Carson’s claim on the ground that she was not in a comparable position to pensioners in countries attracting uprating. The differing economic conditions in each country, including local social security provision and taxation, made it impossible simply to compare the amount in sterling received by pensioners. Moreover, even if the applicant could claim to be in an analogous position to a pensioner in the United Kingdom or a country where uprating was paid subject to a bilateral agreement, the difference in treatment could be justified. 29. Ms Carson appealed to the Court of Appeal, which dismissed her appeal on 17 June 2003 (R (Carson and Reynolds) v. Secretary of State for Work and Pensions [2003] EWCA Civ 797). For similar reasons to the High Court, the Court of Appeal (Simon Brown, Laws and Rix LJJ) found that, since Article 1 of Protocol No. 1 conferred no right to acquire property, the failure to uprate Ms Carson’s pension gave rise to no violation of that provision taken alone. 30. As to the complaint under Article 14 in conjunction with Article 1 of Protocol No. 1, the Court of Appeal noted that the Secretary of State accepted that place of residence constituted a “status” for the purposes of the Article. However, it found that the applicant was in a materially different position to those whom she contended were her comparators. In this connection it was significant that “the scheme of the primary legislation is entirely geared to the impact on the pension of price inflation in the United Kingdom”. Laws LJ continued: “There is simply no inherent probability that price inflation in other countries where expatriate UK pensioners might have made their home (or, for that matter, any other economic factors) will have a comparable effect on the value of the pension to such pensioners. They may do better, they may do worse. There will also, of course, be the impact of variable exchange rates. There will be, if I may be forgiven a jejune metaphor, swings and roundabouts. While I certainly do not suggest there are no principled arguments in favour of the annual uprate being paid to those in Ms Carson’s position, it seems to me inescapable that its being awarded across the board to all such pensioners would have random effects. A refusal by government to put in place a measure which would produce such effects (which in the end is all that has happened here) cannot be said to stand in need of justification by reason if it is being compared with the clear and certain effects of the uprate for UK-resident pensioners.” 31. The Court of Appeal also considered, in the alternative, the question of justification and found that the “true” justification of the refusal to pay the uprate was that Ms Carson and those in her position “had chosen to live in societies, more pointedly economies, outside the United Kingdom where the specific rationale for the uplift may by no means necessarily apply”. The Court of Appeal thus considered the decision to be objectively justified without reference to what they accepted would be the “daunting cost” of extending the uprate to those in Ms Carson’s position. Moreover, the cost implications were “in the context of this case a legitimate factor going in justification for the Secretary of State’s position”, because to accept Ms Carson’s arguments would be to lead to a judicial interference in the political decision as to the deployment of public funds which was not mandated by the Human Rights Act 1998, the jurisprudence of this Court or by a “legal imperative” which was sufficiently pressing to justify confining and circumscribing the elected Government’s macroeconomic policies. 32. Ms Carson appealed to the House of Lords, relying on Article 1 of Protocol No. 1 read together with Article 14. Her appeal was dismissed on 26 May 2005 by a majority of four to one (R (Carson and Reynolds) v. Secretary of State for Work and Pensions [2005] UKHL 37). 33. The majority (Lords Nicholls of Birkenhead, Hoffmann, Rodger of Earlsferry and Walker of Gestinghope) accepted that a retirement pension fell within the scope of Article 1 of Protocol No. 1 and that Article 14 was thus applicable. They further assumed that a place of residence was a personal characteristic and amounted to “any other status” within the meaning of Article 14, and was thus a prohibited ground of discrimination. However, because a person could choose where to live, less weighty grounds were required to justify a difference of treatment based on residence than one based on an inherent personal characteristic, such as race or sex. 34. The majority observed that in certain cases it was artificial to treat separately the questions, firstly, whether an individual complaining of discrimination was in an analogous position to a person treated more favourably and, secondly, whether the difference in treatment was reasonably and objectively justified. In the present case, the applicant was not in an analogous position to a pensioner resident in the United Kingdom or resident in a country with a bilateral agreement with the United Kingdom. The State pension was one element in an interconnected system of taxation and social security benefits, designed to provide a basic standard of living for the inhabitants of the United Kingdom. It was funded partly from the NICs of those currently in employment and their employers, and partly out of general taxation. The pension was not means-tested, but pensioners with a high income from other sources paid some of it back to the State in income tax. Those with low incomes might receive other benefits, such as income support. The provision for index-linking was intended to preserve the value of the pension in the light of economic conditions, such as the cost of living and the rate of inflation, within the United Kingdom. Quite different economic conditions applied in other countries: for example, in South Africa, where Ms Carson lived, although there was virtually no social security, the cost of living was much lower, and the value of the rand had dropped in recent years compared to sterling. 35. Lord Hoffmann, who gave one of the majority opinions, put the arguments as follows: “18. The denial of a social security benefit to Ms Carson on the ground that she lives abroad cannot possibly be equated with discrimination on grounds of race or sex. It is not a denial of respect for her as an individual. She was under no obligation to move to South Africa. She did so voluntarily and no doubt for good reasons. But in doing so, she put herself outside the primary scope and purpose of the UK social security system. Social security benefits are part of an intricate and interlocking system of social welfare which exists to ensure certain minimum standards of living for the people of this country. They are an expression of what has been called social solidarity or fraternité; the duty of any community to help those of its members who are in need. But that duty is generally recognised to be national in character. It does not extend to the inhabitants of foreign countries. That is recognised in treaties such as the ILO [International Labour Organization] Social Security (Minimum Standards) Convention 1952 (Article 69) and the European Code of Social Security 1961. 19. Mr Blake QC, who appeared for Ms Carson, accepted the force of this argument. He agreed in reply that she could have no complaint if the United Kingdom had rigorously applied the principle that UK social security is for UK residents and paid no pensions whatever to people who had gone to live abroad. And he makes no complaint about the fact that she is not entitled to other social security benefits like jobseeker’s allowance and income support. But he said that it was irrational to recognise that she had an entitlement to a pension by virtue of her contributions to the National Insurance Fund and then not to pay her the same pension as UK residents who had made the same contributions. 20. The one feature upon which Ms Carson seizes as the basis of her claim to equal treatment (but only in respect of a pension) is that she has paid the same National Insurance contributions. That is really the long and the short of her case. In my opinion, however, concentration on this single feature is an oversimplification of the comparison. The situation of the beneficiaries of UK social security is, to quote the European Court in Van der Mussele v. Belgium (1983) 6 EHRR 163, 180, para. 46, ‘characterised by a corpus of rights and obligations of which it would be artificial to isolate one specific aspect’. 21. In effect Ms Carson’s argument is that because contributions are a necessary condition for the retirement pension paid to UK residents, they ought to be a sufficient condition. No other matters, like whether one lives in the United Kingdom and participates in the rest of its arrangements for taxation and social security, ought to be taken into account. But that in my opinion is an obvious fallacy. National Insurance contributions have no exclusive link to retirement pensions, comparable with contributions to a private pension scheme. In fact the link is a rather tenuous one. National Insurance contributions form a source of part of the revenue which pays for all social security benefits and the National Health Service (the rest comes from ordinary taxation). If payment of contributions is a sufficient condition for being entitled to a contributory benefit, Ms Carson should be entitled to all contributory benefits, like maternity benefit and jobseeker’s allowance. But she does not suggest that she is. 22. The interlocking nature of the system makes it impossible to extract one element for special treatment. The main reason for the provision of State pensions is the recognition that the majority of people of pensionable age will need the money. They are not means-tested, but that is only because means-testing is expensive and discourages take-up of the benefit even by people who need it. So State pensions are paid to everyone whether they have adequate income from other sources or not. On the other hand, they are subject to tax. So the State will recover part of the pension from people who have enough income to pay tax and thereby reduce the net cost of the pension. On the other hand, those people who are entirely destitute would be entitled to income support, a non-contributory benefit. So the net cost of paying a retirement pension to such people takes into account the fact that the pension will be set off against their claim to income support. 23. None of these interlocking features can be applied to a non-resident such as Ms Carson. She pays no United Kingdom income tax, so the State would not be able to recover anything even if she had substantial additional income. (Of course I do not suggest that this is the case; I have no idea what other income she has, but there will be expatriate pensioners who do have other income.) Likewise, if she were destitute, there would be no saving in income support. On the contrary, the pension would go to reduce the social security benefits (if any) to which she is entitled in her new country. State and private pensions 24. It is, I suppose, the words ‘insurance’ and ‘contributions’ which suggest an analogy with a private pension scheme. But, from the point of view of the citizens who contribute, National Insurance contributions are little different from general taxation which disappears into the communal pot of the consolidated fund. The difference is only a matter of public accounting. And although retirement pensions are presently linked to contributions, there is no particular reason why they should be. In fact (mainly because the present system severely disadvantages women who have spent time in the unremunerated work of caring for a family rather than earning a salary) there are proposals for change. Contributory pensions may be replaced with a non-contributory ‘citizen’s pension’ payable to all inhabitants of this country of pensionable age. But there is no reason why this should mean any change in the collection of National Insurance contributions to fund the citizen’s pension like all the other non-contributory benefits. On Ms Carson’s argument, however, a change to a non-contributory pension would make all the difference. Once the retirement pension was non-contributory, the foundation of her argument that she had ‘earned’ the right to equal treatment would disappear. But she would have paid exactly the same National Insurance contributions while she was working here and her contributions would have had as much (or as little) causal relationship to her pension entitlement as they have today. Parliamentary choice 25. For these reasons it seems to me that the position of a non-resident is materially and relevantly different from that of a UK resident. I do not think, with all respect to my noble and learned friend, Lord Carswell, that the reasons are subtle and arcane. They are practical and fair. Furthermore, I think that this is very much a case in which Parliament is entitled to decide whether the differences justify a difference in treatment. It cannot be the law that the United Kingdom is prohibited from treating expatriate pensioners generously unless it treats them in precisely the same way as pensioners at home. Once it is accepted that the position of Ms Carson is relevantly different from that of a UK resident and that she therefore cannot claim equality of treatment, the amount (if any) which she receives must be a matter for Parliament. It must be possible to recognise that her past contributions gave her a claim in equity to some pension without having to abandon the reasons why she cannot claim to be treated equally. And in deciding what expatriate pensioners should be paid, Parliament must be entitled to take into account competing claims on public funds. To say that the reason why expatriate pensioners are not paid the annual increases is to save money is true but only in a trivial sense: every decision not to spend more on something is to save money to reduce taxes or spend it on something else. 26. I think it is unfortunate that the argument for the Secretary of State placed such emphasis upon such matters as the variations in rates of inflation in various countries which made it inappropriate to apply the same increase to pensioners resident abroad. It is unnecessary for the Secretary of State to try to justify the sums paid with such nice calculations. It distracts attention from the main argument. Once it is conceded, as Mr Blake accepts, that people resident outside the UK are relevantly different and could be denied any pension at all, Parliament does not have to justify to the courts the reasons why they are paid one sum rather than another. Generosity does not have to have a logical explanation. It is enough for the Secretary of State to say that, all things considered, Parliament considered the present system of payments to be a fair allocation of available resources. 27. The comparison with residents in treaty countries seems to me to fail for similar reasons. Mr Blake was able to point to government statements to the effect that there was no logical scheme in the arrangements with treaty countries. They represented whatever the UK had from time to time been able to negotiate without placing itself at an undue economic disadvantage. But that seems to me an entirely rational basis for differences in treatment. The situation of a UK expatriate pensioner who lives in a country which has been willing to enter into suitable reciprocal social security arrangements is relevantly different from that of a pensioner who lives in a country which has not. The treaty enables the government to improve the social security benefits of UK nationals in the foreign country on terms which it considers to be favourable, or at least not unduly burdensome. It would be very strange if the government was prohibited from entering into such reciprocal arrangements with any country (for example, as it has with the EEA [European Economic Area] countries) unless it paid the same benefits to all expatriates in every part of the world.” 36. Lord Carswell, dissenting, found that Ms Carson could properly be compared to other contributing pensioners living in the United Kingdom or other countries where their pensions were uprated. He continued: “How persons spend their income and where they do so are matters for their own choice. Some may choose to live in a country where the cost of living is low or the exchange rate favourable, a course not uncommon in previous generations, which may or may not carry with it disadvantages, but that is a matter for their personal choice. The common factor for purposes of comparison is that all of the pensioners, in whichever country they may reside, have duly paid the contributions required to qualify for their pensions. If some of them are not paid pensions at the same rate as others, that in my opinion constitutes discrimination for the purposes of Article 14 ...” Lord Carswell therefore considered that the appeal turned on the question of justification. He accepted that the courts should be slow to intervene in questions of macroeconomic policy. He further accepted that, had the Government put forward sufficient reasons of economic or State policy to justify the difference in treatment, he should have been properly ready to yield to its decision-making power in those fields. However, in the present case the difference in treatment was not justified: as the Department of Social Security itself accepted, the reason all pensions were not uprated was simply to save money, and it was not fair to target the applicant and others in her position. 37. NICs are payable by employees and the self-employed who earn income over a set limit and by employers in respect of employees earning over a set limit. It is also possible for individuals who are not liable to pay compulsory contributions, because for example they are resident outside the United Kingdom, to make voluntary contributions to protect the right to certain social security benefits. The amounts paid by employees and employers depend on income. In the current tax year (2009/10), employees earning between GBP 110 and GBP 844 per week pay 11% of their income, with an additional 12.8% paid by the employer. The basic rate for the self-employed is currently GBP 2.40 per week and the voluntary contributions rate is GBP 12.05 per week. 38. The social security benefits paid for from NICs include contribution-based jobseeker’s allowance, incapacity benefit (now replaced by employment and support allowance), maternity allowance, widow’s benefit, bereavement benefit, retirement pensions of certain categories, child’s special allowance and guardian’s allowance. These benefits are financed on a “pay as you go” basis from NICs paid in the current year. If necessary, additional funding can be provided from money received in income tax and other forms of taxation, but this has not been necessary since 1998. NICs also partly pay for the cost of the National Health Service. 39. The basic State pension is, in the current financial year 2009/10, GBP 95.25 per week. To qualify for a State pension, it is necessary to have reached State pension age and to have paid or been credited with (or have a husband, wife or civil partner who has been paid or been credited with) NICs for a sufficient number of “qualifying years”. The State pension age is currently 65 for men and 60 for women. It will increase gradually for women from 2010, so that by 2020 it will be 65 for both sexes. At present, men need 44 qualifying years by the age of 65 to get a full basic State pension and women who reach the age of 60 before 2010 need 39 qualifying years. The Pensions Act 2007 reduced the number of qualifying years needed for a full basic State pension to 30 for people who reach State pension age on or after 6 April 2010. A percentage of the full basic State pension is payable to an individual without the full number of qualifying years. To get the minimum basic State pension (25%) it is normally necessary to have 10 or 11 qualifying years. 40. Individuals resident in the United Kingdom who do not have sufficient qualifying years to entitle them to a State pension may be entitled to non-contributory welfare benefits, such as means-tested income support and housing benefit. 41. Under section 150 of the Social Security Administration Act 1992, the Secretary of State is required to make an order each year to increase the basic State pension to maintain its value “in relation to the general level of prices obtaining in Great Britain”. 42. Although the basic State pension is payable to individuals resident outside the United Kingdom, non-residents are disqualified from receiving uprated pensions. Instead, unless or until they return to live in the United Kingdom, they continue to receive the State pension at the weekly rate applicable in the year in which they emigrated or, if they emigrated before reaching retirement age, at the rate applicable in the year in which they attained retirement age. A non-resident who returns to the United Kingdom for a short period receives the uprated pension while in the United Kingdom, but, when he returns to his country of residence, the pension reverts to its previous amount. 43. The exception to this rule concerns individuals who move to States which have concluded a bilateral reciprocal social security agreement with the United Kingdom which provides for the pensions paid to qualifying individuals to be uprated in line with United Kingdom inflation. 44. States enter into bilateral agreements to provide on a reciprocal basis for wider social security cover for workers and their families moving between the party countries than is available under national legislation alone. Each results from negotiations between the party States, taking into account the scope for reciprocity between the two social security schemes. In all cases the agreement establishes the social security scheme which is to be applied to persons moving from one country to work in the other. Generally, the scheme applicable is that of the country of employment. Whether a reciprocal social security agreement with another country is entered into depends on various factors, among them the numbers of people moving from one country to the other, the benefits available under the other country’s scheme, how far reciprocity is possible and the extent to which the advantages to be gained by an agreement outweigh the additional expenditure likely to be incurred by each State. Where an agreement is in place, the flow of funds may differ depending on the level of each country’s benefits and the number of people going in each direction. 45. Of the bilateral agreements entered into by the United Kingdom which cover more than liability for contributions, nearly all cover retirement pensions and widow’s/bereavement benefits. The majority also cover sickness, incapacity and maternity benefits. Some cover unemployment and child benefits. Where access to a benefit covered by the agreement is dependent on contributions, the agreement generally provides for aggregation of the contributions paid in each country. Each country then calculates a pro-rata pension based on contributions made in that country. Where access to a benefit depends on a period of residence, the agreement is likely to provide for residence in one country to count as residence in the other. Where benefit is paid in one country taking account of residence/contributions in the other, there is usually a provision for reimbursement of the former by the latter. Not all reciprocal agreements to which the United Kingdom is a party, therefore, involve the payment of pension uprating to United Kingdom expatriates. 46. The United Kingdom has reciprocal social security agreements providing for pension uprating with all European Economic Area (EEA) States and with Barbados, Bermuda, Bosnia and Herzegovina, Croatia, the Federal Republic of Yugoslavia, Israel, Jamaica, Japan, Jersey and Guernsey, South Korea, Mauritius, New Zealand, Philippines, Turkey and the United States of America. Residents of the EEA countries and the countries listed above who qualify for a United Kingdom State pension receive the same level of uprating as United Kingdom residents; the uprating is based on the rate of inflation in the United Kingdom and no regard is paid to inflation in the country of residence. 47. All the above agreements were concluded between 1948 and 1992, and from 1979 onwards the agreements were to fulfil earlier commitments made by the United Kingdom Government. Since June 1996, the Government’s policy has been that future reciprocal agreements should normally be limited to resolving questions of liability for social security contributions. Agreements with Australia, New Zealand and Canada came into force in 1953, 1956 and 1959 respectively, but these did not require payment of uprated pensions. The agreement with Australia was terminated by Australia as from 1 March 2001, because of the refusal of the United Kingdom to pay uprated pensions to its pensioners living in Australia. 48. During the passage of the Pensions Bill through Parliament in 1995, amendments tabled in both Houses, calling for uprating to be paid to all expatriate pensioners, were defeated by large majorities. According to the Government, it would cost approximately GBP 4 billion (4 thousand million) to pay the backdated claims to uprating of all United Kingdom pensioners resident abroad in “frozen” countries together with an ongoing annual bill of over GBP 500 million (0.79% of the GBP 62.7 billion spent in total by the United Kingdom in 2008/09 on pensions). 49. Article 69 of the 1952 International Labour Organization’s Social Security (Minimum Standards) Convention (“the 1952 ILO Convention”) provides that a benefit to which a protected person would otherwise be entitled in compliance with the 1952 ILO Convention (including old-age benefit) may be suspended, in whole or in part, by national law as long as the person concerned is absent from the territory of the State concerned. The above provision is echoed in Article 68 of the 1964 European Code of Social Security and Article 74 § 1 (f) of the 1990 European Code of Social Security (Revised). 50. Part IV of the 1982 ILO Convention concerning the Establishment of an International System for the Maintenance of Rights in Social Security envisages that equal treatment of the nationals of the Contracting Parties in respect of social security rights, including the retention of benefits arising out of social security legislation whatever the movements the persons protected might undertake between Contracting States, may be secured by the conclusion of appropriate bilateral and multilateral agreements. Bilateral agreements are the most utilised method of coordination of social security laws and vary greatly in both personal and material scope. Some bilateral agreements cover only nationals of the Contracting Parties, while others apply to any person who has been covered by the social security systems of at least one of the Contracting Parties. They sometimes cover both contributory and non-contributory benefits; sometimes they are confined to contributory benefits only. 51. In April 2008 a Council of Europe initiative to draw up a new framework agreement for the coordination of social security schemes within the member States, to enable in particular the export of benefits throughout the Council of Europe region, was abandoned when it became clear that most countries preferred to maintain the present system of bilateral agreements (see CM(2008)71, paragraph 11, 17 April 2008). | 0 |
dev | 001-60483 | ENG | POL | CHAMBER | 2,002 | CASE OF GRONUS v. POLAND | 4 | Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | Nicolas Bratza | 7. On 15 October 1993 a chimney of a heating plant located in P. and belonging to the State Agency of Agricultural Property, adjacent to the applicant's horticultural farm, partly collapsed, causing damage in the farm. Apparently the applicant requested the Agency to pay compensation for damage which he had sustained. As his efforts to obtain compensation for damage failed, on 17 May 1994 he lodged an action against R.B., the administrator of the State-owned farm in P., with the Słupsk District Court, claiming compensation for the damaged vegetables and equipment. The applicant acted on behalf of “A. E.” limited liability company of which he was the sole shareholder. 8. On 8 June 1994 the Słupsk District Court decided that it lacked jurisdiction to examine the case and ordered that the case be examined by the Słupsk Regional Court. On 26 August 1994 the Słupsk Regional Court decided that the decision of 8 June 1994 was premature in that the District Court had failed to establish whether the defendant had been correctly identified by the applicant and, also, had failed to identify the amount of the compensation sought by the applicant, which was relevant for the determination of a court competent ratione materiae to examine the case. The court transmitted the case to the Commercial Division of the Słupsk District Court. 9. On 12 September 1994 the applicant lodged an appeal, submitting that the courts had limited themselves to transferring the case-file from one to another, and that there was no hope that any decision on the merits of the case would be taken in a reasonable future. On 16 September 1994 the court ordered the applicant to pay the court fee for the appeal. On 21 September 1994 the applicant requested to be granted exemption from the court fees. On 27 September 1994 the Słupsk Regional Court allowed his request. 10. On 3 November 1994 the Gdańsk Court of Appeal allowed the applicant's appeal and quashed the decision of 26 August 1994, finding that it was not in conformity with the law in that the Regional Court should have established itself the facts relevant for the decision which court had jurisdiction ratione materiae to consider the case. 11. On 26 January 1995 a hearing was held before the Słupsk Regional Court. The court decided again that it lacked jurisdiction to entertain the case and on 17 February 1995 transmitted the case to the Commercial Division of the Koszalin Regional Court. On 6 March 1995 the judge of that court ordered that the case be examined by the Civil Division of the Regional Court. On 8 March 1995 the case was registered at the Civil Division of the Koszalin Regional Court. 12. Subsequently the applicant waited for an unspecified time for this decision to be served on him. On 3 June 1995 he complained to the President of the Gdańsk Court of Appeal about the lack of progress in the proceedings. In reply, by a letter of 20 June 1995, the Judge-Supervisor in Civil Proceedings of the Koszalin Regional Court acknowledged that the proceedings were slow, in particular as there had been no progress since the case had been transferred to the Civil Division of the Regional Court on 8 March 1995. It had been only on 5 June 1995 that the judge had ordered the applicant to pay the court fees. However, there was no confirmation in the case-file that this order had been properly served on the applicant, which prevented the court from proceeding further. 13. In a reply of 23 June 1995 to the applicant's complaint about the lack of progress in the proceedings, the President of the Koszalin Regional Court informed him that his case was pending before that court. The President further noted that the problems with identifying the court competent to entertain the case had been in part caused by the fact that the applicant had lodged the action against a natural person, whereas his claim originated in fact from acts for which a State entity could be held liable. However, the applicant's complaint was in part justified, as the case-file had been transmitted to the competent court on 17 February 1995 and a period of three months of inexplicable inactivity followed. 14. On 30 June 1995 the applicant complained to the Minister of Justice about the lack of progress in the proceedings. His complaint was subsequently transmitted for reply to the Koszalin Regional Court. On 16 August 1995 the Judge-Supervisor in Civil Proceedings of the Koszalin Regional Court acknowledged that the proceedings had not been conducted speedily. It was further stated that on 7 June 1995 the applicant had been ordered to pay the court fees. On 14 June 1995 he had requested to be granted exemption from the court fees and subsequently the court ordered him to submit information as to his income. As the applicant had failed to do so, on 21 July 1995 the court ordered that the applicant's income be established on the basis of certain documents to be furnished by the relevant Tax Office. On 11 August 1995 the court requested the Oświęcim Tax Office to issue the relevant information. The Tax Office replied on 15 September 1995. Consequently, the court decided to grant the applicant exemption from the court fees. 15. At the hearing of 13 November 1995 the defendant's lawyer raised objections as to the applicant's capacity to represent the A.E. company. Consequently, the court requested the applicant to submit, within the seven-days time-limit, documents to prove that he was authorised to represent the company. On 10 January 1996 the court decided to stay the proceedings since the applicant had failed to comply with that order. On 23 May 1996 the applicant submitted the relevant documents to the court. On 27 May 1996 the court resumed the proceedings. 16. From June 1996 until August 1997 the judge rapporteur was ill. In August 1997 the case was taken over by another judge. 17. At a hearing on 7 October 1997 both parties presented their oral pleadings and expressed their willingness to reach a friendly settlement. The court stayed the proceedings. On 23 October 1997 the applicant requested the court to resume the proceedings since no friendly settlement had been reached. 18. On 16 January 1998 the court resumed the proceedings and partly quashed the applicant's exemption from the court fees. Furthermore, the court dismissed the applicant's request to appoint a lawyer paid under the legal aid scheme. On 28 January 1998 the applicant appealed against this decision. On 27 February 1998 the Gdańsk Court of Appeal apparently ordered that the applicant's legal aid request be re-examined by the Koszalin Regional Court. 19. On 25 June 1998 the Koszalin Regional Court again decided to dismiss the applicant's request to have a lawyer appointed to the case. The applicant appealed and on 2 October 1998 the Gdańsk Court of Appeal decided that the applicant's request be re-examined by the Koszalin Regional Court. On 14 January 1999 the Koszalin Regional Court again decided to dismiss the applicant's request. The applicant appealed and on 14 April 1999 the Gdańsk Court of Appeal dismissed his appeal. 20. A hearing on the merits of the case was held on 13 September 1999. At this hearing the court ordered that further evidence concerning the damage should be submitted by the applicant. On 29 September 1999 the applicant submitted the additional evidence. At the hearing held on 16 November 1999 the court decided to appoint an expert on agriculture in order to estimate the sum of compensation for destroyed plants. On 2 February the expert's opinion was submitted to the court. On 15 March 2000 the court held the hearing in the case and questioned the expert. 21. On 13 April 2000 the Koszalin Regional Court gave a decision awarding the applicant compensation in the amount of 7,506 PLN. | 1 |
dev | 001-68136 | ENG | FIN | ADMISSIBILITY | 2,005 | JOHTTI SAPMELACCAT RY AND OTHERS v. FINLAND | 3 | Inadmissible | Nicolas Bratza | There are five applicants in the present case. The first applicant, Johtti Sapmelaccat r.y., is an association promoting Sámi culture. The other applicants, Juhan Taneli Magga, Ristenrauna Magga, Nils-Henrik Valkeapää and Anni Näkkäläjärvi, are Finnish nationals of Sámi origin and living in Nunnanen, Vuotisjärvi and Enontekiö, respectively. They are all members of the first applicant association. They are represented before the Court by Mr Heikki J. Hyvärinen, Legal Secretary, Sámi Parliament, and Mrs Kaisa Korpijaakko-Labba, Docent at the Universities of Helsinki and Rovaniemi. The respondent Government are represented by their Agent, Mr Arto Kosonen, Director, Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. According to the Finnish Constitution, the Sámi, as an indigenous people, have the right to maintain and develop their own language and culture. The definition of culture includes their traditional sources of livelihood, that is to say reindeer herding, fishing and hunting. In Finland a fishing right can be a so-called “private fishing right”, connected to the ownership of land. The properties in any one village have fishing rights in the common water-areas of that village. There are also “specific private fishing rights”, which some properties have within the water-areas of other villages or within the State-owned water-areas. All these rights, as rights connected to the ownership of land, enjoy the constitutional protection of property. In addition to private fishing rights, there are public fishing rights which are usually based on membership of a public community, for example a municipality, on the basis of public law. Such a fishing right does not enjoy the constitutional protection of property. In the municipalities of Enontekiö, Inari and Utsjoki, that is to say in the Sámi Home District, there were no public fishing rights before 1998. As mentioned above, Sámi landowners have fishing rights in connection with their land ownership and the State owns the fishing rights in the State-owned water-areas. The fishing rights of Sámi people who do not own any land has been based on custom from time immemorial (ylimuistoinen nautinta, urminnes hävd). It entitles them to fish within the State-owned water-areas in the municipalities of Enontekiö, Inari and Utsjoki. The right is based on civil law and enjoys, as such, the constitutional protection of property. The Fishing Act (kalastuslaki, lagen om fiske; 1212/1997), as amended on 19 December 1997, entered into force on 1 January 1998. According to the Act, public fishing rights were extended to apply also in the municipalities of Enontekiö, Inari and Utsjoki. It was guaranteed by the amendment that the people living permanently in the municipality were entitled to enjoy public fishing rights within the State-owned water-areas. Prior to the 1997 amendment, the 1951 Fishing Act (503/1951) had been applied in the above-mentioned municipalities regardless of the fact that the 1982 Fishing Act (286/1982) applied to all other parts of Finland. The 1982 amendment did not affect the position in the municipalities of Enontekiö, Inari and Utsjoki as, according to the Committee for Constitutional Law (perustuslakivaliokunta, grundlagsutskottet) of the Finnish Parliament (eduskunta, riksdagen), questions concerning special fishing rights which enjoyed the constitutional protection of property and which mainly belonged to the Sámi people had to be settled before the law could be amended. Therefore the 1982 Fishing Act did not apply in the above-mentioned municipalities. As from 1 January 1998, the public fishing right was extended to the area of the above-mentioned municipalities, maintaining “the ancient right of the local people to fish within the State-owned water-areas without consideration”. According to the applicants, the 1951 Fishing Act did not, however, guarantee such a right to the “local people”, including also non-Sámi residents, as it was only granted to them by the 1997 amendment. The 1997 amendment also includes provisions concerning restrictions on hooks allowed in the area. Those restrictions entered into force at the beginning of 2001. Section 5, subsections 1 and 2 (969/1995) “Everyone is equal before the law. No one shall, without an acceptable reason, be treated differently from other persons on the ground of sex, age, origin, language, religion, conviction, opinion, health, disability or other reason that concerns his or her person. Children shall be treated equally and as individuals and they shall be allowed to influence matters pertaining to themselves to a degree corresponding to their level of development.” Section 12 (969/1995) reads as follows: “The property of everyone is protected. Provisions on the expropriation of property, for public needs and against full compensation, are laid down by an Act.” Section 14, subsection 3 (969/1995) reads as follows: “The Sámi, as an indigenous people, as well as the Roma and other groups, have the right to maintain and develop their own language and culture. Provisions on the right of the Sámi to use the Sámi language before the authorities are laid down by an Act. The rights of persons using sign language and of persons in need of interpretation or translation aid owing to disability shall be guaranteed by an Act.” The provisions above are equivalent, respectively, to Sections 6 and 15 and Section 17, subsection 3, of the present Constitution of 2000 (perustuslaki, grundlagen; 731/1999). Section 6 reads as follows: “A private right to use a fishing site or a right to fish within the boundaries of another village or outside the boundaries of the village, based on custom from time immemorial, shall remain valid. The right to use a fishing site on the basis of custom from time immemorial shall, however, only be valid if the boundaries of the site have been clearly established. If a right to use a fishing site or a right to fish in waters located in another village has not been recognised in proceedings for the establishment of the boundaries of those waters, any claim thereto must be brought to the competent district court within three years from the date on which the decision on the boundaries has become final.” Section 54 reads as follows: “Further provisions on the use of the state's fishing rights and on fishing in state-owned waters, as well as on the management of such waters, shall be given by Decree, and in this respect the interests of the local population shall be a primary concern. The fishing arrangements referred to in subsection 1 above must nevertheless not endanger fish or prawn stock.” Section 3 reads as follows: “A local inhabitant, especially where he or she has otherwise no fishing right, has the right to obtain a licence for fishing for personal or recreational purposes in waters administered by the National Park and Forestry Service. Such a licence may also be issued to other persons where this is possible without weakening the possibilities of the local inhabitants to fish. Where found appropriate by the National Park and Forestry Service, a licence may also be issued for purposes other than those referred to in subsection 1 above. The fishing licences referred to in subsections 1 and 2 above shall not be so extensive in scope and number that the fish or prawn stock is endangered.” Section 1 reads as follows: “The provisions of this Decree shall apply in the municipalities of Enontekiö, Inari and Utsjoki. For the purposes of this Decree, "the Fishing Act" means the Fishing Act of 28 September 1951 (503/1951), as amended.” Section 10 reads as follows: “The state provincial office shall set up an advisory board for each of the three municipalities for a period of one year at a time, to discuss fishery matters relating to the water areas referred to in section 9, subsection 1 above. The advisory boards shall have as their duties, within the limits of their competence, to give opinions, make proposals and take initiatives, as well as to perform other duties assigned to it in this Chapter. Each year, the National Park and Forestry Service and the Finnish Forest Research Institute shall request an opinion from each advisory board on the principles to be applied to fishing arrangements and to the issue of fishing licences. The opinion may only be derogated from by the authorities for special reasons. Each advisory board shall also be requested to provide an annual report on plans concerning the management of fishing sites.” Section 11 reads as follows: “An advisory board shall consist of five members and their personal deputies. The National Park and Forestry Service, the Sámi Delegation (saamelaiskäräjät, sametinget), the fishing districts, the municipality and the local associations of professional fishermen shall each appoint one member and his or her personal deputy. Where the professional fishermen have not created any association, or the associations are not able to agree on the member representing them jointly, the municipality shall appoint one of the candidates. The advisory board shall elect one of its members as president and one as vice-president. The advisory board shall be convened by the president or, in his absence, by the vice-president, and its quorum is constituted by the president or vice-president and at least two other members. The work of the advisory boards shall otherwise be governed by the provisions on government committees.” Section 12 reads as follows: “Permanent residents of the municipality carrying out professional fishing, fishing for personal purposes or other traditional means of livelihood have the right to obtain a fishing licence free of charge for fishing in state-owned waters referred to in section 9, subsection 1 above, located in their municipality of residence. Such a licence may also be issued, subject to a charge, to other persons where it is possible without weakening the fishing possibilities of the local inhabitants referred to above. A licence may be withdrawn or fishing carried out under a licence may be prohibited for a given period of time where it is necessary for the purposes of planting of fish, fish culture, scientific research or other use or management of fishing sites.” Section 12 (1212/1997) reads as follows: “The state's fishing sites (valtion yksityiset kalastukset, statens enskilda fisken) shall remain in the possession of the state in those areas where they have customarily been and still are in the state's possession. Further provisions on the use of those sites and on the use of the fishing rights belonging to the state in state-owned waters shall be given by decree, and in this respect the interests of professional fishermen and the local population shall be a primary concern. Permanent residents of the municipalities of Enontekiö, Inari and Utsjoki, carrying out professional fishing, fishing for personal purposes or other traditional means of livelihood, have nevertheless a right to obtain a fishing licence free of charge for fishing in state-owned waters located in the said municipalities. The provisions of section 8, subsection 1 above are, however, also applied to state-owned waters.” Section 13 (286/1982) reads as follows: “A special right to a fishing place or to fish within the boundaries of another village or outside the boundaries of the village, which has been legally acquired on the basis of undisturbed possession since time immemorial or some other reason, will remain in force as of old. Undisturbed possession of a fishing place since time immemorial, however, is valid only if the boundaries of the place may be reliably shown. If a right to a fishing place or to fishing in the waters of another village has not been accepted when demarcating the district boundary, any action concerning the matter shall be instituted in the general court of first instance within three years of the date when the demarcation has gained legal force. Where fishing rights have been accorded by a court decision or in some legal manner other than as provided above in this Act, such a decision shall continue to be observed.” Section 129 (286/1982), subsections 1 and 4, read as follows: “This Act repeals: 1. the Fishing Act (503/51) issued on 28 September 1951; 2. the Decree of 28 December 1951 on the enforcement and the application of the Fishing Act (695/51); and 3. the Decree of 9 July 1953 on the use of the private fishing grounds of the State and on fishing in fishing waters belonging to the State (322/53), as amended; as well as 4. the Land Partition Act of 14 December 1951 (604/51) § 112 paragraph 2. What has been enacted in paragraph 1 subparagraph 1 shall not apply to the area of the municipalities of Inari, Enontekiö and Utsjoki for which areas the Fishing Act (503/51) as amended remains in force.” Section 34 (1356/1993) reads as follows: “A person belonging to the local population who does not have fishing rights based on a proprietary right or other particular legal relationship shall be entitled to receive a licence for fishing in a water area referred to § 33 paragraph 1 belonging to the State. When the State is a joint owner of common fishing waters, it may grant the licence referred to above concerning the fishing rights corresponding to its share. The fishing corporation concerned shall be informed by an authority of the granting of the licence. A fee fixed according to the basis confirmed by the fishing corporation shall be paid for the licence. When the licences referred to above in this section cannot be granted to all who want them, priority shall be given to persons engaging in fishing professionally or for domestic needs.” Section 34a (1364/1997) reads as follows: “A licence entitling permanent residents of the municipalities of Enontekiö, Inari and Utsjoki to carry out fishing referred to in section 12, subsection 1 of the Fishing Act, shall be issued by the authority referred to in section 33, subsection 1 of the Act or, in accordance with instructions issued by it, by its subordinate regional office or other entity recognised by the said authority. The licence may not be given for more than three years at a time. A right based on a licence is not transferable. Licences referred to in subsection 1 of section 34 above may be issued in the municipalities of Enontekiö, Inari and Utsjoki where this does not weaken the fishing possibilities of those carrying out fishing under a licence referred to in section 12, subsection 1 of the Fishing Act.” Section 53 (1/97) reads as follows: “The obligation to pay the fishery fee laid down in § 88 paragraph 1 of the Fishing Act shall concern all persons between the ages 18-64 who take directly part in the catch. The fishery fee shall not be collected from those persons who participate in catch only as assistants without taking part in the handling of the fishing gear in connection with the catch. Those under 18 or over 65 years of age who under § 88 paragraph 1 of the Fishing Act shall be allowed to engage in catching fish and crayfish without paying the statutory fishery fee or under § 88 paragraph 2 of the Fishing Act without paying the fee, shall prove their age in a reliable way, when necessary.” “...the provisions of the 1951 Act and the 1982 Act, concerning fishing rights based on land-ownership, are similar in substance. At the time of enactment of the 1982 Fishing Act, no final court decisions had been given on the water district boundaries in the municipalities of Enontekiö, Inari and Utsjoki. Therefore, the existing specific rights to a fishing site, attached to real estates, were also unclear. For these reasons, the provisions of the 1951 Fishing Act remained in force for the three northernmost municipalities. Thereafter, the decisions on the water district boundaries have become final and any specific fishing rights attached to real estates have been established. There are no longer any unsolved questions of ownership of water areas in respect of individual real estates, and therefore it is no longer necessary to apply the 1951 Fishing Act in the area in question. The state-owned fishing sites are of great importance for the local population in the municipalities of Enontekiö, Inari and Utsjoki. In the absence of decisions on the establishment of water district boundaries, there were unsolved questions in respect of the ownership of the water areas. Therefore, the inhabitants of the said municipalities had a possibility to fishing free of charge in the waters located in their municipalities of residence. In the proceedings for the establishment of water district boundaries, most of the waters were established as belonging to the state. Thus, the state also held the fishing rights attached to the waters, except for certain specific fishing rights. In order to provide for the possibilities of the local inhabitants to fish, it was provided in the decree implementing the 1951 Fishing Act, which entered into force in 1983, that the local inhabitants of the three northernmost municipalities, who were carrying out professional fishing, fishing for personal purposes or other natural means of livelihood, had the right to obtain a fishing licence free of charge for fishing in the state-owned waters located in their municipalities of residence. The local inhabitants were also provided with a possibility to participate in decision-making concerning fishing and management of fish stock in respect of those waters, by means of setting up advisory boards for each of the three municipalities. These advisory boards had, inter alia, the responsibility of reviewing fishing arrangements and principles concerning the issue of fishing licences. The National Board of Forestry, the Sámi Parliament, the fishing districts, the municipality and the local associations of professional fishermen appointed members to the Advisory Board. ... It is proposed that the possibility for the local inhabitants of Enontekiö, Inari and Utsjoki municipalities to fish in the state-owned waters be maintained. Therefore, the present proposal contains provisions which are currently included in a decree, concerning the right of the local inhabitants carrying out professional fishing, fishing for personal purposes or other traditional means of livelihood to fish free of charge in the state-owned waters (Section 12). ... The application of the 1982 Fishing Act in the municipalities of Enontekiö, Inari and Utsjoki does not remove or change the fishing rights that their inhabitants have in the state-owned waters which have an established legal basis, such as the basis of custom "from time immemorial". Most of the local inhabitants carrying out traditional means of livelihood in the said municipalities represent the Sámi population. In order to secure the fishing rights of the local inhabitants carrying out professional fishing, fishing for personal purposes or other traditional means of livelihood, it is proposed that the Act contain those provisions on the right to fish free of charge in the state-owned waters which are now included in a decree. Thus, the existing provisions would be included in an Act of Parliament instead of a decree, but the proposal does not intend to change the substance of the provisions. “On different occasions (opinions 7/1978, 5/1981 and 30/1993) the Constitutional Law Committee has found that local inhabitants of the three northernmost municipalities, who have no titles to land, have such fishing rights as enjoy the protection of possessions guaranteed by the Constitution. In the opinion given in 1978, the Constitutional Law Committee observed that "the bill subject to debate, concerning fishing in the three northernmost municipalities, entailed weakening of the traditional fishing rights of their residents who had no titles to land but who earned a significant part of their living from traditional means of livelihood, of whom most represented the Sámi population, as a licence would thereby be necessary for fishing and it would be subject to a charge." In the Committee's view, the bill had to be considered in accordance with the procedure for the enactment of the Constitution. The opinion given by the Constitutional Law Committee in 1981 concerned the Government Bill for the enactment of the 1982 Fishing Act. The Committee drew attention to the fact that it was necessary to separately solve the unresolved questions concerning fishing in the northernmost municipalities without delay. Thereafter, the Law and Finance Committee proposed that the fishing legislation - the 1951 Fishing Act - in force at the material time should remain in force for the said municipalities (Report of the Law and Finance Committee 18/1981). Thus, a provision based on that proposal, subsection 4 of section 129, was included in the new Fishing Act. In 1993, the opinion of the Constitutional Law Committee concerned a Government Bill in which it was proposed, inter alia, that section subsection 4 of section 129 of the 1982 Fishing Act be repealed. On that occasion, the Committee was of the view that the bill entailing repealing of the said provision had to be discussed in accordance with the procedure provided for in section 67 of the Parliament Act. The Committee further noted, referring to the ILO Convention No 169 concerning Indigenous and Tribal Peoples in Independent Countries, adopted in 1989, that such an amendment should not be made even if it was made in accordance with the procedure applied to the enactment of the Constitution. ... Extending the scope of application of the 1982 Act to concern the three northernmost municipalities entails harmonisation of legislation which can be said to be in conformity with the principles enshrined in section 5 of the Constitution Act of Finland and with the requirements of foreseeability. A general constitutional issue relating to the extension of the scope of application is the question of public fishing rights as a restriction on the enjoyment of possessions. Referring to earlier opinions, the Committee finds that in this regard the bill may be discussed in accordance with the procedure applied to the enactment of ordinary acts of Parliament (Opinions of the Constitutional Law Committee 8/1996 and 5/1981). ... Subsection 1 of section 12 means that the local inhabitants in the three northernmost municipalities maintain their possibility to fish free of charge in the state-owned waters, based on custom. In the Committee's view, this kind of a legislative measure conforms to the requirements attached to the protection of possessions based on custom "from time immemorial" and on an extensive right of enjoyment, which have been observed in earlier opinions of the Committee, concerning the traditional rights of inhabitants who do not have titles to land. For this reason, the Committee is of the view that the bill is also acceptable in the light of the provisions in section 5 of the Constitution Act. As regards the status of the Sámi people, particularly in view of the provisions in subsection 3 of section 14 of the Constitution Act, the Committee has paid attention to the fact that fishing has been part of the traditional way of life of the Sámi without any restrictions as to their place of residence. Therefore, the Committee finds it important to clarify the last part of the provision in subsection 1 of section 12 so that the fishing right is not only dependent on the place of residence but is valid in the areas of all three northernmost municipalities where the person is resident in one of them. ... Article 27 of the International Covenant on Civil and Political Rights provides for the rights of minorities. For example in the light of the practice of the Human Rights Committee monitoring the implementation of the Covenant, it may be observed that the exercise of fishing rights of the Sámi is part of their minority culture. The proposed amendment may not be considered to entail prevention of fishing as part of the Sámi culture in the sense of constituting a violation of Article 27 of the Covenant. In this respect, reference may be made to section 12 of the Bill, which is based on the premise that the permanent residents of the said municipalities have the right to obtain a fishing licence free of charge. ... The Government Bill does not interfere with questions of ownership. The purpose of the proposed provisions is, inter alia, to establish the right of permanent residents of the municipalities of Enontekiö, Inari and Utsjoki to obtain a fishing licence free of charge for fishing in the state-owned waters, on certain conditions. The Bill is not restricted to the Sámi as a population group but concerns all residents of the said municipalities. Apart from permanent residence, it is further required for the existence of such a right that the residents in question carry out professional fishing, fishing for personal purposes or other traditional means of livelihood. In the Committee's view, these conditions are, however, of such a nature that they have relevance in particular for the Sámi. Therefore, it may be observed that the Bill partly contributes to the protection of the right of the Sámi to use the water areas in question.” | 0 |
dev | 001-97326 | ENG | SVK | ADMISSIBILITY | 2,010 | MARKOVIC v. SLOVAKIA | 4 | Inadmissible | David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä | The applicant, Mr M. Markovič, is a Slovakian national who was born in 1972 and lives in Púchov. He was represented before the Court by Mr R. Procházka, a lawyer practising in Bratislava. The Slovak Government (“the Government”) were represented by their Agent, Mrs M. Pirošíková. The facts of the case, as submitted by the parties, may be summarised as follows. On 13 December 2004 the applicant’s wife initiated criminal proceedings against the applicant for bodily harm. On 14 December 2004 the applicant’s wife left for Karlovy Vary in the Czech Republic. Without the applicant’s knowledge, she took with her their son. On 20 December 2004 the Karlovy Vary District Court issued an interim measure awarding the applicant’s wife custody of the child. On 26 July 2005 the Považská Bystrica District Police Office discontinued the criminal proceedings on the ground that no crime had been committed. On 26 August 2005 the discontinuation of the criminal proceedings was confirmed by the Považská Bystrica District Prosecutor Office. On 10 February 2005 the applicant lodged an action with the Považská Bystrica District Court petitioning for divorce and seeking determination of the rights and obligations in respect of their child. On 23 March 2005 the applicant sought an interim measure regulating child contact arrangements. On 11 April 2005 the applicant withdrew his submission. On 17 May 2005 the first hearing took place. The District Court adjourned the hearing pending its receipt of the criminal file, the Karlovy Vary District Court’s file as well as the administrative file from the Karlovy Vary Social Affairs Office. On 2 September 2005 the applicant sought an interim measure regulating child contact arrangements. On 8 September 2005 the District Court issued an interim measure. On 20 September 2005 the applicant appealed. On 9 November 2005 the Trenčín Regional Court decided on the appeal. On 1 February 2006 the applicant requested an expert opinion. On 3 February 2006 the District Court appointed an expert psychologist. On 3 May 2006 the District Court imposed a fine on the applicant’s wife for non-appearance before the expert. On 26 May 2006 the applicant’s wife appealed against the fine. The Regional Court dismissed the appeal on 19 September 2006. On 18 May 2006 the applicant’s wife challenged the expert on grounds of bias. On 3 June 2006 the expert submitted the expert opinion. On 3 November 2006 the District Court dismissed the objection of bias. On 15 December 2006 the applicant’s wife appealed. On 29 December 2006 the Regional Court dismissed the appeal. On 22 March 2007 the second hearing took place. The District Court decided to obtain a second expert opinion from an expert in the Czech Republic. On 18 April 2007 the applicant sought an interim measure regulating child contact arrangements. On 26 April 2007 the applicant’s petition was dismissed. On 14 May 2007 the applicant appealed. On 28 May 2007 the Regional Court decided on the appeal. On 6 June 2007 the applicant challenged the Czech expert on grounds of bias. On 7 September 2007 the Karlovy Vary District Court dismissed the objection of bias against the expert. On 29 June 2007 the applicant challenged the judge on grounds of bias. On 12 September 2007 the Regional Court dismissed the objection of bias. Between October 2007 and March 2008 the Považská Bystrica District Court requested the Karlovy Vary District Court on five occasions to inform it whether the decision to dismiss the objection of bias had become final. On 17 March 2008 the District Court received information that the above decision had become final. Between February 2008 and June 2008 the Považská Bystrica District Court asked the Karlovy Vary District Court on three occasions for information on the status of the expert opinion. On 2 October 2008 the Karlovy Vary District Court delivered the expert opinion to the District Court. On 13 November 2008 the District Court delivered the judgment. On 23 December 2008 the applicant’s wife appealed. On 18 February 2009 the applicant submitted his statement in response to the defendant’s appeal. On 23 February 2009 the case was transferred to the Regional Court for a decision. On 16 April 2009 the Regional Court decided to obtain a third expert opinion from an expert psychologist. On 12 June 2009 another expert was appointed due to the heavy workload of the expert appointed on 16 April 2009. The proceedings are pending. On 22 May 2007 the applicant complained to the Constitutional Court about the length of the civil proceedings. On 31 August 2007 the Constitutional Court The Constitutional Court concluded that the District Court had handled the case in an appropriate manner. | 0 |
dev | 001-138936 | ENG | SVK | ADMISSIBILITY | 2,013 | POPIVČÁK v. SLOVAKIA | 4 | Inadmissible | Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 1. The applicant, Mr Peter Popivčák, is a Slovak national who was born in 1950 and lives in Košice. He was represented before the Court by Mr T. Šafárik, a lawyer practising in Košice. 2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The facts of the present case revolve around a piece of real property, situated in a regional capital, which used to form part of the site of a factory belonging to a (socialist) State-owned enterprise. 5. In the 1980s an above-ground heat distribution pipeline was built in the area in order to provide it with heating. The pipeline passes through the property in question. 6. The applicant is a self-employed entrepreneur. In that capacity, in 1991 and 1992 he rented the said property from the private company which had meanwhile become its owner. Subsequently, in 1993, the applicant himself acquired title to the property by way of purchase. 7. The property forms a part of a shop in which the applicant runs a business which is essentially a car scrapyard. 8. The property partly consists of a road. According to the Government’s submission, which is supported by photographs and which has not been contested by the applicant, the remaining part of the property is used for storing wrecked cars. 9. The pipeline runs alongside the applicant’s premises approximately 3 metres above the ground and between 4.5 and 9.5 metres from the fence, and it rests on pylons anchored in the ground. 10. The pipeline belongs to a commercial joint-stock company producing and distributing heating for the town concerned. 11. The bone of contention in the present case is the lack of compensation for the restrictions on the use of the applicant’s property due to the pipeline. The applicant unsuccessfully applied for such compensation in the proceedings which lie at the heart of the present case. However, prior to those proceedings he had asserted similar claims in another set of proceedings, but also unsuccessfully. Both sets of proceedings are described below, chronologically, with focus on the contested proceedings. 12. Until 2004, by virtue of section 4(1)(l) of the Real Estate Tax Act (Law no. 317/1992 Coll., as in force at the relevant time), real property encumbered by easements such as the one in the present case were exempt from real-estate tax. According to the Government, whose submission the applicant has not contested, from 2005 this exemption continued to apply to the property in question by virtue of a decision of the municipality concerned. 13. In 2000 the applicant lodged an action against the above-mentioned heat production and distribution company seeking compensation in respect of unjustified enrichment on account of the easement relating to the pipeline. 14. The action was dismissed by the Košice II District Court (Okresný súd) on 9 December 2002 and, following an appeal by the applicant, by the Košice Regional Court (Krajský súd) on 19 May 2003. 15. On 25 April 2008 the applicant lodged a new action against the same defendant, arguing that the latter was the owner of the pipeline and that, along with the protective zones around it, the pipeline prevented him from making use of about 500 square metres of his property. 16. The applicant submitted that the average yearly rent for land in the area was equivalent to approximately 3.70 euros (EUR) per square metre. Accordingly, the applicant requested an order for the payment of the equivalent of approximately EUR 1,850 to cover the four years before the introduction of his action, plus each subsequent year. 17. In support of his claims, the applicant invoked, inter alia, Articles 1 of Protocol No. 1 and 20 §§ 1 and 4 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended), as well as the relevant provisions of the Civil Code (Law no. 40/1964 Coll., as amended) and the 2004 Thermal Energy Sector Act (Law no. 657/2004 Coll., as amended). 18. The applicant also relied on a judgment (nález) of the Constitutional Court (Ústavní soud) of the Czech Republic (whose legal tradition is similar to that of Slovakia) of 18 November 2003 in case no. I. ÚS 137/03. That judgment concerned, inter alia, the continued application of the 1957 Electrification Act (Law no. 79/57 Coll.) (see below), which had been adopted at the time of the Czechoslovak Republic. The Czech Constitutional Court observed an ideological distinction between the “old law”, that is to say, that of the “old (communist) regime” prior to November 1989, and the law applicable under the subsequent democratic constitution. This distinction reflected the political and economic changes that had taken place. While there was a general continuity with the old law, there was a discontinuity in respect of the values of the old regime. Thus, the interpretation and application of the old rules had currently to take due account of the protection of human rights and fundamental freedoms, including the protection of property. The latter consideration was all the more relevant when the beneficiary of an ex lege easement was making use of it in order to obtain economic gain. While the lawfulness of the creation of an ex lege easement as such was undisputed, where the applicable publiclaw legislation contained no provision for compensation in respect of expenses relating to the exercise of the easement, the relevant provisions of private law were to be used as an alternative. Such provisions provided for compensation in respect of running costs, which was to be agreed on by those concerned or to be ordered by a court. A lack of compensation for such expenses would constitute unjust enrichment on the part of the beneficiary of the easement. 19. The action was dismissed by the District Court on 14 January 2009 and, following an appeal by the applicant, by the Regional Court on 5 May 2010. The courts’ reasoning can be summarised as follows. 20. To start with, the courts found that, although the action concerned the same parties and the same property and was based on the same line of argument, the matter was not res judicata by reason of the judgments of 2002 and 2003 (see paragraph 13 above). This was so because the claims raised in it concerned a different period of time (see paragraph 15 above), and new legislation had been enacted in the meantime (see below). 21. In this regard, the courts observed that the heat-distribution facility had been built under a construction permit granted in 1981; that it had begun to operate in 1987; and that it was located on land which, at that time, had belonged to the (socialist) State. By operation of section 18 of Governmental Directive no. 80/1957 Coll. (applicable at the relevant time) on the implementation of the 1957 Electrification Act, the application of that Act had been extended to heatdistribution facilities, such as the one in the present case. The 1957 Electrification Act thus authorised the construction of the facility but, as a matter of principle, it did not provide for compensation. However, if the owners or users of the real property concerned were significantly encumbered in its use, they could claim adequate one-off compensation. The claim had to be filed within three months of the entry of the installation into use or else it would lapse. The 1957 Electrification Act provided for ex lege easements and the subsequent legislation, in particular section 42(2) of the 1998 Energy Act (Law no. 70/1998 Coll.) and section 38(4) of the 2004 Thermal Energy Sector Act, had left them intact. None of these pieces of legislation envisaged any compensation for the restrictions inherent in the continued existence of the ex lege easements, other than the one-off compensation at the time of their creation. Providing for new compensation claims would have the effect of creating new titles to restitution, which the lawmaker was free under the Constitution not to choose to do. The applicant had acquired his plot in 1993 by purchasing it from a private seller. It had been his responsibility to examine the condition of the property, including the existence of the impugned ex lege easement, and to ensure that that was reflected in the purchase price. The contested ex lege easement fell outside the scope of the existing unjustified-enrichment rules, which accordingly were not applicable. 22. On 18 June 2010 the applicant challenged the judgement of the ordinary courts by way of a complaint before the Constitutional Court (Ústavný súd) under Article 127 of the Constitution. In substance, he reiterated the above arguments and alleged a violation of his rights under Articles 6 § 1 of the Convention and 1 of Protocol No. 1. In addition, he submitted that the courts’ argument concerning how he had acquired the property was of secondary importance and did not deal with the question of principle obtaining in cases such as his. 23. On 7 October 2010 the Constitutional Court declared the complaint inadmissible as being manifestly ill-founded. The Constitutional Court reiterated its established case-law to the effect that a general court could not bear “secondary liability” for a violation of fundamental rights and freedoms of a substantive nature unless there had been a constitutionally relevant violation of the rules of procedure. However, no such procedural issue had been established. The essence of the applicant’s complaint was that there was no law enabling him to claim compensation for the ex lege easement over his property. However, in contrast to some other jurisdictions, including the Czech Republic, an individual in Slovakia had no power to challenge the compliance of the legislation, or lack of it, with the Constitution. The applicant’s argument made in reliance on the case-law of the Constitutional Court of the Czech Republic was therefore without consequence. The ordinary courts had supported their judgments by adequate reasoning and their conclusions as to the facts and law manifested no signs of arbitrariness or lack of justification. 24. The Charter (Constitutional Law no. 23/1991 Coll.) was introduced into the legal order by way of a constitutional law which was enacted by the Federal Assembly of the Czech and Slovak Federal Republic on 9 January 1991 and which entered into force on 8 February 1991. The law remains in force in Slovakia today. 25. The relevant part of Article 11 provides: “1. Everyone has the right to own property. Each owner’s property right shall have the same content and enjoy the same protection. [The right of] inheritance is guaranteed. 2. The law shall designate the property necessary for securing the needs of society as a whole, the development of the national economy, and public welfare, which may be owned exclusively by the State, a municipality, or by designated legal persons; the law may also provide that certain items of property may be owned exclusively by citizens or legal persons with their headquarters in the Czech and Slovak Federal Republic. 3. Ownership entails obligations. It may not be misused to the detriment of the rights of others or in conflict with legally protected public interests. It may not be exercised so as to cause harm to health, nature, or the environment beyond the limits laid down by law. 4. Expropriation or some other mandatory limitation upon property rights is permitted in the public interest, on the basis of law, and for compensation.” 26. The relevant part of Article 20 provides: “1. Everyone shall have the right to own property. The property rights of all owners shall be uniformly construed and equally protected by law. The right of inheritance is guaranteed. ... 4. Expropriation or restrictions to the right of property may be imposed only to the extent necessary and in the public interest, in accordance with the law and for adequate compensation.” 27. Articles 3 § 1: “The exercise of rights and fulfilment of duties under civil law must not interfere with the rights or legally protected interests of others without a lawful ground and may not be contra bonos mores.” 28. Article 123: “The owner shall be entitled, within the limits prescribed by law, to hold the object of his ownership, to use it, to benefit from its fruits and proceeds and to make dispositions in respect of it.” 29. Article 124: “All owners shall have the same rights and duties and shall be granted the same legal protection.” 30. Article 128: “1. The owner of a thing must endure the use of his thing [by another person] in a state of emergency or in a pressing public interest, for the necessary time, to the necessary extent, and in return for compensation, if the purpose cannot be achieved otherwise. 2. In the public interest, ... the ownership of [a thing] may be restricted if the purpose cannot be achieved otherwise, provided that the expropriation or restriction has a basis in law, and only for that purpose and for compensation.” 31. Article 151n et seq. provides for basic rules in relation to easements: “1. Easements shall constitute a restriction on the owner of real property for the benefit of someone else, so that the owner must endure, refrain from doing or do something. The rights constituting an easement shall be linked to and originate from the ownership of particular real property or be linked to and belong to a particular person. 2. Easements linked to and originating from the ownership of real property shall pass to the acquirer together with the acquisition of the ownership of the property. 3. Unless the participants agree otherwise, the person who is entitled to use somebody else’s thing on the basis of a right constituting an easement must bear an adequate share of the costs of its maintenance and repair; however, if the thing is co-used by its owner, the owner must bear these costs in proportion to the extent of the joint use.” 32. The relevant part of Article 151o § 1 provides: “Easements can arise on the basis of a written contract, on the basis of a will, in connection with the outcome of inheritance proceedings, on the basis of an approved agreement among the heirs, on the basis of a decision by the competent authority, or by operation of law.” 33. Under section 22(1) of the 1957 Electrification Act, an enterprise active in the energy sector was entitled: (a) to build and operate electrical installations on other persons’ real property to the extent permitted under the building permit, to erect support pylons, to connect the plots by conductors and to establish the electricity main on them; (b) to access the real property directly concerned for the purposes of the construction, operation, maintenance, and modification or removal of the main; and (c) to remove or prune trees obstructing the main. 34. Subject to section 22(2), the exercise of the entitlements pursuant to section 22(1) was subject to no compensation. However, if the owners or users of real property not belonging to the (socialist) State were significantly encumbered in the use of the property because of the establishment of the main, they could a claim with the construction authority for the company concerned to pay them adequate one-off compensation. The claim was to be submitted within three months of the entry of the installation into permanent use on the pain of expiry. 35. Under section 18 of Governmental Directive no. 80/1957 Coll. (as in force at the relevant time) on the implementation of the 1957 Electrification Act, the application of section 22 and certain other provisions of the 1957 Electrification Act was extended to heat-distribution facilities. 36. The 1957 Electrification Act was abolished and replaced by the 1998 Energy Act as of 1 July 1998, which in turn was abolished by virtue of the 2004 Energy Act (Law no. 656/2004 Coll.) as of 1 January 2005. However, under both Acts, as well as under the 2004 Thermal Energy Sector Act, entitlements in respect of other persons’ real property and limitations on the use of it which had been established previously remained intact. 37. Under the relevant part of section 10 of the 2004 Thermal Energy Sector Act, “1. The holder of a licence [to carry out business in the thermal energy sector] ... shall have the right: a) to enter with machinery or on foot another person’s land, buildings or facilities in connection with the operation, service, taking of readings, repairs and maintenance of the heating facility network ... after obtaining the consent of the owner of the real property [concerned], which consent shall not be required in the event of an immediate threat to life, health or property ..., b) in a protective zone to remove and prune trees and other coppice which undermines the security and reliability of the thermal energy facilities if the owner or other entitled user of the real property [concerned] has not done so despite a previous written request ..., 2. The holder of the licence is liable for: ... c) providing one-off compensation for the restriction on the exercise of ownership rights in respect of real property which he or she has entered in the discharge of his or her tasks under [the above-cited] sub-section 1,” 38. In addition, under section 33(1)(a) of the 2004 Thermal Energy Sector Act, individuals and legal entities are entitled to adequate compensation for restrictions on the exercise of their ownership rights due to the establishment of a protective zone, and for entry onto their real property for the purposes of the reconstruction, repair or maintenance of a system of thermal installations. 39. By way of an action in the Prešov District Court (case no. 9C 207/00), an individual sued a municipality and a public-transport company of that municipality for compensation in connection with electrical installations situated on his real property and used by the defendants in operating the public transport system. The legal provisions applicable in respect of such installations were similar to those applicable in the present case. For unclear reasons the applicants were third parties to the proceedings. 40. In the context of those proceedings, the Court of Appeal challenged before the Constitutional Court the constitutionality of section 42(2) of the 1957 Electrification Act, applicable by virtue of section 69(10) of the 2004 Energy Act, which had replaced the 1998 Energy Act. 41. On 28 September 2005 the Constitutional Court dismissed the challenge (case no. PL. ÚS 28/05) holding that the impugned statutory provisions merely concerned the continued existence of ex lege easements and provided for no new possibility to claim compensation. Providing for new compensation claims would amount to enabling new restitution claims, which the lawmaker was free under the Constitution to choose not to do. | 0 |
dev | 001-84117 | ENG | UKR | CHAMBER | 2,007 | CASE OF LEBEDEVA v. UKRAINE | 4 | Violation of Art. 6-1 | Peer Lorenzen | 4. The applicant was born in 1950 and lives in Kharkiv. 5. The applicant is the grandmother of a minor P.E. born in 1990. After the death of her daughter, her son-in-law, P.V., did not allow her to see P.E. 6. On 10 January 1997 the applicant instituted proceedings against P.V., seeking permission to see her granddaughter regularly. 7. On 3 December 1999 the Ordzhonikidzevsky District Court of Kharkiv (hereafter “the Ordzhonikidzevsky Court”) allowed the applicant's claim in part. 8. On 18 January 2000 the Kharkiv Regional Court quashed this decision and remitted the case for a fresh consideration. 9. On 7 July 2000 Ordzhonikidzevsky Court found against the applicant. 10. On 5 September 2000 the Kharkiv Regional Court quashed this decision and remitted the case for a fresh consideration. 11. On 20 June 2001 the Frunzensky District Court of Kharkiv allowed the applicant's claim in part. 12. On 9 January 2002 the Kharkiv Regional Court of Appeal quashed this decision and terminated the proceedings and left the applicant's claim without consideration as she had not used the possibility of extrajudicial settlement of the dispute before the Tutelage Board. The applicant was informed that she could re-lodge her claim after exhausting this possibility. 13. On 14 August 2002 the Supreme Court upheld the ruling of the Kharkiv Regional Court of Appeal, thereby terminating the proceedings. The applicant received the copy of this ruling by regular mail on 7 October 2002. | 1 |
dev | 001-107446 | ENG | POL | CHAMBER | 2,011 | CASE OF SEMIK-ORZECH v. POLAND | 4 | No violation of Art. 10 | George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano | 5. The applicant was born in 1955 and lives in Katowice. 6. On 9 December 2002 a hearing in a criminal case concerning a largescale fraud and generating considerable media interest was held before the Kraków Śródmieście District Court. Advocate J.Z., representing three accused (K.W., A.D. and A.M.D.) submitted to the court a power of attorney authorising another advocate, Ms D.K. who also represented A.M.D., to replace him for the purposes of representing his other two clients. The court accepted that document without any comment. 7. During the same hearing a heated exchange broke out between lawyers representing various defendants as to the possibility of a conflict of interest between various clients of lawyers involved in the case, including between J.Z.’s two clients K.W. and A.D. on the one hand and A.M.D., represented by advocate D.K., on the other. During that exchange advocate J.Z. declared that he would not represent A.M.D. any longer. The court expressed the view that it was too early at that stage of the proceedings to determine whether there was any conflict of interest between the accused which would have prevented the same lawyers from representing them. The courts admonished the lawyers several times for allowing the debate to get out of hand and for their inappropriate conduct in the courtroom. 8. On 15 December J.Z. informed his clients K.W. and A.D. on the phone that he would not be able to attend the hearing scheduled for 16 December 2002. He referred to the authorisation he had given to Ms D.K. on 9 December 2002 to replace him for the purposes of that hearing. He also informed Ms D.K. accordingly. 9. On 16 December 2002 the court held the hearing. Advocate J.Z. was absent. Advocate D.K. informed the court that he had informed her that he had authorised her to replace him for the purposes of that hearing and referred to the authorisation submitted to the case file at the hearing of 9 December 2002. Subsequently, the court declared, having regard to the testimony given by A.M.D. at the previous hearing, that there was a conflict of interest between K.W. and A.M.D. and that, accordingly, they could not be represented by the same lawyer. The court adjourned the hearing having regard to the fact that advocate D.K. was to represent both her client A.M.D. and K.W. on the basis of the authorisation given to her by advocate J.Z. on 9 December 2002 (see paragraph 6 above). 10. On 17 December 2002 Dziennik Zachodni, a newspaper published in Katowice, published an article written by the applicant and entitled “A Lawyer’s Nonchalance?” The applicant alleged that J.Z., the advocate representing the accused in a major criminal case pending before the Kraków Śródmieście District Court, had failed to meet his professional obligations and act diligently by failing to attend the hearing held on 16 December 2002. The relevant part of the text read: “(...) ‘it is the absence of the defence lawyer which is a problem’ explained the presiding judge, E.S. Advocate J.Z. failed to attend the hearing and did not justify his absence. He only asked another advocate to tell the court that he could not attend the hearing and requested that advocate (one day before the hearing) to replace him. The court could not accept that replacement, because the interests of the defendants represented by J.Z. and by that advocate were in conflict. The court could not but adjourn the hearing. Advocate Z. was well aware of that conflict. Other defence lawyers in that case had drawn his attention to it. It is difficult not to see his absence as disrespect towards the court, the prosecutor (...), the parties who reside in Silesia. He is, after all, supposed to know how to justify an absence before a court. ‘I am baffled by the attitude of the defence lawyer’ said judge E.S. The court informed the local Bar Council about the lawyer’s conduct.” 11. After the hearing, advocate J.Z. first requested the newspaper to publish a rectification, within the meaning of Article 31 of the 1984 Press Act, arguing that the conflict of interest between his clients and the client of Ms D.K. had been officially acknowledged only on 16 December 2002. Hence, he could not reasonably have been expected to know that his absence on that date would entail the adjournment of the proceedings. He argued that at the hearing held on 9 December 2002 there had been an exchange between the lawyers involved in the case as to the possibility of a conflict arising between the various defendants, including between his two clients and Ms A.M.D., represented by Ms D.K. However, on that date the court had only expressed the view that it was inappropriate to have that argument in the courtroom. No finding in respect of the conflict of interest had been made on that date. In any event, he had stepped down as A.M.D.’s defence lawyer. 12. The newspaper refused to publish a rectification within the meaning of the 1984 Press Act. On 21 December 2002 it merely published the advocate’s letter under the heading “Letters”, accompanied by the applicant’s unfavourable comment, essentially reiterating the allegation of negligence on his part. The applicant wrote that J.Z. had informed his clients by phone on 15 December 2002 that he had given Ms D.K. his authorisation to act on his behalf in their defence. It was further stated that his clients had been unaware that he would be absent on 16 December 2002. “[t]his is what they told me” – the applicant concluded. 13. Subsequently, the advocate sued the newspaper, the applicant and the editorinchief of Dziennik Zachodni for breach of his personal rights within the meaning of Articles 24 and 25 of the Civil Code (see paragraph 30 below). 14. At a hearing in that case held on 26 June 2003 the Katowice Regional Court heard as witnesses K.W. and A.D., the claimant’s clients and defendants in the criminal case. K.W. stated that the claimant had known as early as 9 December 2002 that he would not be able to attend the hearing scheduled for 16 December 2002 and that he had therefore authorised Ms D.K. to replace him. The criminal judge had accepted that authorisation without objections. A.D. made a similar statement. He added that after the hearing of 16 December 2002 he had briefly talked with a journalist in the court’s corridor and that he had not told her that he had not been informed about the advocate’s absence prior to that hearing. 15. The court had regard to the article published by the applicant on 17 December 2002 and to her comments on the claimant’s letter published on 21 December 2002 (see paragraphs 10 and 12 above), to the correspondence between the claimant and the defendant editor-in-chief, to the minutes of the hearings held on 9 and 16 December 2002 and to the parties’ statements. 16. The first-instance judgment was given on 18 September 2003. The Katowice Regional Court first recounted the exchange of views between the lawyers during the hearing held in the criminal case on 9 December 2002 as to the possible conflict of interest between their clients. It noted the criminal court’s statement, recorded in the minutes of that hearing, that there had been no basis at that time to find that a conflict of interest had indeed existed. It further found that on 15 December 2002 the lawyer had informed his clients and Ms D.K. on the phone that he would not be able to attend the hearing scheduled for the next day. On 16 December 2002 the criminal court had made an official declaration, again recorded in the minutes, that a conflict existed between the interests of A.M.D. and K.W. and that they could therefore not be represented by the same lawyer, and adjourned the hearing until 6 January 2003. The civil court noted that in her two articles the applicant had accused the claimant of unprofessional conduct. She had made an untrue statement to the effect that the claimant’s clients had not known before the hearing of 16 December 2002 that the claimant would not attend it. The articles had been widely discussed in local legal circles and had had a negative impact on the claimant’s situation. Some of his clients had lost their trust in him. 17. The court noted that the evidence before it had demonstrated that the applicant’s allegation that K.W. and A.D. had been informed of the claimant’s absence only at the hearing of 16 December 2002 was untrue. The claimant had already known about his absence on 9 December 2002. It was shown by the fact that on that date he had authorised another lawyer to act on his behalf in the defence of his clients. They had already been aware of it on that date. The criminal court had accepted this authorisation for Ms D.K. to act without comments or objections. On that date no finding had been made by that court that there had been a conflict of interest between the clients represented by the claimant and those represented by Ms D.K. In these circumstances, the claimant had had no reason to expect that his absence on 16 December 2002 would disturb the conduct of the proceedings. Consequently, his non-attendance on 16 December 2002 could not be seen as unjustified or his conduct regarded as nonchalant or disrespectful. 18. The court was of the view that the articles concerned had breached the claimant’s personal rights. The applicant had alleged that he had failed to attend the hearing and to justify his absence and that the hearing on 16 December 2002 had had to be adjourned because of his conduct. The court noted that under the Press Act the press enjoyed freedom of expression. That freedom was not absolute; it could be restricted in certain circumstances. In particular, the press was obliged to respect the rights of other persons. The Press Act obliged journalists to show diligence and integrity in gathering materials and publishing articles, because press publications could potentially harm individuals in a manner much more powerful than any other means of defamation. 19. The court was of the view that the applicant should have contacted the claimant before the publication of the article on 17 December 2002 and ask for his comments. She had failed to do so. 20. The article published by the applicant had lacked objectivity, contained undeserved criticism of the claimant and had been sensationalist rather than aimed at informing readers about the criminal case in a balanced manner. In particular, its title was particularly sensationalist. The newspaper had a wide readership in the region and therefore the impact of the article on public opinion was likely to have been significant and seriously detrimental to the claimant’s interests. Hence it was necessary to impose on the defendants an obligation to publish an apology and a rectification. 21. The court further imposed on the defendants an obligation to pay, jointly, 30,000 Polish zlotys (PLN) to a charity. It observed that that amount was significant enough to have an impact on the publisher, but not high enough to be seen as seriously detrimental to his financial position. 22. The applicant appealed, submitting that she had fulfilled her journalistic duties in reporting the case. Her view that the advocate had failed to act diligently in the representation of his clients had been well-founded and the firstinstance court had wrongly established the facts of the case. 23. On 7 October 2003 the Katowice Court of Appeal upheld the contested judgment, essentially sharing the conclusions of the lower court. 24. It observed that the right to freedom of expression guaranteed both by the Constitution and the Convention could be restricted in a democratic society for the purposes of the protection of individual rights such as dignity or personal rights within the meaning of the Civil Code and in compliance with the principle of proportionality enshrined in the Constitution. Where the exercise of the freedom of expression collided with the protection of the reputations of individuals, such a conflict had to be resolved with due regard being had to the case-law of the European Court of Human Rights. 25. The court noted that the applicant’s article published on 17 December 2002 concerned the conduct of a criminal case generating considerable interest among the general public. However, that did not imply that an interference with the claimant’s personal rights had been necessary. Judicial reporting had to be objective and strict priority had to be given to information, with due regard to the facts recorded by way of court records, which could be considered reliable; not to the reporter’s opinions and views. In the light of this principle, nothing justified the title “A Lawyer’s Nonchalance?”, referring to the lawyer who had been named in the article. Moreover, the text had contained untrue information to the effect that the court had made clear its intention to complain about the lawyer’s conduct to the local Bar Association. It had not been shown that the court had indeed made such a declaration or even suggested that it intended to do so. The applicant’ s intention to annoy the claimant and to undermine his professional reputation and integrity for the purposes of making the text more attractive or sensational could not be open to any doubt. 26. On 25 January 2006 the Supreme Court refused to entertain the applicant’s cassation appeal. 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.” 28. 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 editor-in-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 an individual’s personal rights” 29. 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.” 30. Article 24 of the Civil Code provides for ways of redressing infringements of personal rights. Under that provision, a person facing a risk of an infringement of his or her rights 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. 31. 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 ...” | 0 |
dev | 001-5355 | ENG | MLT | ADMISSIBILITY | 2,000 | PULLICINO v. MALTA | 3 | Inadmissible | Christos Rozakis | The applicant is a Maltese national, born in 1944. He is currently serving a fifteenyear prison sentence in Malta. He is represented before the Court by Professor Ian Refalo, Dr Marse-Ann Farrugia, Dr Joseph Galea Debono and Dr Edward Wood, all lawyers practising in Malta. A. The facts of the case, as submitted by the parties, may be summarised as follows. At the time of the events giving rise to his prosecution and conviction, the applicant was a Commissioner of Police in Malta. In 1987 the Government of the day ordered the re-opening of a criminal inquiry into the circumstances surrounding the death of a suspect at the police headquarters in 1981 which occurred when they were in opposition. In 1989, following the close of the inquiry, the applicant was charged with the following offences arising out of the incident: perjury; wilful homicide; giving false testimony under oath; and three separate charges of subornation of three police witnesses. On 7 February 1991 the Court of Criminal Appeal declared the three charges relating to witness subornation null and void. Before the applicant’s trial opened on 11 January 1993, the applicant, then on bail, appeared before a criminal court charged with having breached the conditions of his bail. On 7 January 1993 the court revoked the applicant’s bail, being satisfied that there was sufficient evidence to prove that the applicant had approached a prosecution witness in circumstances which showed that the intention was to corrupt the latter’s evidence at the forthcoming trial. The court ordered a ban on the publication of these proceedings. According to the applicant the trial opened against the background of intense and sustained media coverage and political discussion. The applicant cites among other incidents the appearance in a newspaper before the jury was empanelled of a report alleging that he had been found guilty of violations of human rights. The editor of the newspaper was subsequently found guilty on 30 June 1993 of contempt of court. The court which convicted the editor considered that the report could have had a negative affect on the jury causing irreparable harm to the applicant. He also points to the fact that a witness who had failed to appear at the bail revocation proceedings was subsequently tried on a perjury charge a couple of days before his own trial with the result that the public learned in press reports dated 8 and 23 January 1993 that his bail had been revoked. The trial commenced on 11 January 1993 and was presided over by the same judge who had earlier ordered the applicant’s bail to be revoked. Following empanelment the judge instructed the jury to disregard anything which they may have heard or read about the case. On 12 February 1993 the prosecution announced at the close of its case that it had no further evidence to present to the court. Among the witnesses called by the prosecution were three persons who had testified against him in the earlier proceedings in which his bail had been revoked. According to the applicant the result was to allow these witnesses to give evidence on the circumstances which led to the revocation of the applicant’s bail thus creating for him a new case to answer. Three police officers also gave evidence against the applicant. Two of these officers who had admitted to beating up the suspect had been granted a presidential pardon to secure their testimony against the applicant. Throughout this phase of the trial the applicant took detailed notes of the case against him in order to facilitate the giving of his own evidence in rebuttal at the appropriate moment. The applicant began his testimony on 15 February 1993. When the morning sitting was adjourned at 1.15 p.m., the prosecution requested the court to disallow the applicant use of his notes. The court upheld the request and ordered the confiscation not only of the notes but also other documentation including legal materials which the applicant had assembled in his place of confinement for the purposes of preparing defence. The afternoon sitting resumed at 3.30 p.m. on 15 February 1993. Before the jury were admitted to the courtroom, the applicant’s counsel informed the presiding judge that the applicant was experiencing difficulty in testifying without the aid of his notes. Submissions were made on this matter by counsel for both sides. The applicant’s counsel insisted that the materials in the case were so voluminous that it would be impossible for any witness to remember everything without the aid of reference materials. The presiding judge decided to postpone a decision on the issue. The applicant resumed his evidence. At 5.15 p.m. the prosecution commenced its cross-examination of the applicant. The cross-examination was later suspended, whereupon the applicant’s counsel again raised the issue of his client’s notes. Both counsel entered minutes in the record of the proceedings setting out their respective views on the matter. At a later stage the presiding judge ruled as follows: “Until such time as the accused concludes his testimony he is precluded from having access to any writing except that indicated in section 583 of the Code of Organisation and Civil Procedure.” The applicant concluded his evidence on 17 February 1993. The following days were taken up with matters such as the hearing of witnesses requested by the jury, the defence speech, the prosecution’s reply, the addresses to the jury and the latter’s deliberations and verdict. In his summing up to the jury the judge gave directions on the relevant law and stressed that it was for the jury to reach its decision on the basis of the facts and without taking into account any extraneous matters. The judge advised the jury that the applicant was to be presumed innocent until proved guilty and it was for the prosecution to prove guilt to the criminal standard of beyond reasonable doubt. He further stressed the need to subject to scrutiny the evidence of those witnesses who had testified in return for a pardon and that the applicant could not be convicted on the sole evidence of an accomplice. On 10 March 1993 the jury, after seven and a half days of deliberations, found the applicant not guilty of the charge of wilful homicide but guilty of being an accomplice to the crime of causing grievous bodily harm resulting in death. According to the applicant he was never charged with the latter offence but was nevertheless found guilty of it. He was found not guilty of the perjury charge but guilty of giving false evidence under oath. However, on the same day the court acquitted him of the perjury charge and declared the related charge to be time-barred. The applicant was sentenced to a term of imprisonment of fifteen years on the charge of being an accomplice to the crime of causing grievous bodily harm resulting in death. On 15 April 1994 the Court of Criminal Appeal confirmed the judgment and sentence of the trial court. Although the court held for the first time that the confiscation of a defendant’s notes at his trial was illegal under Maltese law, it nonetheless found that no miscarriage of justice had taken place at the applicant’s trial having regard to the strength of the evidence against him. As to the applicant’s complaint that the fairness of the trial was impaired on account of the adverse media reporting of the case, the court held that the balance between the applicant’s rights as an accused person and the freedom of the press had not been disturbed to the point where it could be said that the media coverage had a negative influence on the deliberations of the jury and the verdict reached. The court also ruled that the applicant had the opportunity to challenge the presence of the trial judge under domestic law. Since he had failed to do so it was no longer open to him to raise the issue of the judge’s impartiality on appeal. The applicant appealed to the First Hall of the Civil Court contending that he had been denied a fair trial in breach of the guarantees laid down in the Maltese Constitution and the European Convention on Human Rights. On 5 August 1997 his appeal was rejected, the court being of the opinion that the applicant’s complaints whether taken individually or collectively did not substantiate that he had been denied a fair trial. The applicant subsequently appealed to the Constitutional Court, which in its judgment of 18 August 1998 dismissed his appeal. The Constitutional Court acknowledged that the applicant’s right to a fair trial had been breached since the confiscation of his reference materials had seriously disrupted his defence. It stated in this regard that: “... the confiscation of the notes and other books of the applicant and this after he has already started testifying and without a forewarning, certainly hindered the testimony given by him in defence, both from the factual aspect and from the psychological one and this particularly because those notes which were prepared by him to conduct the defence did not necessarily refer to evidence previously given ... ...The Court is therefore of the opinion that in this regard and limited to this grievance, the right of the [applicant] to a fair hearing before the first Court was violated ...” However the Constitutional Court then proceeded to rule that the criminal proceedings, taken as a whole, had been fair. The court noted also that it was relevant that at no time before the Court of Criminal Appeal had the applicant asked to give evidence with the assistance of those materials. In line with the rulings of the appellate courts, the Constitutional Court also found that the applicant had not adduced any concrete proof that the jury or the trial or appeal court judges had been influenced by press coverage of the proceedings or related political statements. It noted, inter alia, that the jury had taken a considerable length of time in reaching a verdict. Furthermore, the court rejected the applicant’s challenge to the impartiality of the trial judge, inter alia, on the ground that he had not raised this matter at the appropriate moment in the trial and had not availed himself of domestic remedies for this purpose. B. Relevant domestic law Section 39 of the Constitution of Malta provides: “… (6) Every person who is charged with a criminal offence – … (b) shall be given adequate time and facilities for the preparation of his defence; …” Sections 506-508 of the Criminal Code provide as relevant: “506. The Court of Criminal Appeal may, if it thinks it necessary or expedient in the interest of justice – … (c) if it thinks fit receive the evidence, if tendered, of any witness (including the appellant) who is a competent but not compellable witness, and, if the appellant makes an application for the purpose, of the husband or wife of the appellant, in cases where the evidence of the husband or wife could not have been given at the trial except on such application, subject to the provisions of section 635. 507. Without prejudice to the generality of the last preceding section, where evidence is tendered to the court under that section, the court shall, unless it is satisfied that the evidence if received would not afford any ground for allowing the appeal, exercise its power under that section of receiving it if – (a) it appears to it that the evidence is likely to be credible and would have been admissible at the trial on an issue which is the subject of the appeal; and (b) it is satisfied that it was not adduced at the trial but that there is a reasonable explanation for the failure so to adduce it. 508. (1) Where an appeal against conviction is allowed by reason only of evidence received or available to be received by the Court of Criminal Appeal under sections 506 and 507 or by reason of a point raised under paragraph (b) of subsection (1) of section 501 and in each case it appears to the court that the interests of justice so require, the court may, instead of directing the entry of a judgment and verdict of acquittal as provided by subsection (2) of section 501 or by paragraph (b) of subsection (4) of section 503, order the appellant to be retried.” Section 583 of the Code of Organisation and Civil Procedure reads as follows: “A witness may refresh his memory by referring to any writing made by himself or by another person under his direction at the time when the fact occurred or immediately thereafter, or at any other time when the fact was fresh in his memory and he knew that the same was correctly stated in the writing; but in such case, the writing must be produced and may be seen by the opposite party. | 0 |
dev | 001-84856 | ENG | HUN | CHAMBER | 2,008 | CASE OF SIRKO AND OTHERS v. HUNGARY | 4 | Violation of Article 6 - Right to a fair trial | András Baka;Françoise Tulkens;Mindia Ugrekhelidze;Riza Türmen;Vladimiro Zagrebelsky | 4. The applicants were born in 1919, 1941, 1947 and 1955, and live in Etes, Bátonyterenye, Salgótarján and Etes, respectively. 5. In a real estate dispute, on 23 June 1994 Mr S. and others brought an action for a servitude (szolgalom) against the applicants. 6. After three hearings, the preparation of an expert opinion and the identification of a plaintiff's successor, on 18 June 1998 the Salgótarján District Court found for the plaintiffs. On appeal, on 12 November 1998 the Nógrád County Regional Court quashed this decision. 7. In the resumed proceedings, on 4 March 1999 the plaintiffs changed their action and claimed ownership. Subsequently, the proceedings were suspended pending the outcome of an underlying land register procedure. The latter ended on 8 January 2001. On 23 April 2001 the plaintiffs' representative requested the resumption of the principal case. 8. The proceedings resumed on 6 June 2001. After several hearings and the opinion of an expert, on 2 December 2003 the District Court dismissed the action. 9. On appeal, on 11 May 2004 the Regional Court changed this decision and granted the plaintiffs the servitude they sought. 10. On 20 September 2004 the applicants requested the re-opening of the case. On 27 April 2005 the Regional Court admitted their request. 11. In the reopened proceedings, on 8 December 2005 the District Court established that the plaintiffs' adverse possession of the servitude in question had not taken place. It ordered the servitude to be deleted from the land register. 12. On appeal, on 25 April 2006 the Regional Court changed this decision and upheld its decision of 11 May 2004. | 1 |
dev | 001-95604 | ENG | RUS | ADMISSIBILITY | 2,009 | BEREZOVSKIY v. RUSSIA | 4 | Inadmissible | Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | The applicant, Mr Nikolay Borisovich Berezovskiy, is a Russian national who was born in 1951 and lives in Tyumen. The respondent Government are represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights, and Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. On 14 November 2001 the Frunzenskiy District Court of Vladivostok upheld the applicant’s action against the Military Commissariat of the Primorye Region (the Commissariat) and awarded him 6,137 Russian roubles (RUB) in compensation for damage and court expenses. The District Court also held that the Commissariat should sign a contract with a commercial provider of communication services undertaking the obligation to pay 50% of monthly costs for phone services provided to the applicant. The judgment was upheld on appeal and became final on 17 December 2001. In August 2002 the applicant complained to the Frunzenskiy District Court about the Commissariat’s failure to enforce the judgment. On 26 August 2002 the Frunzenskiy District Court found that the Commissariat’s inactivity was unlawful. The judgment was not appealed against. On 16 September 2002 enforcement proceedings were closed as the Commissariat had paid RUB 6,137 to the applicant. However, a week later the proceedings were re-opened because the payment only constituted a partial enforcement of the judgment and because the Commissariat had not yet signed a contract with the communication services provider. According to the Government, on 18 September 2002 the Commissariat paid to the applicant RUB 611 as a 50 % compensation of monthly costs for phone services provided to the applicant. On 1 November 2002 the Commissariat signed the contract with the communication services provider and thus fully enforced the judgment of 14 November 2001 as upheld on 17 December 2001. | 0 |
dev | 001-107392 | ENG | SVK | CHAMBER | 2,011 | CASE OF KORMOS v. SLOVAKIA | 3 | Preliminary objection joined to merits and dismissed (victim);Violation of Art. 5-1;Remainder inadmissible;Non-pecuniary damage - award | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi | 5. The applicant was born in 1974 and lives in Štúrovo. 6. On 5 February 2004 the police arrested the applicant. He was accused of planning a robbery and remanded in custody from that date. 7. Several decisions extending the applicant’s detention were made. In particular, on 18 November 2004 the Žilina District Court extended his detention in the context of the pre-trial proceedings until 24 January 2005. 8. On 21 January 2005 the public prosecutor indicted the applicant and several other persons before the Žilina Regional Court. 9. The applicant requested to be released, arguing that the Regional Court had not extended his detention after the expiry of the period indicated in the District Court’s decision of 18 November 2004. 10. On 20 April 2005 the Regional Court ordered the applicant’s release. Upon a complaint lodged by the public prosecutor the Supreme Court decided on 24 May 2005 that the applicant should remain remanded in custody. 11. On 2 June 2005 the Regional Court dismissed the applicant’s request for release. On 15 June 2005 the Supreme Court dismissed a complaint by the applicant against that decision. 12. On 22 July 2005 the applicant complained to the Constitutional Court that his detention in the period after 24 January 2005 and the Supreme Court’s above decision of 24 May 2005 were both unlawful. In a separate complaint lodged on 31 August 2005 the applicant complained about the refusal to release him in the proceedings leading to the Supreme Court’s decision of 15 June 2005. 13. On 5 February 2006 the applicant was released. 14. On 10 May 2006 the Constitutional Court found that the applicant’s right under Article 5 § 1 had been violated as a result of the Supreme Court’s decision of 24 May 2005. There had been no judicial decision extending his detention after 24 January 2005, and there existed no justification for that situation. 15. The Constitutional Court quashed the Supreme Court’s decision of 24 May 2005 in so far as it concerned the applicant and ordered the Supreme Court to reimburse the applicant’s costs in the constitutional proceedings. It dismissed the applicant’s claim for just satisfaction with reference to a conclusion which a different chamber of the Constitutional court had reached in the case of one of the applicant’s co-accused. According to that conclusion, (i) the finding of a violation of Article 5 § 1 provided appropriate redress to the plaintiff and (ii) the Supreme Court’s decision of 24 May 2005 was based on that court’s earlier practice, which, however, was not in accordance with practice under the Convention. 16. In a judgment of 30 November 2006 the Constitutional Court found that by its decision of 15 June 2005 the Supreme Court had breached the applicant’s right under Article 5 § 1 of the Convention. In particular, the Supreme Court should have remedied the situation resulting from the applicant’s unlawful detention from 25 January 2005 by ordering his release. 17. The judgment stated, in particular: “In the Constitutional Court’s view, the jurisdiction of the court involved at the pre-trial stage ended with the filing of the indictment on 21 January 2005. The indictment as such is not a ground for continued detention of a person, as it does not explicitly follow from the law, and it is inadmissible to extend the possibilities of restricting a person’s liberty by extensive interpretation of several provisions of the Code of Criminal Procedure. However, a court’s decision on detention of a person given at the pre-trial stage can constitute a ground for such person’s detention for a short period following the indictment. Otherwise it would be practically impossible to ensure continued detention of a person after an indictment has been filed. In the circumstances, a ground for the applicant’s detention existed until 25 January 2005. The detention should have been extended by a decision given no later than 25 January 2005 if it was to continue after that date. In the absence of any such decision, the restriction of the applicant’s liberty after 25 January 2005 was unlawful. The unlawfulness of the applicant’s deprivation of liberty after 25 January 2005 cannot be justified retrospectively, not even by a judicial decision. Subsequent judicial decisions could not have extended the applicant’s detention, as it had ended on 25 January 2005. The only existing possibility was to remand the applicant in custody again. As this was not done, his subsequent deprivation of liberty had no legal ground.” 18. The Constitutional Court quashed the Supreme Court’s decision of 15 June 2005, granted the equivalent of 2,818 euros (EUR) to the applicant as just satisfaction and ordered the Supreme Court to reimburse the applicant’s costs. 19. The following provisions of the Code of Criminal Procedure of 1961 (Law no. 141/1961 Coll., in force until 31 December 2005) are relevant in the present case. 20. Pursuant to Article 71 § 1, a person’s detention in the context of both pre-trial proceedings and during proceedings before a trial court may only last as long as necessary. Where detention in the context of pre-trial proceedings is to exceed six months, it may be extended at a public prosecutor’s request up to one year by a judge or to a maximum of two years by a court’s chamber. 21. Article 71 § 2 provides that a person’s detention in the context of both pre-trial proceedings and during trial must not exceed two years. In justified cases the Supreme Court may extend its duration to a maximum of three years and in cases of particularly serious offences up to five years. Under paragraph 3 of Article 71, a proposal for extension of a person’s detention is to be submitted by a public prosecutor in the pre-trial proceedings and by the president of the court’s chamber during the trial. 22. Article 72 § 1 obliges investigators, prosecutors and judges to examine, at each stage of criminal proceedings, whether reasons for the accused person’s detention persist. In pre-trial proceedings a judge is obliged to do so only when deciding on a public prosecutor’s proposal to extend detention or to modify the reasons for it or when deciding on an accused person’s application for release. Where a reason for an accused person’s detention no longer exists, the accused must be released immediately. 23. Article 72 § 2 entitles an accused to apply for release at any time. When the public prosecutor dismisses such an application in the course of pre-trial proceedings, he or she must submit it immediately to the court. The decision on an application for release must be taken without delay. If an application is dismissed, the accused may only renew it fourteen days after the decision has become final unless he or she cites other reasons justifying his or her release. 24. Pursuant to Article 192, where the court carries out a preliminary examination of the indictment of a person who is detained, it shall also decide whether that person is to remain in custody. 25. In accordance with the Supreme Court’s practice, the time-limits mentioned in Article 71 § 1 of the Code of Criminal Procedure of 1961 concerned exclusively situations where a decision on a public prosecutor’s proposal was to be made in the context of pre-trial proceedings. However, where an indictment had been filed within a shorter time than the two-year period mentioned in Article 71 § 1, the law did not require that a request for continued detention of the accused persons be made or that a separate decision should be made on their continued detention, with the exception of cases where the indictment had been filed less than ten days before the expiry of the two-year maximum period of detention. 26. Pursuant to a Supreme Court’s standpoint of 1975 (Rt 5/75), Article 192 of the Code of Criminal Procedure requires a court to decide on further detention of the accused where it carries out a preliminary examination of the indictment. Accordingly, where the presiding judge concludes, on the basis of the file, that a preliminary examination of the indictment is not required and considers the detention of the accused to be lawful, there is no need for a separate decision of the court chamber on continued detention of the accused. However, where the accused applies for release, that application must be decided upon without delay, in accordance with Article 72 § 2 of the Code of Criminal Procedure. 27. In judgment I. ÚS 6/02 the Constitutional Court noted that the Code of Criminal Procedure did not explicitly require that a decision on extension of an accused person’s detention be given in cases where an indictment had been filed and where the detention, both at the pre-trial stage and during the trial, had not exceeded two years. 28. It held, however, that the filing of an indictment alone did not as such justify a person’s continued detention. The court dealing with the case was required to decide explicitly on further detention of the accused prior to the expiry of the period for which the detention had been extended in the context of pre-trial proceedings. 29. In its judgment the Constitutional Court referred in particular to the guarantees laid down in Article 5 § 1 of the Convention and the Court’s judgment in Stašaitis v. Lithuania (no. 47679/99, 21 March 2002, §§ 59-61). 30. In that case the Constitutional Court found no breach of Article 5 § 1 as the ordinary court involved, both in the context of a preliminary examination of the indictment and in reaction to the accused person’s request for release, had decided that the reasons for the latter’s detention persisted. That decision had the same effect as a decision to extend the accused person’s detention. 31. In the above case, which concerned one of the present applicant’s co-accused, the detention in the context of pre-trial proceedings had been extended until 24 January 2005. Prior to its expiry, on 21 January 2005, the accused was indicted. In its judgment the Constitutional Court found that the Supreme Court had breached the plaintiff’s right under Article 5 § 1 of the Convention, in that there had been no judicial decision extending his detention after 24 January 2005 and there existed no justification for that situation. It was irrelevant that courts at two levels had dismissed the accused person’s application for release on 14 January 2005 and 23 February 2005 respectively, as those decisions related to detention in the context of pre-trial proceedings, that is prior to the filing of the indictment. In those circumstances, any relevant decision on further detention of the accused could have been taken only by the criminal court before which the accused had been indicted. 32. With reference to its judgment I. ÚS 6/02 of 4 December 2002, the Constitutional Court held that for a detention to be lawful it must always rely on a court decision. Since May 2006 the Constitutional Court has confirmed that opinion in a number of judgments, including the cases of the applicant and another two of his co-accused. 33. In judgment I. ÚS 115/07 the Constitutional Court confirmed that the filing of an indictment alone does not suffice for continued detention of an accused to be lawful. The court dealing with the criminal case which follows an indictment is required to take a decision on the accused person’s detention prior to the expiry of the period for which the latter had been remanded in the context of pre-trial proceedings. The Constitutional Court found a breach of the accused person’s right under Article 5 § 1 of the Convention and ordered his immediate release. 34. The new Code of Criminal Procedure (Law no. 301/2005 Coll.) entered into force on 1 January 2006. 35. Article 76 § 5 provides, inter alia, that a court is obliged to decide on further detention of an accused within fifteen days of his or her indictment (or submission for its approval of an agreement between the prosecution and the accused on guilt and punishment) unless it has already decided on detention of the accused under provisions which govern the examination of indictments. 36. The explanatory report to the draft Code of Criminal Procedure of 2005 indicates that the above provision accentuates the judicial control of a person’s detention following his or her indictment and that the amendment is also in reaction to the Constitutional Court judgment I. ÚS 6/02 of 4 December 2002. 37. The State Liability Act 2003 was enacted with effect from 1 July 2004. 38. Pursuant to section 7, where a decision on arrest, detention or any other deprivation of liberty was quashed as being unlawful or where there was wrongful official action in that context, a person affected by it is entitled to compensation for damage. 39. The State is liable for damage caused by wrongful official action which comprises, inter alia, a public authority’s failure to take action within a set time-limit, inactivity, or any other unlawful interference with rights and legally recognised interests of individuals and legal entities (section 9(1)). 40. Under section 17 the compensation is to cover pecuniary damage, including loss of profit, and, where appropriate and necessary, non-pecuniary damage. 41. In a judgment of 16 March 2007 (in case no. 4C 258/2006) the Brezno District Court allowed an action for damages by two individuals against the State under the State Liability Act 2003 and ordered the defendant to pay the costs of their defence in a criminal trial on charges of 2005 which had ended with their acquittal with final and binding effect in 2006. On 22 November 2007 the Banská Bystrica Regional Court upheld that judgment following an appeal by the defendant. 42. In a judgment of 17 August 2009 (in case no. 19C 47/2006) the Bratislava I District Court granted an action for damages by an individual against the State under the State Liability Act 2003 and awarded the claimant a sum in compensation for non-pecuniary damage caused by wrongful official action in connection with his detention pending a criminal trial. The impugned wrongful official action concerned the extension by a decision of 12 October 2004 of the claimant’s detention pending trial, until 28 April 2005. The action was preceded by a judgment of the Constitutional Court of 19 October 2005 (in case no. I. ÚS 65/05) in which the Constitutional Court had found a violation of the plaintiff’s rights under Article 5 §§ 3 and 4 in connection with the same facts. However, the Constitutional Court had made no award to the claimant of just satisfaction as he had made no claim to that effect. | 1 |
dev | 001-95651 | ENG | TUR | CHAMBER | 2,009 | CASE OF ARAT v. TURKEY | 3 | Preliminary objections joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies;Six month period);Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect);Violation of Article 6 - Right to a fair trial | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria | 4. The applicant was born in 1961 and lives in Diyarbakır. He is the owner of a grocery shop in Diyarbakır which he runs with his brother. 5. According to the arrest report, drafted on 15 February 2001 at around 10.45 a.m. and signed by the applicant and his brother, police officers had received information that shopkeepers on Bal Street were not opening their shops as a protest to mark the second anniversary of the arrest of Abdullah Öcalan, the leader of the PKK (the Kurdistan Workers' Party), an illegal armed organisation. When the officers arrived at the street in question they asked the applicant and his brother to open their shop. The applicant and his brother swore at them and shouted slogans. In the meantime, a small crowd of children and women had started to throw stones at the police cars. The police officers requested, via wireless radio, reinforcements from the police station. Two police officers sustained injuries while trying to arrest the applicant and his brother. The police officers then used force to subdue the applicant and his brother before arresting them for obstructing an official in the course of his duties. It is also stated that the suspects reached for the gun of one of the police officers. It appears that five police officers took part in the applicant and his brother's arrest. 6. In his application form the applicant submitted that, on 15 February 2001, before he had opened the shutters of his shop, a number of police officers arrived and started smashing the shop shutters and windows with sledgehammers. When the applicant and his brother attempted to stop the police officers, they were beaten up, arrested and subsequently placed in police custody. 7. According to a medical report drawn up at the Diyarbakır branch of the Forensic Medicine Institute the same day, at 2.20 p.m., there was a light 4 x 1cm reddish bruise and a traumatic oedema on the front of the applicant's left arm. There was also another red-coloured bruise, measuring 15 cm by 3cm, on the outside of his left thigh. 8. The same doctor also found a number of injuries on the applicant's brother, including a 1 x 1 cm wound on the right parietal region, a 4 x 1 cm bruise on the right side of his neck, a 10 x 3 cm bruise on the right side of his lower back and left shoulder, slight erosion on his right wrist and a number of superficial grazes. 9. In the meantime, on the same day, two of the police officers were examined first at the State Hospital, and later at the Diyarbakır branch of the Forensic Medicine Institute. 10. According to the medical report drawn up at the State Hospital, at 10.50 a.m., police officer M.A.A. had sustained a haematoma on his left eye, had redness and sensitivity on the right side of his chest, a haematoma and swelling on his left hand and a swelling and superficial graze on his right hand. At 1.30 p.m. Mr M.A.A. was examined at the Forensic Medicine Institute, where the doctor found that the police officer had sustained a haematoma on his left eye and a traumatic oedema on his left cheek, pain and sensitivity on his left hand and the right side of his ribs and that he had slight erosion on the right hand. 11. According to the medical report drawn up at the State Hospital, at 10.50 a.m., police officer H.A.K. had a broad patch of redness on the right side of his neck and shoulder region. At 1.30 p.m. he was examined at the Forensic Medicine Institute, where the doctor found that the police officer had a number of reddish bruises on the right and front of the neck and felt pain and sensitivity in the right shoulder. 12. On 17 February 2001 the prosecutor at the Diyarbakır State Security Court granted the police authorisation to detain the applicant and seven other suspects who had been detained for similar acts on that date for an additional period of two days. 13. On 18 February 2001, while he was still being detained in police custody, the applicant was questioned. In the minutes of the questioning, the applicant was recorded as having stated that he sympathised with the policies of the PKK. On 13 February 2001 he had found a leaflet on the floor outside the shop that had been prepared and distributed by the PKK, inviting local businesses not to open their shops on 15 February. Following this invitation, he had intended not to open his shop until 1.30 p.m. He stated that he had followed such instructions in the past. 14. On 19 February 2001 the applicant was examined by a doctor at Diyarbakır State Hospital who noted a 5 cm bruise on the front of his right arm, a 10 cm bruise on the top of his left foot and a 5 cm bruise on his left thigh. 15. The same day the applicant was brought before the prosecutor at the Diyarbakır State Security Court and then before the duty judge at the same court, where he retracted the statement he had made in police custody and said that he had merely been late in opening his shop on 15 February because he had guests at his house; he had not been protesting at all. In the statement taken by the prosecutor, the applicant was recorded as having said that “he had been beaten up by the police officers but he did not wish to make a complaint”. Before the duty judge the applicant claimed that a police officer named A.K. had hit him with a truncheon when he had tried to prevent the latter from breaking his door down, and that he had neither hit any of the police officers nor shouted any slogans. The duty judge ordered the applicant's remand in custody. 16. On 21 February 2001 the prosecutor at the Diyarbakır State Security Court filed an indictment charging the applicant and his brother with the offence of aiding and abetting an illegal organisation, under Article 169 of the Criminal Code. 17. On 26 February 2001 the criminal proceedings before the Diyarbakır State Security Court (hereinafter “the SSC”) commenced. 18. In the meantime, on 20 February 2001 the applicant submitted a written petition to the trial court requesting his release. In particular, he claimed that, during his arrest, the police had beaten him and his brother with truncheons, but that he was not complaining about any particular police officer. 19. On 26 April 2001 the SSC held its first hearing, when it heard evidence from the accused, the police officers and defence witnesses. The applicant claimed, inter alia, that the police officers had tried to break the shutters of his shop with a sledgehammer and that, when he had tried to prevent them, by holding the sledgehammer, they had beaten and arrested him. He also retracted his statements given to the police on the ground that he had signed them without reading them. The four defence witnesses heard by the court stated that they had not seen the applicant shouting, resisting or swearing at the police or a crowd of people throwing stones at the police. Two of the four defence witnesses stated that the applicant had been beaten during his arrest. 20. The police officers who had arrested the applicant reiterated that the applicant and his brother had refused to open the shutters of their shop and that when, in accordance with the order from the Governor, they had tried to break open the shutters, the applicant and his brother had sworn at them and attacked them. They stated that a crowd of people had been shouting and swearing and attacking them, but that by the time the reinforcements arrived they had all dispersed; only the applicant and his brother had been arrested. 21. In hearings held on 7 and 28 June 2001 both the prosecutor and the applicant's representative stated that they did not want an additional investigation. On the latter date the trial court released the applicant pending trial. It also decided to hear all the witnesses once again in order to dispel factual contradictions. After having reheard two of the defence witnesses, one of whom altered his testimony, on 21 November 2001 the trial court considered that, although certain inconsistencies remained, the facts had been sufficiently elucidated. 22. On 28 February 2002 the trial court found the applicant guilty as charged and sentenced him to three years and nine months' imprisonment. The applicant's brother was acquitted. 23. The applicant appealed and asked the Court of Cassation to hold a hearing. In his grounds of appeal the applicant claimed, in particular, that his statements given to the police had been taken under duress. He reiterated that, during the arrest, he and his brother had been beaten by the police officers, as attested by eyewitnesses, whereas there was no evidence that he and his brother were responsible for the injuries sustained by the police officers. 24. In his written observations submitted to the Court of Cassation, the prosecutor asked for the conviction to be quashed as the applicant's guilt had not been proved beyond reasonable doubt. 25. On 11 November 2002 the Court of Cassation, observing that the applicant's lawyer was absent, decided not to hold a hearing and upheld the applicant's conviction. 26. On 26 August 2003 the applicant was released from prison. 27. On 16 October 2003, upon a request by the applicant to benefit from Law no. 4959, the Diyarbakır State Security Court reviewed its previous decision and found that the applicant's conviction and sentence met the requirements of this Law. Accordingly, it “annulled” the applicant's conviction and sentence. Since no one objected to that decision, it became final on 24 October 2003. 28. A description of the relevant domestic law at the material time can be found in the Eser Ceylan v. Turkey judgment, (no. 14166/02, § 19, 13 December 2007), and the Göç v. Turkey judgment ([GC], no. 36590/97, § 34, ECHR 2002-V). 29. Law no. 4959 (the Law on Reintegration into Society), which entered into force on 6 August 2003, provided for amnesties under certain conditions and reduced sentences for members of terrorist organisations. | 1 |
dev | 001-22887 | ENG | SVK | ADMISSIBILITY | 2,002 | PASKA v. SLOVAKIA | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Igor Paška, is a Slovakian national who was born in 1945 and lives in Zvolen. The respondent Government were represented by Mr P. Vršanský, their Agent. The facts of the case, as submitted by the parties, may be summarised as follows. On 11 September 1991 the applicant lodged an action for restitution of property, for compensation and for the protection of his good name and reputation with the Bratislava III District Court. The action was lost and the applicant submitted, at the District Court’s request, a new action on 5 February 1992. He claimed restitution of his property and damages from an individual. The applicant alleged, in particular, that prior to his emigration from Czechoslovakia in 1989, he had deposited his belongings and also documents containing his intellectual property to the defendant, and that the latter refused to restore that property to him. On 9 March 1992 the judge heard the applicant. Hearings were scheduled for 20 October 1992, 17 November 1992 and 3 December 1992. They were adjourned on each occasion as the court considered it necessary to clarify the position in the case and to take further evidence. On 27 July 1993 the Bratislava City Court dismissed the applicant’s request for exclusion of the District Court judge. On 15 December 1994 the District Court allowed another person to join the proceedings as plaintiff and granted the applicant’s request for exemption from the obligation to pay court fees. On 17 March 1995 the Bratislava City Court dismissed the defendant’s request for exclusion of the Bratislava III District Court judge dealing with the case. A hearing before the Bratislava III District Court was held on 26 September 1996. Subsequently the case was assigned to another judge. A hearing before the Bratislava III District Court was scheduled for 31 January 2000. On 14 January 2000 the applicant challenged all judges of the court and requested that the hearing be adjourned. On 14 March 2000 the District Court submitted the request for exclusion of its judges to the Bratislava Regional Court. The latter dismissed the request on 25 May 2000. On 5 February 2001 the Supreme Court dismissed the plaintiffs’ request for exclusion of the Regional Court judges. On 19 September 2001 the District Court adjourned the case as the applicant had challenged the judges of that court. On 5 February 2002 the Bratislava Regional Court returned the file to the District Court as the applicant’s request contained no relevant new information. On 24 April 2002 the Bratislava III District Court adjourned the case as the plaintiffs had challenged the judges of both the Bratislava III District Court and of the Bratislava Regional Court. The proceedings are pending. On 27 November 1991 the applicant lodged an action for protection of his good name and reputation and for damages against an individual and against the Bratislava II District Office. On 27 February 1992 the applicant submitted further information to the Bratislava III District Court which the latter found to be incomprehensible, as in the case of his first submission of 27 November 1991. Hearings scheduled for 10 August 1992 and 7 September 1992 had to be adjourned as both the applicant and the defendant failed to appear. On 12 and 26 October 1992 the District Court adjourned the case. On 18 January 1993 the Bratislava III District Court dismissed the action. The applicant appealed. On 25 June 1993 the Bratislava City Court quashed the judgment and sent the case back to the District Court. The decision stated that the District Court should invite the applicant to specify his claims and decide on the case in the light of the information thus obtained. On 15 November 1993 the applicant challenged the District Court judge. His request was dismissed by the appellate court on 29 December 1993. In the meantime, on 24 November 1993, the applicant completed his original action. On 14 June 1994 the first instance court submitted the case file to the Bratislava City Court for a decision on the applicant’s request for exclusion of the judge dealing with the case. On 18 August 1994 the Bratislava City Court sent the case back to the first instance court without taking a decision. It pointed out that the applicant’s submissions did not contain any new facts. On 16 May 1995 the president of the Bratislava III District Court informed the applicant that the case would be proceeded with after problems arising from the shortage of judges had been resolved. On 2 January 1997 the president of Bratislava III District Court assigned the case to himself. Subsequently the case was assigned to another judge. On 23 February 2001 the Bratislava Regional Court decided that the Bratislava III District Court judges were not excluded. By a decision delivered on 31 August 2001 the Bratislava III District Court discontinued the proceedings. The court noted that the applicant’s action concerned the protection of his personality rights. The decision further stated that the first defendant had died in 1997 and that the second defendant, the Bratislava II District Court, was not a legal person and that it therefore lacked standing in the proceedings. The applicant filed an appeal. The proceedings are pending. On 28 May 1996 the applicant lodged a petition, pursuant to Article 130 (3) of the Constitution, alleging a violation of his right to a hearing without undue delays in the above two sets of proceedings before the Bratislava III District Court. On 23 July 1997 the Constitutional Court declared the petition admissible. On 28 July 1997 and on 18 September 1997 the Constitutional Court invited the applicant to appoint a lawyer to represent him in the proceedings as required by the Constitutional Court Act. On 30 September 1997 the applicant requested the Bar Association to assign a lawyer to represent him before the Constitutional Court free of charge. He explained that several lawyers had refused to do so. The applicant informed the Constitutional Court about the difficulties in finding a representative and requested an extension of the time-limit set for appointing a lawyer. On 30 October 1997 the Constitutional Court discontinued the proceedings on the ground that the applicant was not represented by a lawyer. On 25 November 1997 the president of the Bar Association asked the applicant to submit a copy of his constitutional petition with a view to examining the request of 30 September 1997. Article 48 (2) of the Constitution provides, inter alia, that every person has the right to have his or her case tried without unjustified delay. Pursuant to Article 130 (3) of the Constitution, as in force until 30 June 2001, the Constitutional Court could commence proceedings upon the petition (“podnet”) presented by any individual or a corporation claiming that their rights have been violated. As from 1 January 2002, the Constitution has been amended in that, inter alia, individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to Article 127 the relevant part of which reads as follows: “1. The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 2. When the Constitutional Court finds that a complaint is justified, it shall deliver a decision stating that a person’s rights or freedoms set out in paragraph 1 were violated as a result of a final decision, by a particular measure or by means of other interference. It shall quash such a decision, measure or other interference. When the violation found is the result of the failure to act, the Constitutional Court may order that [the authority] which violated such rights or freedoms should take the necessary action. At the same time the Constitutional Court may return the case to the authority concerned for further proceedings, order that such an authority abstain from violating fundamental rights and freedoms ... or, where appropriate, order that those who violated the rights or freedoms set out in paragraph 1 restore the situation existing prior to the violation. 3. In its decision on a complaint the Constitutional Court may grant adequate financial satisfaction to the person whose rights under paragraph 1 were violated.” ... The implementation of the above constitutional provisions is set out in more detail in Sections 49 - 56 of Act No. 38/1993 (the Constitutional Court Act), as amended with effect from 20 March 2002. Pursuant to Section 20 (2) of the Constitutional Court Act, a person who wishes to bring proceedings before the Constitutional Court shall submit the authority of a lawyer representing him or her in the proceedings. After 20 March 2002 the Constitutional Court delivered a number of decisions in which it found a violation of Article 48 (2) of the Constitution, ordered the general court concerned to avoid any further delays in the proceedings and awarded the successful complainants financial compensation in respect of delays which had already occurred. According to an explanatory letter by the president of the Constitutional Court of 6 June 2002, nothing prevents the Constitutional Court from dealing with complaints about length of proceedings in cases in which proceedings have also been instituted before the European Court of Human Rights provided that the domestic proceedings complained of are still pending at the moment when the constitutional complaint is filed. In its decision no. I. ÚS 61/2000 of 16 November 2000 the Constitutional Court pointed out that it has been its practice to examine thoroughly all requests for a lawyer to be appointed, at State cost, to represent persons in proceedings before it. The decision further states that the Constitutional Court has regularly granted such requests when they are justified by the material and personal situation of the person concerned provided that the other statutory requirements for declaring the case admissible are met. Subsequently the above position has been confirmed in a number of cases. In deciding on requests for a lawyer to be appointed at the cost of the State the Constitutional Court has regard to the relevant provisions of the Code of Civil Procedure governing the exemption of a party from the obligation to pay court fees and the appointment of a legal representative for such a person. | 0 |
dev | 001-68775 | ENG | TUR | CHAMBER | 2,005 | CASE OF ERTURK v. TURKEY | 4 | Violation of Art. 6-1;Non-pecuniary damage - financial award | null | 4. The applicant was born in 1959 and lives in Ankara. 5. On 21 November 1983 the applicant was arrested and taken into police custody on suspicion of membership of an illegal organisation, the DevYol (Devrimci Yol - the Revolutionary Way). 6. On 30 December 1983 the Ankara Martial Law Court ordered the applicant’s detention on remand. 7. On 14 December 1988 the applicant was released pending trial. 8. On 19 July 1989 the Ankara Martial Law Court convicted the applicant of membership of an illegal organisation and sentenced him to seven years’ imprisonment. 9. On 28 December 1996 the Court of Cassation quashed the judgment of the Ankara Martial Law Court on the ground that the latter had misinterpreted the domestic law in respect of the offence in question. 10. Subsequent to the promulgation of Law no. 3953 on 27 December 1993, which abolished the jurisdiction of the Martial Law Courts, the Ankara Assize Court acquired jurisdiction in the applicant’s case. 11. On 6 May 1996 the Ankara Assize Court commenced the applicant’s trial. 12. On 28 May 2004 the applicant was convicted of attempting to undermine the constitutional order under Article 146 of the Criminal Code. The first-instance court however held that there was no need for the applicant’s imprisonment, taking into account his previous custody and detention on remand. 13. The proceedings are still pending. | 1 |
dev | 001-106786 | ENG | TUR | CHAMBER | 2,011 | CASE OF KALAYLI v. TURKEY | 4 | Violation of Art. 5-4 | David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Paulo Pinto De Albuquerque | 4. The applicant was born in 1963 and lives in Izmir. 5. On 12 December 2003 the Izmir Magistrates’ Court issued an arrest warrant for the applicant on suspicion of assault and attempted murder. 6. On 18 December 2003 the Izmir Public Prosecutor filed a bill of indictment charging the applicant with the offences of assault and attempted murder. 7. On 6 October 2004 the applicant was arrested. 8. On 9 October 2004 the Antalya Magistrates’ Court ordered the applicant’s detention on remand. 9. On 1 December 2005 the Izmir Assize Court sentenced the applicant to six years and two months’ imprisonment. 10. On 21 February 2007 the Izmir Assize Court ordered the applicant’s release pending trial, having considered the time spent under detention on remand. 11. On 6 June 2007 the Court of Cassation upheld the judgment of 1 December 2005. 12. Between 12 October 2004 and 1 December 2005, the Izmir Assize Court examined the applicant’s continued detention at the end of every hearing, either of its own motion or upon the applicant’s requests. On each occasion, the court ordered the applicant’s continued detention, having regard to the state of the evidence, nature of the offence, content of the file and the incomplete collection of evidence. 13. A description of the relevant domestic law and practice prior to the entry into force of the new Code of Criminal Procedure (CCP) (Law no. 5271) on 1 June 2005 may be found in Çobanoğlu and Budak v. Turkey, no. 45977/99, §§ 29-31, 30 January 2007). The current practice under Law no. 5271 is outlined in Şayık and Others v. Turkey (nos. 1966/07, 9965/07, 35245/07, 35250/07, 36561/07, 36591/07 and 40928/07, §§ 13-15, 8 December 2009). | 1 |
dev | 001-94990 | ENG | TUR | CHAMBER | 2,009 | CASE OF GASYAK AND OTHERS v. TURKEY | 3 | Remainder inadmissible;Violation of Art. 2 (procedural aspect);Non-pecuniary damage - award;Dommage matériel - claim dismissed | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | 5. The applicants were born in 1975, 1974, 1961 and 1972 respectively. They all live in the town of Cizre. 6. In March 1994 Abdulaziz Gasyak, Süleyman Gasyak, Yahya Akman and Ömer Candoruk were killed. The applicants were related to these people as follows: Sabri Gasyak is the brother of Abdulaziz Gasyak; Leyla Gasyak was the wife of Süleyman Gasyak; İsa Akman is the father of Yahya Akman and Hanım Candoruk was the wife of Ömer Candoruk. The application was brought by the applicants on their own behalf and on behalf of the remaining heirs of the four deceased men. 7. The facts of the case, particularly concerning events which took place on 6 March 1994, are disputed by the parties. 8. The facts as presented by the applicants are set out in Section B below (paragraphs 9-21). The Government’s submissions concerning the facts are summarised in Section C below (paragraph 22).The documentary evidence submitted by the applicant and the Government is summarised in Section D (paragraphs 23-50). 9. The applicants’ four relatives were working as tradesmen, buying food, tea and tobacco from the area near the Turkish-Iraqi border and selling them in the nearby town of Cizre and the surrounding areas. 10. On 6 March 1994 the four men were travelling from Cizre to Silopi in a vehicle which was being driven by Ömer Candoruk. They were stopped by gendarmes at a checkpoint approximately five to six kilometres outside the town of Silopi. Two unmarked Renault cars were parked nearby. At that point, a certain Mr A.M., who lived in Cizre and who knew the four men, was travelling from Cizre to Silopi in a minibus and saw the four men arguing with a group of gendarme officers in plain clothes. Abdulhakim Güven and Adem Yakın, who used to be PKK members but who had been working for the gendarmerie since their arrests, were also with the gendarme officers. MM. Güven and Yakın were referred to in the area as “confessors”. The applicants’ relatives were then put into vehicles. They were joined by gendarme officers and the confessors and the cars began driving in the direction of Cizre. 11. Mr A.M. then saw something being thrown out of one of the vehicles. He stopped and picked it up and realised that it was Ömer Candoruk’s driving licence. The vehicles then turned off the main road and started heading towards Holan village. Mr A.M. did not see the vehicles again. 12. According to the information the applicants subsequently gathered from a number of villagers living in Holan village, one of their relatives had jumped out of the moving vehicle and tried to run away, but was shot by one of the confessors or the gendarme officers. His body was put in the boot of one of the vehicles. 13. The three surviving men were then taken to the gendarme station in Bozalan village, which is located approximately seven to eight kilometres from Cizre. Before sunset they were taken in the same vehicles to a place nearby and were shot and killed. 14. The killing was witnessed by a certain Mrs E.T. and her female friends who were working in a nearby field. 15. The following day, 7 March 1994, Mr A.M. told the applicants what he had seen and gave them Ömer Candoruk’s driving licence. The applicants then contacted the police and the gendarmerie in Silopi, but were unable to obtain any information from them. The same day Mrs E.T. told the applicants about the fate of their relatives. The applicants then contacted the gendarmerie and informed the offices of the prosecutor and the governor. 16. On 8 March 1994 gendarmes found the bodies of the four men covered with soil and stones. They had all been shot dead and their heads smashed with stones. An on-site report prepared the same day stated that the killings had probably been carried out by members of the PKK in a revenge attack because the deceased had been village guards. However, the deceased had never agreed to become village guards, contrary to the advice of the gendarmerie. 17. No other action was taken in the area by the gendarmes. They did not question the applicants or any of the persons present in the vicinity. 18. Furthermore, no steps were taken by the Cizre prosecutor who, on 5 April 1994, sent the investigation file to the prosecutor at the Diyarbakır State Security Court who had jurisdiction to continue the investigation. 19. The investigation carried out by the prosecutor in Diyarbakır was limited to the sending of occasional letters to the gendarmerie, asking them to search for the perpetrators. The gendarmerie replied that they had been unable to find the perpetrators despite their searches. 20. The number plate of the vehicle in which the applicants’ relatives had been travelling on 6 March 1994 was subsequently changed, and the vehicle continued to be used by confessors and other plain clothes officials in Cizre. 21. The authorities unsuccessfully searched for the two confessors, MM. Güven and Yakın. The requests by the prosecutor to be informed of their whereabouts were ignored by the gendarmerie for a long time. Mr Güven was subsequently found and questioned by a police officer. Although the applicants were able to find Mr Yakın’s address and gave it to the authorities, no steps were taken to question him. During the eventual trial of the two confessors for homicide (see paragraphs 36-45 below), neither of them ever appeared before the Şırnak Assize Court (hereafter “the trial court”) to give evidence. 22. The Government’s submissions were based on the documents drawn up by the national authorities in the course of the investigation, the trial and the compensation proceedings, which documents are summarised below. 23. On 8 March 1994 the bodies of the four men were recovered by gendarmes and identified by villagers who were present in the area at the time. The gendarmes found five Kalashnikov-type spent bullet cases around the bodies. It was concluded in an on-site report prepared by the gendarmes that the four men had probably been killed by members of the PKK in order to deter other members of their families from becoming village guards. It was established that the four men had been killed where they were found. 24. The same day the bodies were examined in situ by a doctor who concluded that the four men had been killed by gunshot wounds. The doctor, who observed a large number of bullet entry and exit holes on the bodies, deemed it unnecessary to conduct a full autopsy; the cause of death was established and that was sufficient. A bullet which had entered and exited the body of Abdulaziz Gasyak was secured for further examination. The Cizre prosecutor was also present at the time of the doctor’s examination. 25. Also that day the Cizre prosecutor decided that his office lacked jurisdiction to investigate the killings “perpetrated by members of the illegal organisation” and sent the file to the Diyarbakır State Security Court prosecutor’s office (“the Diyarbakır prosecutor”). 26. The Diyarbakır prosecutor instructed the gendarmerie on 18 April 1994 to search for the perpetrators of the killings. 27. According to a ballistic examination, the five spent bullet cases had been fired by two separate weapons. 28. On a number of occasions between 1 September 1995 and 22 March 2002, the gendarmerie reported to the Diyarbakır prosecutor that they had been “unable to find the perpetrators of the killings which, in all likelihood, had been carried out by members of the PKK”. On 16 February 2002 a number of soldiers had visited the place where the bodies had been found in 1994, but they had been unable to establish the identities of the perpetrators. 29. On 11 July 2002 a lawyer representing the applicants wrote to the Diyarbakır prosecutor and asked him to investigate the killings. The lawyer pointed to the fact that none of the relatives of the deceased men or anyone living in the area where the bodies had been found had been questioned by the authorities. He also informed the prosecutor that Mr A.M. and Mrs E.T had witnessed the incidents. 30. The applicants, who were questioned by the Diyarbakır prosecutor on 15 July 2002, stated that after the killing of their relatives they had been warned by the security forces not to make any complaints. They also told the prosecutor that no investigating authority had ever questioned them. 31. The same day Mr A.M. and Mrs E.T were also questioned by the Diyarbakır prosecutor. They gave the prosecutor their eyewitness accounts of the events – which are summarised above (see paragraphs 10-11 and 14-15 above) – leading up to the killing of the four men. 32. Also that day the Diyarbakır prosecutor decided that he lacked jurisdiction to investigate the killings because, although it had been stated by his opposite number in Cizre in 1994 that the killings had been carried out by members of the PKK (see paragraph 25 above), it was now being alleged by the applicants that their relatives had been killed on account of their refusals to become village guards. The two confessors and “their accomplices whose identities could not be determined” were referred to in this document as the “accused”. The Diyarbakır prosecutor then forwarded the file to the office of the Cizre prosecutor. 33. The applicants and the two eyewitnesses, Mr A.M. and Mrs E.T, were questioned by the Cizre prosecutor on various dates in December 2002 and January and May 2003. They repeated their respective complaints and eyewitness accounts of the events. Mr A.M. also told the prosecutor that he would be willing to identify the two confessors in an identity parade. 34. On 17 March 2003 Abdulhakim Güven, one of the two confessors allegedly involved in the killings, was questioned by a police officer. He denied the accusations against him. 35. The other confessor, Adem Yakın, was questioned by the Cizre prosecutor on 15 July 2003. He also denied the accusations and stated that he had been performing his military service at the material time. 36. On 5 August 2003 the Şırnak prosecutor filed an indictment with the Şırnak Assize Court (“the Şırnak court”), charging the two confessors with the offence of multiple homicide. 37. In the course of its first hearing on 7 August 2003 the Şırnak court sent letters rogatory to the Assize Courts in Diyarbakır and Batman where the two defendants were living, and asked those courts to question the defendants. 38. On 12 September 2003 the Diyarbakır Assize Court questioned Abdulhakim Güven who disputed the allegations and stated that at the time of the killings he had been in prison. 39. During a hearing held on 9 October 2003, Mr A.M. and Mrs E.T repeated their eyewitness accounts before the Şırnak court. The same day the Şırnak court issued an arrest warrant for Adem Yakın. It also ordered that Abdulhakim Güven be photographed with a view to showing his photographs to the eyewitnesses. 40. On 14 November 2003 Adem Yakın was arrested and questioned by the Batman Assize Court pursuant to the letters rogatory mentioned above. He denied the accusations and maintained that he had been performing his military service at the time of the killings. He was released the same day. 41. On 30 March 2004 the lawyer for the applicants sent a letter to the Şırnak court, requesting permission for his clients to join the proceedings as interveners. This request was accepted on 12 October 2004. 42. During the subsequent stages of the proceedings it transpired that on 28 February 1994 – that is, some six days before the killings – Abdulhakim Güven had been released from prison for a period of ten days with the permission of the Diyarbakır State Security Court so that he could “help the security forces with their anti-terrorism operations”. In fact, on various dates in 1994 he had been released from prison to help the security forces. 43. The Şırnak court had to postpone a number of its hearings to wait for the photographs of Abdulhakim Güven. 44. After having sent a number of reminders, on 27 January 2005 the Şırnak court was finally provided with the photographs of Abdulhakim Güven taken on 17 January 2005. During a hearing held on 29 March 2005, the eyewitness Mr A.M. was shown the photographs but was unable to identify Abdulhakim Güven. Mr A.M. told the Şırnak court that he had last seen Mr Güven more than ten years ago and that at that time Mr Güven had had a long beard; the person in the photograph did not have a beard. 45. At the same hearing the prosecutor asked the Şırnak court to acquit the defendants. The Şırnak court accepted that request and acquitted the defendants for lack of sufficient evidence. It considered, in particular, that although Mr A.M. had been in a minibus with a number of other persons, he had been the only person to witness the alleged abduction of the four men. In any event, the defendants had been working as informers and helping the security forces. Such informers were not well regarded by the residents of the region and, as such, the testimony of Mr A.M. implicating the confessors in the killings was disregarded. According to the Şırnak court, the fact that Abdulhakim Güven was not in prison at the time of the killings did not prove that he had taken part in them. He had been helping the security forces with their operations and, as such, it was not logical that he would be involved in a killing. The Şırnak court also decided to inform the relevant prosecutor to continue with the search for the perpetrators. 46. The applicants appealed. In their appeal petition they referred to the obligations under Articles 2 and 13 of the Convention to carry out effective investigations into incidents of killings, and alleged that the investigation into the killing of their relatives had been flawed. They maintained that the eyewitnesses had been consistent throughout the criminal investigation. The confessor Abdulhakim had lied to the investigating authorities when he said that he had been in prison on 6 March 1994 (paragraph 38 above). The Şırnak court had contented itself with showing the photographs of one of the defendants to an eyewitness and had not summoned the defendants to the trial. Furthermore, the investigating authorities had failed to follow up leads concerning the involvement of the gendarmerie and the security services and had only prosecuted the two confessors. They argued that the trial court had also failed to ensure an identity parade so that the eyewitnesses could have seen and identified the two confessors. 47. On 14 November 2006 the Court of Cassation rejected the appeal and upheld the two defendants’ acquittals. 48. In their letter of 20 August 2009 the applicants informed the Court that the same two confessors (that is, Mr Abdulhakim Güven and Mr Adem Yakın), a high-ranking army official and three intelligence officers working for the gendarmerie had been indicted in July 2009 and put on trial for the killing of their four relatives as well as the killing of a number of other persons at around the same time. 49. On 25 July 2005 the second to fourth applicants, together with a number of other heirs of their deceased relatives, submitted petitions to the Şırnak Governor’s office and claimed compensation under the provisions of the Law on Compensation of the Losses resulting from Terrorism and the Measures Taken against Terrorism (Law no. 5233 of 27 July 2004). In their petitions the three applicants repeated their allegations of State involvement in the killings. 50. On 10 July 2006 the Şırnak Governor’s office partially accepted the compensation claims made by the three applicants in respect of the killings of their relatives “by members of the PKK”. The second applicant Leyla Gasyak was awarded approximately 2,500 euros (EUR) in respect of the killing of her husband Süleyman Gasyak. The third applicant İsa Akman was awarded approximately EUR 5,000 in respect of the killing of his son Yahya Akman. The fourth applicant Hanım Candoruk was awarded approximately EUR 2,500 in respect of the killing of her husband Ömer Candoruk. Other heirs of these three deceased men were also awarded various sums of money. | 1 |
dev | 001-87608 | ENG | CYP | CHAMBER | 2,008 | CASE OF DOUGLAS v. CYPRUS | 4 | Violation of Article 6 - Right to a fair trial | Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens | 4. The applicant was born in 1949 and lives in Nicosia. The applicant was married on 2 June 1974 in Nicosia. His marriage was dissolved on 16 March 1998. 5. On 6 August 1999 his former wife lodged an application (no.143/99) with the Nicosia Family Court for adjudication of certain property disputes between her and the applicant. On the same date the court issued an interim injunction prohibiting the applicant from selling, transferring or otherwise disposing of certain of his properties consisting of an apartment, a plot of land and two bank accounts. On 7 January 2000 the applicant submitted his defence and counter-claims. He claimed that he and his former wife had entered into an agreement in 1997 for the settlement of any potential property dispute. On 3 April 2000 his former wife filed her response to the applicant’s defence, and her defence in respect of his counter-claim. 6. The case was adjourned on at least two occasions at the request of the applicant. The hearing of the interim order application began on 8 March 2002. On 19 November 2002 it was decided that the prohibitory injunction would remain in force pending the final determination of the proceedings. An amendment was made in respect of the applicant’s plot of land, which would only be bound in respect of two thirds of the undivided share of the property. 7. On 28 November 2002, the applicant lodged an appeal against the injunction. He maintained that the court had erred in law in issuing it solely on the basis of the affidavit of his former wife and without further evidence substantiating her allegations. In another ground of appeal he complained about the delay that had occurred in the proceedings, which had severely restricted his professional activities. 8. On 12 March 2004 the Supreme Court dismissed the appeal and upheld the injunction as the applicant’s former wife had entered into sufficient detail in her affidavit to justify non inclusion of further relevant documents. The court nevertheless expressed its concern about the delay in the proceedings. 9. The examination of the main application (no.143/99) by the Nicosia Family Court began on 26 September 2003. Of the 29 sittings held between 23 October 2003 and 18 November 2004 at least one was adjourned at the applicant’s request. 10. On 11 March 2005, the Nicosia Family Court ordered the applicant to pay 41,000 Cypriot pounds (CYP) plus interest to his former wife. The court dismissed the applicant’s submission that an agreement had been concluded between himself and his former wife. The counter-claim lodged by the applicant was dismissed in its entirety. Moreover, the court considered that the applicant’s evidence had been unreliable and given in bad faith. It noted that he had been unable to control himself during the proceedings and had become disrespectful towards the court and his former wife’s counsel. 11. On 11 April 2005, the applicant lodged an appeal with the Supreme Court. 12. On 13 April 2005, the applicant’s former wife lodged with the Nicosia Family Court an application by summons requesting a ‘garnishee order’ (third party debt order). The application was set for hearing on 22 April 2005. On 28 April 2005 the applicant filed an objection and maintained that the application had been filed in bad faith. 13. On 28 April 2005 the applicant applied for suspension of the execution of the court’s decision dated 11 March 2005, until the examination of his appeal. This was set for hearing on 19 May 2005. On 16 May 2005 the applicant’s wife objected to his application as the applicant had not complied with the aforementioned court order. 14. On 17 June 2005 the Nicosia Family Court, following a hearing, dismissed the application for suspension of the court’s decision dated 11 March 2005. The court declined to grant the requested order in light of the applicant’s unreliability and the evident danger that his former wife would remain without a remedy in the event that the order was granted. The court rejected the applicant’s allegations that the application was made in bad faith and found his claim that he would face considerable financial difficulties in the event of non suspension unsubstantiated. The application was accordingly dismissed with legal costs awarded to the applicant’s former wife. 15. On the same date the court granted the garnishee order. Accordingly the applicant’s bank was ordered to pay his former wife the amount of CYP 41,000 with 8% interest from 6 August 1999 until payment and expenses. The court ordered the applicant’s former wife to guarantee the return to the applicant of the whole amount payable upon the execution of the court’s decision dated 11 March 2005 in the event that his appeal was successful. The guarantee would be renewable until the completion of the appeal proceedings. On 27 June 2005, the applicant lodged an appeal with the Supreme Court against the decision of the Nicosia Family Court dated 17 June 2005. 16. On 23 March 2007 the Supreme Court granted the applicant’s appeal against the family court’s judgment of 11 March 2005 and against its order of 17 June 2005. It noted that the first-instance court had found the applicant an absolutely unreliable witness and his evidence was, as such, dismissed in its entirety. It further noted that the first-instance court had based its conclusion as to the applicant’s reliability as a witness on various factors including his behaviour in and outside the court room. It was held that the first-instance court ought not to have taken those factors into account in the assessment of the applicant’s evidence and therefore the case was remitted for a retrial, but only in respect of the former wife’s claim over the applicant’s plot of land. 17. On 29 February 2008 judgment was issued by the family court in favour of the applicant’s former wife. The court noted that the proceedings had been delayed by the applicant, who failed to appear before the court on two occasions. It was found that no agreement had been concluded between the applicant and his wife as to any potential property dispute. Given his former wife’s contribution to his enrichment during the period of their wedlock it was held that she was entitled to a third of the value of his plot of land. 18. On 14 March 2008 the applicant lodged an appeal against the decision of the family court before the Supreme Court. These proceedings are currently pending. | 1 |
dev | 001-106178 | ENG | ESP | GRANDCHAMBER | 2,011 | CASE OF PALOMO SÁNCHEZ AND OTHERS v. SPAIN | 1 | No violation of Art. 10 | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Elisabeth Steiner;Françoise Tulkens;Ineta Ziemele;Isabelle Berro-Lefèvre;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Ledi Bianku;Luis López Guerra;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Peer Lorenzen | 10. The applicants live in Barcelona. 11. They were employed as delivery men by the company P., against which they brought several sets of proceedings in employment tribunals. The applicants sought to secure recognition by the employer of their special “salaried worker” status, as confirmed by judgments of 2 May and 30 December 1995 of the High Court of Justice of Catalonia, in order to be covered by the corresponding social-security regime. Representatives of a committee of non-salaried delivery staff in the company P. had testified against them in those proceedings. 12. On 21 May 2001 the applicants set up the trade union Nueva Alternativa Asamblearia (NAA) to defend their interests and those of the other delivery staff who were under pressure from the company P. to renounce their claim to salaried status. The applicants joined the union’s executive committee. On 3 August 2001 the applicants informed the company P. of the setting-up of a branch of the trade union inside the company, of its composition, and of their appointment as members of the executive committee of that workplace branch. Mr Juan Manuel Palomo Sánchez was the trade-union representative, Mr Francisco Antonio Fernández Olmo the treasurer, Mr Agustín Alvarez Lecegui the press and communications officer and Mr Francisco José María Blanco Balbas the organisation officer. No changes concerning the appointment of the union members or their duties have taken place since the union was formed. 13. The trade union NAA published a monthly newsletter. The March 2002 [sic] issue reported on the judgment of 2 April 2002 of Barcelona Employment Tribunal no. 13, which had partly upheld the applicants’ claims, ordering the company P. to pay them certain sums in respect of salaries owed to them. On the cover of the newsletter, a cartoon with speech bubbles showed a caricature of the human resources manager, G., sitting behind a desk under which a person on all fours could be seen from behind, together with, to one side, A. and B., also employees of the company P. and representatives of a committee of its non-salaried delivery workers, who were watching the scene while waiting to take their turn to satisfy the manager. Inside the newsletter were two articles which vehemently denounced the fact that those two individuals had testified in favour of the company P. in proceedings that the applicants had brought against their employer. The newsletter was distributed among the workers and displayed on the noticeboard of the trade union NAA which was located on the company’s premises. 14. On 3 June 2002 the company notified the applicants of their dismissal on grounds of serious misconduct, namely for impugning the reputations of G., A. and B., under Article 54 §§ 1 and 2 (c) of the Labour Regulations, which provide for the termination of a contract of employment where an employee is guilty of serious and negligent failure to perform his or her contractual obligations. 15. The applicants challenged that decision before Barcelona Employment Tribunal no. 17, which, in a judgment of 8 November 2002, dismissed their claims and found that the dismissals were justified, in accordance with Article 54 §§ 1 and 2 (c) of the Labour Regulations. The tribunal took the view that the company’s decision to dismiss the applicants had been based on a genuine and serious cause, namely the publication and display on a noticeboard inside the company of a cartoon with speech bubbles and two articles which were offensive and impugned the dignity of the persons concerned. The first article, entitled “Whose witnesses? Theirs, of course”, contained caricatures of A. and B., showing them gagged by a handkerchief tied behind their heads, and the text underneath read as follows: “We knew who they were and how they behaved, but we didn’t know how far they were prepared to go in order to hold onto their seats and cushy jobs without doing anything. As employees of P. we earn our living by selling goods in the street. A. and B. earn theirs by selling the workers in the courts. Not content with doing this simply by signing agreements that go against the collective interest, they’ve now gone a step further – they rob and steal with total impunity, in broad daylight, with the confidence of men who feel totally untouchable. They play at being gods. ... but they, the chairman and secretary of the staff representatives, agreed, just like guard dogs, to roll over and frolic in return for a pat on the back by their master. ...” The tribunal noted that the text was a response to what had happened during proceedings brought by the applicants before Barcelona Employment Tribunal no. 13, in which A. and B. had appeared as witnesses against the applicants’ interests and in favour of their employer. The article entitled “When you’ve rented out your arse you can’t shit when you please” read as follows: “If you belong to a works council and you have to sign agreements with your employers that will never be honoured, just to keep you quiet, and agree to changes that only benefit their cronies, and to pay cuts and other sell-outs, then you’ve swapped your dignity for an armchair, [and] you have the dubious merit of achieving the same level of infamy as politicians and policemen. You see, you shut up and you shrewdly agree to all sorts of shenanigans. When you’ve rented out your arse, you can’t shit when you please. If you’re a despicable ‘professional trade unionist’ and you’ve thus sold your soul to the union, you’ll never have a surge of sincerity, because your status would be threatened. You say what the union tells you to say, and as the unions are ‘condoms’ on freedom, your lips are sealed just like your anal sphincter, because you’ve rented out your arse and you can’t shit when you please. You can see the injustices meted out on your colleagues, the totally irrational way of dealing with their problems and the constant persecution to which they are subjected, but say nothing, for fear of drawing attention to yourself. Once upon a time, in the old days, you were a rebel who criticised the system – you would curse conventionalism and rant against the rules and regulations. You were caustic, dynamic, cutting, impulsive, jovial. But a couple of favours received have gradually cooled your fiery temperament, stoked your self-esteem and put the dampers on your feelings. From time to time you have a pang of nostalgia and you would like to fart, but your sphincter is sealed, because you’ve rented out your arse and can’t shit when you please. You’re fed up with your work, pissed off, anxious, stressed and in despair, because of the longer working hours and the responsibilities, products, promotions and pressures. You could work anywhere, do anything without having to get up at the time others go to bed. You could break everything up, tear it to pieces, crush and demolish it all ... but your hands are tied by credits, IOUs and debts. You are crushed by your new SUV, your children’s after-school activities, and the twenty-five year mortgage on your semi-detached house. And you let yourself be humiliated, you swallow your pride, you shut up and you accept, because when you’ve rented out your arse, you can’t shit when you please.” The newsletter was distributed to staff and displayed on the trade union’s noticeboard on the company’s premises. The employment tribunal observed at the outset that the cause of the dismissal was the content of the newsletter and not the applicants’ trade-union membership. It referred in its judgment to the exercise of the right to freedom of expression in the context of labour relations and to the fact that it was not unlimited. It found that the limits to this right had to be interpreted in accordance with the principle of good faith, which in labour relations had to involve respect for the interests of the employer and the minimum requirements of coexistence in a professional environment. The judgment reiterated the Constitutional Court’s case-law to the effect that the right to respect for freedom of expression was subject to limits derived from labour relations, since the contract of employment created a series of rights and reciprocal obligations that circumscribed the exercise of the right to respect for freedom of expression. For that reason, certain manifestations of this right that might be legitimate in other contexts were not legitimate in the context of labour relations, even though the requirement to act in good faith did not always imply a duty of loyalty to the point of subjecting the worker to the employer’s interests. As to the newsletter’s content, the tribunal took the view that the cartoon and speech bubbles on the cover, together with the articles inside, were offensive and exceeded the limits of freedom of expression and information, impugning the honour and dignity of the human resources manager and of delivery men A. and B., and damaging the image of the company P. Lastly, it noted that the dismissal could not be declared null and void, since it was based on serious misconduct as provided for by law, and found that the applicants’ fundamental rights had not been breached. 16. The applicants appealed. In a judgment of 7 May 2003, the High Court of Justice of Catalonia upheld the judgment under appeal in so far as it concerned the applicants. The court referred, among other things, to the limits imposed by the principle of good faith between parties to a contract of employment and to the necessary balance that judicial decisions had to strike between a worker’s obligations under the contract and his freedom of expression. The balancing exercise had to enable it to be determined whether or not the reaction of the company that dismissed the employee was legitimate. For the court, the publication of the offending drawing and articles had clearly been harmful to the dignity of the persons concerned and had overstepped the limits of admissible criticism, as the exercise of freedom of expression did not justify the use of insulting, offensive or vexatious expressions that went beyond the legitimate exercise of the right to criticise and clearly impugned the respectability of the persons concerned. The company P. had, moreover, duly shown that the applicants’ dismissal was not a measure of reprisal or punishment, but was based on a genuine, serious and sufficient cause for deciding to terminate their contracts of employment. 17. The applicants lodged an appeal on points of law, seeking harmonisation of the relevant case-law. In a decision of 11 March 2004, the Supreme Court dismissed their appeal on the ground that the decision produced for purposes of comparison, namely a judgment of the High Court of Justice of Madrid of 31 July 1992, was not pertinent. 18. Relying on Article 24 (right to a fair hearing) of the Spanish Constitution, and on Articles 20 and 28 taken together (freedom of expression and association), the applicants lodged an amparo appeal with the Constitutional Court. In a decision of 11 January 2006, served on 13 January 2006, the Constitutional Court found the appeal inadmissible for lack of constitutional content. The decision reads as follows: “... Firstly ... there is not enough evidence to show that the [appellants’] dismissal was an act of reprisal on the part of the respondent company because of the judicial proceedings they had brought against it to assert their rights ... Secondly, as to the [alleged] interference with trade-union freedom guaranteed by Article 28 of the Constitution (this complaint incorporating the appellants’ complaint under Article 14 of the Constitution in so far as they alleged discrimination on trade-union grounds), this is inadmissible as [the appellants] have not provided sufficient evidence to show that the company’s action was intended to restrict, hamper or prevent the exercise of their right to freedom of association, on account of their union membership or activities in a trade union. In line with what this court has repeatedly said, such evidence does not consist of a mere allegation of a constitutional violation but must be sufficient for it to be inferred that the violation could have been constituted ... which is not the case here, since the circumstances alleged do not give rise to any suspicion as to the potential violation in question. In their allegations, the appellants have simply expressed their disagreement with the decisions rendered by the courts below, which found in decisions giving reasons and not being manifestly unreasonable that they had committed the acts of which the company had accused them in their letters of dismissal. Thirdly, there has not been a breach of Article 28 § 1 of the Constitution taken together with Article 20 § 1 (a), in the form of an infringement of the appellants’ right to freedom of expression in the context of their union activity, since this fundamental right does not encompass any right to insult others. As the Court held recently in judgment no. 39/2005 of 28 February (legal ground 4), reiterating its case-law, although the Constitution does not prohibit the use of hurtful, embarrassing or vituperative expressions in every circumstance, the constitutional or lack of veracity, are offensive or defamatory and are not pertinent for the purpose of conveying the opinions or information in question. The application of that jurisprudence to the present case leads the Court to the conclusion that the appellants’ right to freedom of expression has not been infringed, since they used that right in an excessive manner by means of value judgments expressed through cartoons and comments that were offensive and humiliating for the persons concerned and impugned their honour and reputation. [Those cartoons and comments] were not necessary for others to form an opinion about the facts of which the appellants wished to complain, and were therefore gratuitous and not necessary for the exercise of freedom of expression in a trade-union context.” 19. The relevant provisions of the Spanish Constitution read as follows: “1. The following rights shall be recognised and protected: (a) the right freely to express and disseminate thoughts, ideas and opinions orally, in writing or by any other means of reproduction; ... (d) the right to receive and communicate true information by any means of dissemination. ... 2. The exercise of these rights may not be restricted by any prior censorship. ... 4. These freedoms shall be limited by respect for the rights secured in this Part, by the provisions of the implementing Acts and in particular by the right to honour and to a private life and the right to control use of one’s likeness and to the protection of youth and children.” “1. Everyone shall have the right to associate freely ... Freedom of association shall include the right to form trade unions or to join a trade union of one’s choosing, and the right for trade unions to establish confederations and to set up or join international trade-union organisations. No one shall be obliged to join a trade union. ...” “1. The employer may decide to terminate a contract of employment by dismissing the employee for serious and negligent failure to perform his or her obligations. 2. Non-compliance with contractual obligations shall include: ... (c) Verbal or physical attacks on the employer or persons working in the company, or members of their families living with them.” “... 7. Justified dismissal shall entail the termination of the contract without any right of compensation ...” 21. On 23 June 1971 the General Conference of the International Labour Organization (ILO) adopted Recommendation No. 143 concerning workers’ representatives, point 15 of which reads as follows: “1. Workers’ representatives acting on behalf of a trade union should be authorised to post trade-union notices on the premises of the undertaking in a place or places agreed on with the management and to which the workers have easy access. 2. The management should permit workers’ representatives acting on behalf of a trade union to distribute news sheets, pamphlets, publications and other documents of the union among the workers of the undertaking. 3. The union notices and documents referred to in this paragraph should relate to normal trade-union activities and their posting and distribution should not prejudice the orderly operation and tidiness of the undertaking.” 22. At its fifty-fourth session in June 1970, the International Labour Conference adopted a Resolution concerning trade-union rights and their relation to civil liberties. The Conference explicitly listed the fundamental rights essential for the exercise of freedom of association, in particular: (a) the right to freedom and security of person and freedom from arbitrary arrest and detention; (b) freedom of opinion and expression and in particular freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers; (c) freedom of assembly; (d) the right to a fair trial by an independent and impartial tribunal; and (e) the right to protection of the property of trade unions. 23. In 1994 the ILO published a report entitled “Freedom of Association and Collective Bargaining: Trade-Union Rights and Civil Liberties”. The relevant passages of that report read as follows: “Part I. Freedom of association and protection of the right to organise Chapter II. Trade-union rights and civil liberties Introduction ... 24. The Declaration of Philadelphia ... officially acknowledged the relationship between civil liberties and trade-union rights by proclaiming in Article I(b) that freedom of expression and of association are essential to sustained progress and referring in Article II(a) to the fundamental rights which are an inseparable part of human dignity. Since then, this relationship has been repeatedly affirmed and highlighted, both by the ILO’s supervisory bodies and in the Conventions, Recommendations and Resolutions adopted by the International Labour Conference. ... 27. The information available, in particular on the nature of the complaints submitted to the Committee on Freedom of Association, shows that the main difficulties encountered by trade-union organisations and their leaders and members relate to basic rights, in particular to the right to security of the person, freedom of assembly, freedom of opinion and expression, as well as the right to protection of trade-union property and premises. ... ... Freedom of opinion and expression 38. Another essential aspect of trade-union rights is the right to express opinions through the press or otherwise. The full exercise of trade-union rights calls for a free flow of information, opinions and ideas, and workers, employers and their organisations should enjoy freedom of opinion and expression at their meetings, in their publications, and in the course of their other activities. In cases in which the issue of a trade-union publication is subject to the granting of a licence, mandatory licensing should not be subject to the mere discretion of licensing authorities, nor should it be used as a means of imposing prior restraint on the subject matter of publications; in addition any application for such a licence should be dealt with promptly. ... Measures of administrative control – for example, the withdrawal of a licence granted to a trade-union newspaper, the control of printing plants and equipment, or the control of paper supply – should be subject to prompt and independent judicial review. 39. An important aspect of freedom of expression is the freedom of speech of delegates of workers’ and employers’ organisations meetings, conferences and reunions, and in particular to the International Labour Conference. ... ... State of emergency ... 43. The Committee considers that the guarantees set out in the international labour Conventions, in particular those relating to freedom of association, can only be effective if the civil and political rights enshrined in the Universal Declaration of Human Rights and other international instruments, notably the International Covenant on Civil and Political Rights, are genuinely recognised and protected. These intangible and universal principles, the importance of which the Committee wishes to emphasise particularly on the occasion of the 75th anniversary of the creation of the ILO and the 50th anniversary of the Declaration of Philadelphia, should constitute the common ideal to which all peoples and all nations aspire.” 24. The fifth edition (revised) of the Digest of Decisions and Principles of the Committee on Freedom of Association of the Governing Body of the International Labour Office, published in 2006, contains a summary of the principles formulated by that Committee in the context of individual or collective complaints concerning alleged violations of trade-union rights. The general principles concerning freedom of opinion and expression include the following: “154. The full exercise of trade-union rights calls for a free flow of information, opinions and ideas, and to this end workers, employers and their organisations should enjoy freedom of opinion and expression at their meetings, in their publications and in the course of other trade-union activities. Nevertheless, in expressing their opinions, trade-union organisations should respect the limits of propriety and refrain from the use of insulting language. (See the 1996 Digest, para. 152; 304th Report, Case No. 1850, para. 210; 306th Report, Case No. 1885, para. 140; 309th Report, Case No. 1945, para. 67; 324th Report, Case No. 2014, para. 925; and 336th Report, Case No. 2340, para. 652.) 155. The right to express opinions through the press or otherwise is an essential aspect of trade-union rights. (See the 1996 Digest, para. 153; 299th Report, Case No. 1640/1646, para. 150; 302nd Report, Case No. 1817, para. 324; 324th Report, Case No. 2065, para. 131; 327th Report, Case No. 2147, para. 865; 328th Report, Case No. 1961, para. 42; 332nd Report, Case No. 2090, para. 354; and 333rd Report, Case No. 2272, para. 539.) 156. The right to express opinions without previous authorisation through the press is one of the essential elements of the rights of occupational organisations. (See the 1996 Digest, para. 154.) 157. The freedom of expression which should be enjoyed by trade unions and their leaders should also be guaranteed when they wish to criticise the government’s economic and social policy. (See the 1996 Digest, para. 155.) ... 163. The prohibition of the placing of posters stating the point of view of a central trade-union organisation is an unacceptable restriction on trade-union activities. (See the 1996 Digest, para. 467.) ... 166. The publication and distribution of news and information of general or special interest to trade unions and their members constitutes a legitimate trade-union activity and the application of measures designed to control publication and means of information may involve serious interference by administrative authorities with this activity. In such cases, the exercise of administrative authority should be subject to judicial review at the earliest possible moment. (See the 1996 Digest, para. 161; 320th Report, Case No. 2031, para. 172; and 327th Report, Case No. 1787, para. 341.) ... 168. While the imposition of general censorship is primarily a matter that relates to civil liberties rather than to trade-union rights, the censorship of the press during an industrial dispute may have a direct effect on the conduct of the dispute and may prejudice the parties by not allowing the true facts surrounding the dispute to become known. (See the 1996 Digest, para. 163.) 169. When issuing their publications, trade-union organisations should have regard, in the interests of the development of the trade-union movement, to the principles enunciated by the International Labour Conference at its thirty-fifth session (1952) for the protection of the freedom and independence of the trade-union movement and the safeguarding of its fundamental task, which is to ensure the social and economic well-being of all workers. (See the 1996 Digest, para. 165.) 170. In a case in which a trade-union newspaper, in its allusions and accusations against the government, seemed to have exceeded the admissible limits of controversy, the Committee pointed out that trade-union publications should refrain from extravagance of language. The primary role of publications of this type should be to deal with matters essentially relating to the defence and furtherance of the interests of the unions’ members in particular and with labour questions in general. The Committee, nevertheless, recognised that it is difficult to draw a clear distinction between what is political and what is strictly trade union in character. It pointed out that these two notions overlap, and it is inevitable and sometimes normal for trade-union publications to take a stand on questions having political aspects, as well as on strictly economic or social questions. (See the 1996 Digest, para. 166.)” 25. The American Convention on Human Rights has a special Additional Protocol concerning economic, social and cultural rights, the “Protocol of San Salvador”. Adopted and opened for signature on 17 November 1988, it entered into force on 16 November 1999. Article 8 of that Protocol, entitled “Trade-union rights” reads as follows: “1. The States Parties shall ensure: (a) The right of workers to organise trade unions and to join the union of their choice for the purpose of protecting and promoting their interests. As an extension of that right, the States Parties shall permit trade unions to establish national federations or confederations, or to affiliate with those that already exist, as well as to form international trade-union organisations and to affiliate with that of their choice. The States Parties shall also permit trade unions, federations and confederations to function freely; (b) The right to strike. 2. The exercise of the rights set forth above may be subject only to restrictions established by law, provided that such restrictions are characteristic of a democratic society and necessary for safeguarding public order or for protecting public health or morals or the rights and freedoms of others. Members of the armed forces and the police and of other essential public services shall be subject to limitations and restrictions established by law. 3. No one may be compelled to belong to a trade union.” 26. In its Advisory Opinion OC-5/85, the Inter-American Court of Human Rights emphasised the fundamental nature of freedom of expression for the existence of a democratic society, stressing among other things that freedom of expression was a sine qua non for the development of trade unions. It found as follows (paragraph 70 of the Opinion): “Freedom of expression is a cornerstone upon which the very existence of a democratic society rests. It is indispensable for the formation of public opinion. It is also a conditio sine qua non for the development of political parties, trade unions, scientific and cultural societies and, in general, those who wish to influence the public. It represents, in short, the means that enable the community, when exercising its options, to be sufficiently informed. Consequently, it can be said that a society that is not well informed is not a society that is truly free.” 27. Comparative-law research has shown that the disciplinary powers of employers in the member States of the Council of Europe are very diverse. There is a convergence of legal systems among the thirty-five countries examined: they all provide for and organise employees’ freedom of expression and trade-union freedom, usually by means of norms of constitutional value, or, where that is not the case, by legislative regulations. Employees serving as representatives benefit from special protection to help them discharge their duties. The regulations in all countries, in order to reconcile the exercise of this right with the essential rights and freedoms of others, fix rules providing for penalties in cases of abuse of the right to freedom of expression. The powers vested in employers allow, if necessary, for the exercise of disciplinary action against an employee or staff member whose conduct can be characterised as improper exercise of his freedom of expression. The case-law in such matters is consistent and shows that there is a systematic examination of proportionality between the dismissal and the conduct on which it is based. 28. The domestic-law instruments provide for the punishment of any conduct by an employee that is capable of infringing the rights and freedoms of others. The relevant rules may, firstly, be laid down by a Criminal Code, or by provisions concerning the possibility of bringing an action to establish liability. In most cases, criminal notions such as defamation, damage to honour or reputation, or insults will enable the person claiming to be a victim of such infringement to bring proceedings to establish the liability of the person who made the comments at issue. Rules in Labour Codes or norms applicable to public servants will also govern the exercise of freedom of expression of staff members, and if necessary provide for the punishment of any abuse. Similar limitations may be imposed on public officials, whether or not they have “civil servant” status. 29. Disciplinary authority is one of the essential prerogatives of the employer, whether private or public. In this connection, employers have a broad discretion to impose the sanction that they consider the best adapted to the accusations against the employee; the scale of possible sanctions encompasses the power to dismiss a person who has seriously compromised the interests of the company or the public service. In parallel, this power of dismissal is accompanied by a prohibition on dismissing employees on grounds relating to trade-union activity. A measure of dismissal may be based on misconduct or on a legitimate ground. In the first case, it relates to a given – identified – form of conduct. In the second, the conduct is considered in general terms. 30. The proportionality of a measure of dismissal in relation to the conduct of the employee concerned underlies all the legislation analysed. 31. The applicable law in the States examined shows that any abuse of the freedom of expression afforded to employees or public servants is always regarded as a reprehensible fact capable of justifying disciplinary measures that could go as far as dismissal. For that purpose, factual elements of an objective nature are taken into account, such as: (i) the seriousness of the misconduct; and (ii) the characterisation of the comments, the extent of their publication, and also certain subjective elements. The latter include the personal situation of the employee, any abuse of freedom of expression and the question whether the conduct falls outside “normal” trade-union activity. 32. In all the countries studied, the general rules are clear and allow the employee’s right to freedom of expression to be balanced against the rights and prerogatives of the employer. Their implementation is more problematic, since a restriction on a fundamental right can only be accepted if, having regard to the measure decided, it is proportionate to the aim pursued. Only through a case-by-case approach is it possible to grasp the substance of the jurisprudential solution adopted in each type of situation. | 0 |
dev | 001-94566 | ENG | AZE | ADMISSIBILITY | 2,009 | YAGUBOV v. AZERBAIJAN | 4 | Inadmissible | Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | The applicant, Mr Mubariz Yagubov, is an Azerbaijani national who lives in Tovuz, Azerbaijan. He is represented before the Court by Mr B. Hajiyev, a lawyer practising in Baku. The Azerbaijani Government (“the Government”) are represented by their Agent, Mr Ç. Asgarov. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was involved in a property dispute with a private person (S.) over a retail shop located in the Govlar settlement of the Tovuz Region. At the time of the dispute, the shop was in S.’s possession. The applicant claimed to have bought the shop from its previous owners, who had privatised it in 2003, while S. argued that the privatisation process had been unlawful and that he had a lawful claim to the shop. The applicant lodged a lawsuit seeking S.’s eviction from the shop. By a judgment of 23 November 2005, the Shamkir District Court found that the applicant had purchased the shop on 6 October 2003 and was its lawful owner pursuant to the ownership certificate issued by the Ministry of Economic Development on 16 January 2004. The court further found that S. had unlawfully occupied the shop without the owner’s permission. Accordingly, the court ordered S. to vacate the shop. S. appealed against that judgment. On 7 April 2006 the Court of Appeal delivered a judgment dismissing S.’s appeal. The Shamkir District Court’s judgment of 23 November 2005 thus became final immediately. No further appeals were filed. According to information submitted by the Government, on 2 May 2006 the Tovuz Department of Enforcement Officers enforced the judgment of 23 November 2005 as upheld by the Court of Appeal and S. was evicted from the shop by the police. By a decision of 4 May 2006, the Tovuz District Court terminated the enforcement proceedings as the judgment of 23 November 2005 had been executed. It appears from the case file that the same shop was subsequently occupied by three other persons. On 26 September 2007 the Tovuz District Court delivered a judgment ordering their eviction from the shop. That judgment was enforced on 15 February 2008. According to the applicant, however, the shop was subsequently occupied again, by other persons related to S. | 0 |
dev | 001-103234 | ENG | AUT | CHAMBER | 2,011 | CASE OF SPORER v. AUSTRIA | 3 | No violation of Art. 6-1;Violation of Art. 14+8;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient | Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev | 6. The applicant was born in 1976 and lives in Schalchen. 7. The applicant’s son K. was born out of wedlock on 26 May 2000. The child was given the applicant’s family name by decision of the Braunau District Administrative Authority of 29 June 2000. 8. At that time K.’s mother was living as a tenant in the applicant’s house, in a separate apartment. The applicant was sharing an apartment with his long-term partner, U., who later became his wife, and their son D. aged six at that time. During K.’s first year the applicant took parental leave and took care of him together with U. Subsequently, K.’s mother took parental leave. 9. In early January 2002 K.’s mother moved out of the applicant’s house. 10. On 28 January 2002 the applicant asked the Mattighofen District Court (Bezirksgericht) to transfer sole custody of K. to him under Article 176 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch). He submitted in particular that he and U. had mainly taken care of K. and that the child’s mother was not capable of doing so. The latter opposed the transfer of custody. At that stage and at all subsequent stages of the proceedings the applicant was assisted by counsel. 11. By letter of 12 February 2002 the Youth Office (Jugendamt), which had been following the case since summer 2001, expressed the view that both parents were capable of exercising custody. 12. On 12 March 2002 the applicant and K.’s mother appeared before the District Court and were heard by the judge. 13. According to the minutes, the applicant requested that the opinion of an expert in child psychology be taken. K.’s mother agreed to that request. The court appointed Dr J.-W., an expert in child psychology, and ordered him to submit an opinion on whether the interests of the child were better served by leaving sole custody with the mother or by awarding it to the applicant. The judge then proceeded to discuss the factual and legal issues with the parties. The parties then concluded an agreement to the effect that, pending a decision on custody, K. would spend three days with his mother and three days with the applicant. 14. The expert, Dr J.-W., submitted his opinion to the Court on 17 April 2002. The opinion was based on interviews which the expert had conducted with K.’s mother and the applicant and his partner. He had also paid a visit to the applicant’s home during which he had observed how the applicant and the other members of his family interacted with K. The expert opinion was served on the applicant. 15. On 8 July 2002 the District Court held a hearing in the presence of the applicant, his counsel, K.’s mother, Dr J.-W. and a representative of the Youth Office. 16. According to the minutes, the contents of the file were read out. Subsequently, Dr J.-W.’s opinion was discussed. In the course of the hearing Dr J.-W. supplemented his opinion. He expressed the view that K.’s mother was very immature and not yet capable of taking care of him and recommended the transfer of sole custody to the applicant. The representative of the Youth Office opposed the view that K.’s mother was not capable of raising the child. None of the parties made further submissions. 17. On the following day, that is, on 9 July 2002, the District Court ordered a second expert in child psychology, Dr R., to submit an opinion on whether or not K.’s mother was capable of taking care of him. In her opinion of 15 July 2002, Dr R. came to the conclusion that K.’s mother was sufficiently mature, did not show any emotional instability and was capable of taking care of him. A copy of this expert opinion was served on the applicant. 18. In addition the District Court requested the Youth Office to prepare a report. A representative of the Youth Office visited K. and his mother at their home and as a result of that visit concluded that she was able to exercise custody. 19. On 29 July and 13 August 2002 the applicant requested that a decisive expert opinion (Obergutachten) be commissioned. The motion contained comprehensive submissions on K.’s mother’s alleged incapacity to raise him. 20. The District Court ordered a third expert, Dr B., to submit a decisive expert opinion on the question whether K.’s mother was capable of exercising custody. 21. Both the applicant and K.’s mother made further written submissions. Each of them forwarded detailed arguments as to why the other parent was not an appropriate person to take care of K. 22. On 14 October 2002 Dr B. submitted his expert opinion. Having interviewed the applicant and K.’s mother, he found that both parents were in principle capable of taking care of K. The mother had some issues as regards her own personality development and a somewhat limited capacity to cope with everyday life. The applicant had a tendency to dominate and had given reason to fear that, if custody was awarded to him, he would try to curtail the mother’s access rights. The applicant could provide a more stable environment and a more coherent style of upbringing. However, K.’s best interests would not be manifestly endangered if custody remained with his mother. It was recommended that the applicant be given extensive access rights, in that K. should stay with him from Friday to Sunday every second weekend, spend two weeks with him in summer and one week during the Christmas period. 23. A copy of Dr B.’s expert opinion was served on the applicant, and he was given 14 days to submit comments. Within that time-limit, the applicant requested that the expert opinion be discussed at a hearing. He did not make any comments in writing. 24. Without holding a further hearing, the District Court dismissed the applicant’s request for sole custody of K. to be transferred to him by decision of 4 December 2002. 25. The District Court noted that under Article 166 of the Civil Code the mother of a child born out of wedlock had sole custody. A transfer of custody was only to be ordered if the child’s best interests were at risk. In the present case the applicant would have had to prove that K.’s mother was unable to take care of him. While the first expert, Mr J.-W., had come to the conclusion that this was the case, the second expert, Ms R., had reached the opposite conclusion. Finally, the decisive expert opinion by Mr B. had found it established that K.’s mother was capable of taking care of him. Having regard to the second and third expert opinions and to the view expressed by the Youth Office, it had been established that K.’s mother was able to exercise custody and the applicant had failed to adduce proof to the contrary. 26. Furthermore, the District Court noted that it had not considered it necessary to hold a hearing to discuss the decisive expert opinion, since it found that opinion coherent and convincing. The factual and legal issues of the case had therefore been sufficiently clarified and a hearing would only have delayed the proceedings. It followed that the applicant’s further requests for the taking of evidence had to be dismissed. 27. Finally, the court ruled that its decision was immediately enforceable with the consequence that the agreement of 12 March 2002 was no longer effective. 28. The applicant appealed. He complained about a number of procedural shortcomings. He alleged, inter alia, that the District Court had failed to hold a hearing for the purpose of discussing Dr B.’s expert opinion, and that it had not heard him in person. 29. In addition, the applicant contended that the relevant provisions of the Civil Code, namely, Articles 166 and 176, were discriminatory and suggested that the appellate court request the Constitutional Court to rule on their constitutionality. Since K. had been born out of wedlock, his mother had sole custody of him and he, as the child’s father, could only be awarded custody if the mother put the child’s well-being at risk. In the case of a child born in wedlock the parents had joint custody and retained it upon divorce or separation unless the child’s best interests required that sole custody be awarded to one of them. The application of different criteria when the parents of a child born out of wedlock separated lacked reasonable justification. 30. On 24 February 2003 the Ried Regional Court dismissed the applicant’s appeal. 31. The Regional Court found that the proceedings before the District Court had not suffered from any procedural defects. In non-contentious proceedings it was not always required to question the parties at a hearing. A hearing had been held on 8 July 2002 in the presence of the applicant. Furthermore, the applicant had had the opportunity to file written submissions, of which he had made ample use. He had also been interviewed by the experts. A further hearing for the purpose of discussing the decisive expert opinion of Dr B. would only have been required had there been substantial doubts as to its correctness. 32. Moreover, the Regional Court did not see any reason to request the Constitutional Court to rule on the constitutionality of the relevant provisions of the Civil Code. It noted that Article 167 of the Civil Code allowed life-companions to request joint custody. The applicant had not claimed to have cohabited with K.’s mother. On the contrary he had cohabited with another woman, U., who had meanwhile become his wife. 33. A distinction between children born in wedlock and children born out of wedlock was not discriminatory as long as it was objectively justified. The rule contained in Article 176 of the Civil Code that in the case of a child born out of wedlock (unless the parents had requested joint custody under Article 167) custody was only to be transferred if the mother put the child’s well-being at risk, was based on the consideration that in the majority of cases of children born out of wedlock it was actually the mother who took care of the child. 34. The applicant filed an extraordinary appeal on points of law. He repeated his complaints about the alleged procedural shortcomings. In particular, he submitted that the court had neither held a hearing to discuss the decisive expert opinion of Dr B. nor given him an opportunity to comment in writing. The applicant also reiterated his request for the case to be submitted to the Constitutional Court. 35. On 26 June 2003 the Supreme Court (Oberster Gerichtshof) dismissed the applicant’s extraordinary appeal on points of law. It noted that the courts were not obliged to hold hearings in custody proceedings. The applicant had been given the opportunity to comment on the expert opinion at issue. Moreover, the courts had correctly applied Article 176 of the Civil Code. It had not been shown that the mother put K.’s well-being at risk. 36. To date, K.’s mother continues to have sole custody of him while the applicant has a right of access under the terms recommended by the courts in the custody proceedings. 37. The relevant provisions of the Civil Code in the version in force at the material time read as follows: “The parents shall care for and raise the minor child, manage its assets and represent it in these, as well as in all other matters; care, upbringing and asset management also include representing the child in these matters before the law [in court]. The parents shall proceed on a consensual basis when complying with these obligations and exercising these rights.” “The mother shall have sole custody of an illegitimate child. Moreover, unless the present provisions stipulate otherwise, the provisions on legitimate children regarding maintenance and custody shall also apply to illegitimate children.” “(1) Whenever the parents of a child live in a common household, they may agree that both parents will have custody in the future. The court shall uphold the agreement if it serves the interests of the child. If one parent leaves the common household, other than on a temporary basis, § 177 and § 177a shall be applied accordingly. (2) Whenever the parents do not live in a common household, they can agree that the father shall also have full custodial powers or regarding specific matters in the future, if they present such an agreement to the court indicating the parent with which the child is to stay primarily. If the child stays primarily in the household of the father, the latter must also be assigned full custody. The court shall uphold the agreement if it serves the interests of the child.” 38. This version of Article 167 of the Civil Code was introduced by the 2001 Law Amending Child Custody Law, which entered into force on 1 July 2001. Before that date parents of an illegitimate child could only agree on exercising custody jointly if they were living in a common household. “(1) Whenever the parents put the well-being of a minor child at risk, on account of their conduct, the court will take the steps necessary to secure the interests of the child, irrespective of which party has applied to the court. In particular, the court may withdraw all or part of the custodial rights in respect of the child, ...” “(1) If the marriage of the parents of a minor legitimate child is dissolved or annulled, the custodial rights of both parents remain intact. However, they may present an agreement to the court – even modifying an existing agreement – regarding custodial responsibility. In this connection it may be agreed that one parent alone or both parents shall have custody. Where both parents have custodial powers, those of one parent may be limited to specific matters. (2) Where both parents have custody, they must submit an agreement to the court regarding the parent with whom the child is to stay primarily. This parent must always be put in charge of all custodial matters. (3) The court must approve the agreement of the parents, if it serves the interests of the child.” “(1) If an agreement in accordance with Article 177 on the main domicile of the child or on custodial powers is not reached within a reasonable period after a marriage is dissolved or annulled, or if it is incompatible with the interests of the child, the court must decide which parent shall henceforth have sole custody, if all attempts to reach an amicable solution fail. (2) If both parents have custody under Article 177 after their marriage has been dissolved or annulled, and if one parent applies for the withdrawal of that custody, the court must decide which parent shall have sole custody, if all attempts to reach an amicable solution fail.” “The above provisions shall also be applied if the parents of a minor legitimate child live apart, other than on a temporary basis. However, in such a case the court shall decide on custody only upon application by a parent.” 39. A recent case concerning similar complaints (Zaunegger v. Germany, no. 22028/04, §§ 22-27, 3 December 2009) contains the following summary of comparative law: “22. A survey on comparative law taking into account the national laws of a selection of Member States of the Council of Europe shows that basically all Member States included in the survey provide for joint parental authority by unmarried parents over their children born out of wedlock. The main elements referred to as a basis for allowing joint parental authority for unmarried parents are the establishment of paternity and the parents’ agreement to exercise joint authority. 23. However, the solutions in the Member States vary as regards the attribution of joint parental authority for children born out of wedlock in the event no agreement between the parents can be reached in this respect. 24. In only a limited number of countries do the statutory regulations explicitly address this issue. In a few countries, such as Austria, Norway and Serbia, the national law stipulates that the exercise of joint parental authority of unmarried parents requires the consent of both parents and thus implies that the non-consenting parent has a right of veto. By contrast, the laws in Hungary, Ireland and Monaco appear to provide for a joint exercise of parental authority even without the parents’ consent. 25. In some Member States such as the Czech Republic and Luxembourg, while the law itself is not clear on the subject, the domestic courts have interpreted the applicable provisions so as to allow joint parental authority only with the consent of the parents, whereas for example the Dutch Supreme Court has held that the national law has to be interpreted so as to enable the father of a child born out of wedlock to request joint parental authority with the mother even though the latter disagrees. A similar approach seems to be followed in Spain. 26. With the exception of the few countries where a right of veto of one parent is explicitly stipulated in national law, the most common solution put forward by national legislations is that a court decides on the outcome of a corresponding dispute between the parents at the request of one of the parents bearing in mind the best interests of the child. All Member States emphasise the importance of the child’s best interest in decisions regarding the attribution of custody. In determining the child’s best interest in this connection domestic courts commonly take into consideration the positions of the parents and the child and the particularegards, inter alia, the demonstrable interest in and commitment to the child by the respective parent. 27. In summary, ... , the survey confirms that while different approaches exist in the Member States, the majority provide for paternal participation in custody if the parents were not married to each other, either irrespective of the mother’s will or at least by court order following an evaluation of the child’s interests.” | 1 |
dev | 001-87369 | ENG | FRA | CHAMBER | 2,008 | CASE OF MEDVEDYEV AND OTHERS v. FRANCE | 2 | Violation of Art. 5-1;No violation of Art. 5-3;Non-pecuniary damage - finding of violation sufficient | Isabelle Berro-Lefèvre;Jean-Paul Costa;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger | 6. The applicants were crew members on a merchant ship named the Winner, flying the Cambodian flag. 7. As part of the international effort to combat drug trafficking, the French authorities were informed that the ship might be carrying large quantities of drugs. 8. By diplomatic telegram dated 7 June 2002, the French embassy in Phnom Penh informed the Ministry of Defence in Paris that, in response to a request from the Central Office for the Repression of Drug Trafficking (“OCRTIS”) for authorisation to intercept the Winner, and at the embassy's request, the Cambodian Minister of Foreign Affairs had personally given his Government's agreement. The Government produced a diplomatic note dated 7 June 2002, addressed by the Cambodian Ministry of Foreign Affairs to the French Embassy in Phnom Penh, stating: “The Ministry of Foreign Affairs and International Cooperation (...), referring to its note no. 507/2002 dated 7 June 2002, has the honour formally to confirm that the Royal Government of Cambodia authorises the French authorities to intercept, inspect and take legal action against the ship Winner, flying the Cambodian flag (...) belonging (...) to the Marshall islands. (...) » 9. The commander of the frigate Lieutenant de Vaisseau Le Henaff was instructed by the French naval authorities to intercept the Winner. 10. On 13 June 2002, at 6 a.m., the frigate spotted a merchant ship travelling at slow speed through the waters off Cape Verde. It was not flying a flag, but was identified as the Winner. Its nationality was verified in accordance with international law and, as a security measure, a speedboat was lowered into the water. The merchant ship suddenly changed course, in an attempt to evade the frigate. When attempts were made to contact it on the international radio frequency, it remained silent. At the same time, the crew jettisoned packages over the stern into the sea. The frigate then identified itself and asked the Winner to stop, while signalling the international code SQ (“stop or I shall open fire”) ; no answer came and the ship was still not flying a flag, so a warning shot was fired, followed by further shots to stop it. At the same time the speedboat was ordered to recover the parcels that had been jettisoned. It only managed to recover one. Upon subsequent verification it was found to contain 80 to 100 kg of a narcotic substance resembling cocaine. 11. Three more parcels were thrown overboard. As the freighter had still not stopped and was manoeuvring to prevent the speedboat from pulling alongside, France's Maritime Prefect for the Atlantic ordered the frigate to fire directly at the Winner's bow. This caused the Winner to stop, and an armed commando team boarded it and took control of it by armed force. One of the crew members, who sustained a bullet wound, was evacuated onto the frigate, where he was treated by the ship's doctor before being transferred to Brest hospital, where he died a week later. The rest of the crew were confined to their quarters on board the Winner under military guard. A tug was sent out from Brest, under orders from the Maritime Prefect and at the request of the public prosecutor in Brest, to tow the Winner into Brest harbour, escorted by the frigate Commandant Bouan. 12. On 13 June 2002, at 11 a.m., the Brest public prosecutor referred the case to OCRTIS for examination under the flagrante delicto procedure. It emerged that the Greek coastguard had had the Winner under observation in connection with international drug trafficking in which Greek nationals were involved. 13. On 24 June 2002, the Brest prosecutor's office opened an investigation into charges, against persons unknown, of leading a group with the aim of producing, making, importing, exporting, transporting, holding, supplying, selling, acquiring or illegally using drugs and conspiring to import and export drugs illegally. Two investigating judges were appointed. 14. On 26 June 2002, at 8.45 a.m., the Winner entered Brest harbour under escort. The crew and cargo were handed over to the police, acting under instructions from one of the investigating judges, who immediately notified the persons concerned that they were being placed in police custody and informed them of their rights. 15. The Government submitted that the two investigating judges went to see each of the detainees after twenty-four hours and after forty-eight hours to inform them that their police custody was being extended. 16. On 28 June 2002, Mr Viorel Petcu, Mr Puiu Dodica, Mr Nicolae Balaban and Mr Nicu Stelian Manolache were charged and remanded in custody pending trial. On 29 June 2002 so were Mr Oleksandr Medvedyev, Mr Bory Bilenikin, Mr Georgios Boreas, Mr Sergio Cabrera Leon, Mr Guillermo Luis Eduar Sage Martínez and two other crew members (Mr Oleksandor Litetski and Mr Symeon Theophanous). 17. The above eleven persons applied to the Investigation Division of the Rennes Court of Appeal to have the evidence disallowed; relying in particular on Article 5 of the Convention, they complained that the Winner had been arrested illegally and that their detention on board for thirteen days had also been illegal. In a judgment of 3 October 2002, the court dismissed their appeal and held that there were no grounds for disallowing the evidence. 18. In its judgment the Investigation Division pointed out that the international effort to combat drug trafficking was governed by the United Nations Single Convention on Narcotic Drugs of 30 March 1961, the United Nations Convention on the Law of the Sea, signed at Montego Bay on 10 December 1982, and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, signed in Vienna on 20 December 1988, all of which had been ratified by France. It considered that although Cambodia had not signed the Vienna Convention, Article 17.3 of which provided for derogations from the traditional principle of the “law of the flag State”, that did not prevent the French authorities from “requesting Cambodia's cooperation to obtain authorisation to intercept the Winner in order to put a stop to the drug trafficking in which all or part of its crew were suspected of engaging”, based on Article 108 of the Montego Bay Convention and “with reference” to the Convention of 30 March 1961. According to the Investigation Division, as the provisions of the Vienna Convention did not apply to Cambodia, it was for that State's authorities to ask the French authorities for the information they needed in order to determine, as they alone were entitled to do, whether the request for assistance was well founded. The court then held that the diplomatic telegram of 7 June 2002 from the French Embassy established the existence of “an agreement given without restrictions or reservations by the Government of Cambodia for the planned interception and all its consequences, and was authoritative until proven otherwise”. 19. However, the Investigation Division considered that the agreement in question did not dispense the French authorities from abiding by the rules of procedure set forth in the Vienna Convention and in Articles 12 et seq. of the Law of 15 July 1994 as amended. Nor, it pointed out, had the French authorities failed in that obligation in the circumstances. In the light of the reports drawn up by the commander of the Lieutenant de Vaisseau Le Henaff, the Investigation Division found that when the frigate had drawn within sight of the Winner the latter “was flying no flag” and its captain had “not only failed to answer the requests to identify the ship, in breach of the rules of international law, and failed to stop the ship, but [had] responded aggressively with a series of dangerous manoeuvres that jeopardised the safety of the French frigate and the lives of the sailors on the speedboat”, and the crew of the Winner had thrown parcels containing large quantities of cocaine into the sea. There had therefore been “reasonable grounds”, in the Investigation Division's view, to suspect the Winner of drug trafficking, so that “in using force to stop the Winner and taking appropriate measures to control and restrain the crew, who were confined to their quarters, and to take over and steer the ship”, the commander of the frigate had “strictly observed” the provisions of Article 17.4 of the Vienna Convention (under which he is authorised, when a ship is boarded and searched, “If evidence of involvement in illicit traffic is found, [to] take appropriate action with respect to the vessel, persons and cargo on board”) and the provisions of the Law of 15 July 1994 as amended, regulating the use of coercion measures, including, if necessary, the use of force in the event of refusal by a ship to submit to inspection (Articles 1 to 10), and providing for the implementation of the inspection and coercion measures provided for in international law in the particular case of drug trafficking (Articles 12 to 14). 20. The Investigation Division went on to dismiss the applicants' argument that Article 13 of the Law of 15 July 1994 as amended provided only for assistance measures of an administrative nature, which excluded any form of coercion in respect of people, as the Article mentioned in general terms that the competent maritime authorities had the power to carry out or have carried out “the inspection and coercion measures provided for in international law” and Article 17.4 c) of the Vienna Convention concerning drug trafficking expressly mentioned taking “appropriate action with respect to the vessel, persons and cargo on board”. Although it accepted that the exact nature of that action was not specified, the Investigation Division considered that the text concerned provided “at least for the competent naval authorities to limit, if necessary, the freedom of the boarded ship's crew to come and go; otherwise the provision would be meaningless and the safety of the men taking over control of the ship would be seriously jeopardised”. In respect of this last point, it considered that “it cannot be ruled out in the course of such operations against international drug traffickers on the high seas that the crew might have weapons hidden away and might seek to regain control of the ship by force”. It concluded that “the fact that the Winner's crew were confined to their quarters (...) under military guard so that the ship could be safely taken over and rerouted fell within the appropriate action provided for in Article 17.4 c) of the Vienna Convention”. 21. Lastly, the Investigation Division considered that the Law of 15 July 1994 “necessarily required some departure from ordinary criminal procedure to allow for the specific needs of the effort to combat drug trafficking by ships on the high seas, in keeping with the rules of international law, and for the fact that it was impossible in practice, bearing in mind the time needed to sail to the new port of destination, to apply the ordinary rules governing detention and the right to be brought promptly before a judge”. Accordingly, the restrictions placed on the movements of a boarded ship's crew, as authorised in such cases by the United Nations Convention signed in Vienna on 20 December 1988, were not at variance with Article 5 § 3 of the Convention and did not amount to unlawful detention. It also noted that in this particular case, as soon as the Winner had docked, its crew had been handed over to the police, immediately informed of their rights and placed in custody, then brought before the investigating judge. 22. An appeal on points of law lodged by the applicants (complaining in particular of a violation of Article 5 § 3 of the Convention) was dismissed in a judgment of the Criminal Division of the Court of Cassation of 15 January 2003. According to that court, “in ruling as it did, in so far as Cambodia, the flag State, [had] expressly and without restriction authorised the French authorities to stop the Winner and, in keeping with Article 17 of the Vienna Convention, only appropriate action had been taken against the persons on board, who [had been] lawfully taken into police custody as soon as they landed on French soil, the Investigation Division [had] justified its decision”. 23. In a judgment of 28 May 2005 the Ille-et-Vilaine Special Assize Court found Mr Georgios Boreas, Mr Symeon Theophanous, Mr Guillermo Sage Martínez and Mr Sergio Cabrera Leon guilty of conspiracy to illegally attempt to import narcotics and sentenced them respectively to twenty years', eighteen years', ten years' and three years' imprisonment; it acquitted the other applicants of the charges against them. The parties have not said what the outcome of a subsequent appeal was. 24. France is party to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances signed in Vienna on 20 December 1988, Article 17 of which reads as follows: “ILLICIT TRAFFIC BY SEA 1. The Parties shall co-operate to the fullest extent possible to suppress illicit traffic by sea, in conformity with the international law of the sea. 2. A Party which has reasonable grounds to suspect that a vessel flying its flag or not displaying a flag or marks of registry is engaged in illicit traffic may request the assistance of other Parties in suppressing its use for that purpose. The Parties so requested shall render such assistance within the means available to them. 3. A Party which has reasonable grounds to suspect that a vessel exercising freedom of navigation in accordance with international law, and flying the flag or displaying marks of registry of another Party is engaged in illicit traffic may so notify the flag State, request confirmation of registry and, if confirmed, request authorization from the flag State to take appropriate measures in regard to that vessel. 4. In accordance with paragraph 3 or in accordance with treaties in force between them or in accordance with any agreement or arrangement otherwise reached between those Parties, the flag State may authorize the requesting State to, inter alia: a) Board the vessel; b) Search the vessel; c) If evidence of involvement in illicit traffic is found, take appropriate action with respect to the vessel, persons and cargo on board. 5. Where action is taken pursuant to this article, the Parties concerned shall take due account of the need not to endanger the safety of life at sea, the security of the vessel and the cargo or to prejudice the commercial and legal interests of the flag State or any other interested State. 6. The flag State may, consistent with its obligations in paragraph 1 of this article, subject its authorization to conditions to be mutually agreed between it and the requesting Party, including conditions relating to responsibility. 7. For the purposes of paragraphs 3 and 4 of this article, a Party shall respond expeditiously to a request from another Party to determine whether a vessel that is flying its flag is entitled to do so, and to requests for authorization made pursuant to paragraph 3. At the time of becoming a Party to this Convention, each Party shall designate an authority or, when necessary, authorities to receive and respond to such requests. Such designation shall be notified through the Secretary-General to all other Parties within one month of the designation. 8. A Party which has taken any action in accordance with this article shall promptly inform the flag State concerned of the results of that action. 9. The Parties shall consider entering into bilateral or regional agreements or arrangements to carry out, or to enhance the effectiveness of, the provisions of this article. 10. Action pursuant to paragraph 4 of this article shall be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect. 11. Any action taken in accordance with this article shall take due account of the need not to interfere with or affect the rights and obligations and the exercise of jurisdiction of coastal States in accordance with the international law of the sea.” France has not, however, signed the “Agreement on Illicit Traffic by Sea, implementing article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances”, signed in Strasbourg on 31 January 1995, which entered into force on 1 May 2000. 25. Inserted by Law no. 96-359 of 29 April 1996 “on drug trafficking at sea and adapting French legislation to Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances signed in Vienna on 20 December 1988”, section 13 of Law no. 94-589 of 15 July 1994 “on conditions governing the exercise by the State of its powers to carry out checks at sea” reads as follows (version applicable at the material time): “Where there exist reasonable grounds to suspect that one of the vessels referred to in section 12 and sailing outside territorial waters is engaged in illicit drug trafficking, commanders of State vessels and of aircraft responsible for surveillance at sea shall have the power – under the authority of the Maritime Prefect, who shall inform the Public Prosecutors' Office – to carry out, or have carried out the inspection and coercion measures provided for under international law and under this law.” Section 12 of the law (in the version applicable at the material time) stipulates that section 13 applies, not only to ships flying the French flag but also “to ships flying the flag of a State Party to the Vienna Convention of 20 December 1988 other than France, or lawfully registered in such a State, at the request or with the agreement of the flag State” (in the version amended by Law no. 2005-371 of 22 April 2005, Section 12 refers to “ships flying the flag of a State which has requested intervention by France or agreed to its request for intervention”) and “to ships displaying no flag or having no nationality”. It adds that “the investigation and establishment of drug trafficking offences committed at sea, and prosecution and trial therefor” are to be governed by the following provisions (version applicable at the material time): “Chapter I. - Measures taken at the request or with the agreement of a State Party to the above-mentioned Vienna Convention of 20 December 1988 Section 14 I. – Where he decides to search the ship, at the request or with the agreement of a State Party to the above-mentioned Convention, the commander may have any narcotic substances found on board seized, together with any objects or documents which appear to be linked to drug trafficking. They shall be placed under seal in the presence of the captain of the ship or any person found on board the ship. II. - The commander may order the ship to be rerouted to an appropriate position or port when more thorough inspection is required that cannot be carried out at sea. The ship may also be rerouted to a point located in international waters if the flag State expressly requests it, with a view to taking control of the ship. III. – A report on the measures taken in application of Article 17 of the Vienna Convention, and the products, objects or documents placed under seal, shall be handed over to the authorities of the flag State when no further judicial action is taken on French soil. Chapter II. – Powers of the French courts Section 15 Persons accused of drug trafficking on the high seas and their accomplices may be prosecuted and tried by the French courts when bilateral or multilateral agreements or special arrangements have been concluded between States Parties to the Vienna Convention. Such special arrangements shall be transmitted through diplomatic channels to the French authorities, together with any information capable of giving rise to a suspicion that a ship is engaged in drug trafficking. A copy of these documents shall be forwarded by any means and without delay to the public prosecutor. Section 16 Police officers acting in accordance with the provisions of the Code of Criminal Procedure, customs officers and, when specially so authorised under conditions laid down by a decree of the Conseil d'Etat, commanders of State vessels, naval officers on board such vessels and commanders of State aircraft responsible for patrolling the seas, shall all be empowered to establish that drug trafficking offences are being committed and bring the offenders to justice in the following manner: I. – The relevant public prosecutor shall be given prior notification, by any means, of the operations envisaged with a view to investigating and establishing the offences. The offences shall be placed on record and the record thus made shall be authoritative unless proven otherwise. The report drawn up shall be communicated to the public prosecutor without delay and at the latest within fifteen days following the operations. The interested party shall be given a copy. II. – Subject to the authorisation of the public prosecutor (except in cases of extreme urgency), searches may be made and narcotic substances seized as well as objects or documents that appear to be linked to an offence under the legislation on narcotic substances, or to serve to commit such an offence. Such authorisation shall be communicated by any means. The substances, objects or documents seized shall immediately be placed under seal. Searches may be carried out and items seized on board the ship outside the times laid down in Article 59 of the Code of Criminal Procedure.” 26. France is also party to the Single Convention on Narcotic Drugs of 30 March 1961, Article 35 of which reads as follows: “Having due regard to their constitutional, legal and administrative systems, the Parties shall: a) Make arrangements at the national level for co-ordination of preventive and repressive action against the illicit traffic; to this end they may usefully designate an appropriate agency responsible for such co-ordination; b) Assist each other in the campaign against the illicit traffic in narcotic drugs; c) Co-operate closely with each other and with the competent international organizations of which they are members with a view to maintaining a co-ordinated campaign against the illicit traffic; d) Ensure that international co-operation between the appropriate agencies be conducted in an expeditious manner; and e) Ensure that where legal papers are transmitted internationally for the purposes of a prosecution, the transmittal be effected in an expeditious manner to the bodies designated by the Parties; this requirement shall be without prejudice to the right of a Party to require that legal papers be sent to it through the diplomatic channel; f) Furnish, if they deem it appropriate, to the Board and the Commission through the Secretary-General, in addition to information required by article 18, information relating to illicit drug activity within their borders, including information on illicit cultivation, production, manufacture and use of, and on illicit trafficking in, drugs; and g) Furnish the information referred to in the preceding paragraph as far as possible in such manner, and by such dates as the Board may request; if requested by a Party, the Board may offer its advice to it in furnishing the information and in endeavouring to reduce the illicit drug activity within the borders of that Party.” 27. Articles 108 and 110 of the United Nations Convention on the Law of the Sea, signed at Montego Bay on 10 December 1982, read as follows: “Article108: Illicit traffic in narcotic drugs or psychotropic substances 1. All States shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions. 2. Any State which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the cooperation of other States to suppress such traffic.” “Article 110: Right of visit 1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that: (a) the ship is engaged in piracy; (b) the ship is engaged in the slave trade; (c) the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109; (d) the ship is without nationality; or (e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship. 2. In the cases provided for in paragraph 1, the warship may proceed to verify the ship's right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration. 3. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained. 4. These provisions apply mutatis mutandis to military aircraft. 5. These provisions also apply to any other duly authorized ships or aircraft clearly marked and identifiable as being on government service.” | 1 |
dev | 001-59562 | ENG | TUR | CHAMBER | 2,001 | CASE OF AVSAR v. TURKEY | 1 | Preliminary objection partially dismissed (non-exhaustion of domestic remedies);Preliminary objection partially joined to merits (non-exhaustion of domestic remedies);Violation of Art. 2 with regard to lack of effective investigation;Violation of Art. 2 with regard to death of applicant's brother;No violation of Art. 3;Violation of Art. 13;No violation of Art. 14;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Elisabeth Palm | 8. This case concerns, principally, the events between 22 April and 7 May 1994, when Mehmet Şerif Avşar who had been taken away by armed men was found killed outside Diyarbakır. A criminal prosecution brought against five village guards and an ex-member of the PKK on 5 July 1994 culminated recently in a decision of the Diyarbakır Criminal Court no. 3 of 21 March 2000. 9. The facts being disputed by the parties, the Commission appointed Delegates who took evidence in Ankara from 4 to 6 October 1999. They heard the following witnesses: Mr Mehmet Ali Avşar (brother of the deceased Mehmet Şerif Avşar); Mr Edip Avşar (cousin of the deceased); Mrs Şenal Sarihan, the lawyer representing the family at the criminal trial; Mr Süleyman Avşar, father of the deceased; Mr Ömer Güngör, Mr Fevzi Gökçen, Mr Zeyyat Akçil, Mr Yaşar Günbatı and Mr Aziz Erbey, the five village guards charged in relation to the kidnapping and murder of Mehmet Şerif Avşar; Mr Mehmet Mehmetoğlu, the ex-member of the PKK and confessor, charged in relation to the kidnapping and murder of Mehmet Şerif Avşar; Mr Kadir Metin, assistant commander of the Diyarbakır provincial gendarmerie command in 1994; Mr Mithat Gül, commander of the Diyarbakır provincial central district gendarmerie in 1994; Mr Şinasi Budaklı, intelligence operations NCO at the provincial central district gendarmerie in 1994; Mr Ümit Yüksel, public prosecutor in the criminal trial from 1998 to date; Mr Mustafa Atagün, public prosecutor who drew up the indictment for the criminal trial. 10. The transcripts of the oral evidence, together with the documentary evidence provided by the parties to the Commission, have been transmitted to the Court. Additionally, the Government have provided the decision of the Diyarbakır Criminal Court no. 3 of 21 March 1993 and other documentary materials requested by the Commission Delegates. This material is summarised below (Sections C and D), as are the submissions by the parties concerning the facts (Sections A and B). 11. Between 1992-1994, a large number of disappearances and unexplained killings occurred in the south-east of Turkey in the context of counter-insurgency measures against the PKK. The province and city of Diyarbakır were particularly notorious for this phenomenon. The involvement of security forces and shadowy gangs linked to elements in the security forces was rumoured and supported, inter alia, by the findings of the Susurluk report. 12. The Avşar family was headed by Süleyman Avşar, who had 16 children. His son Mehmet Şerif Avşar, born in 1966, was married with two children, Silan born in 1988 and Servan born in 1993. He, with his brother Mehmet Ali Avşar and another relative, owned a company which sold fertilisers to farmers. Other brothers included Abdulkerim Avşar, who had been arrested and charged with PKK offences and the applicant Behçet Avşar who had been convicted and sentenced to eight years’ imprisonment but had fled to Germany, where in 1994 he was European correspondent for the Özgür Gündem newspaper. 13. On 21 April 1994, Lieutenant Altınoluk, commander of Hazro district gendarmerie instructed five village guards to travel to Diyarbakır to assist in the detention of four suspects. He gave them a car registered 21AF989. The car which was used by the guards to go to Diyarbakır and during their activities in Diyarbakır belonged to a person detained for PKK activities and it was given to the guards for their use, though it was later alleged that they had been instructed to deliver it to the gendarmerie in Saraykapı, Diyarbakır. On arrival at the Saraykapı gendarme station Captain Mithat Gül sent them to the Anti-Terror police to assist in the apprehension of three or four suspects. These suspects were brought back to the Saraykapı station, from where they were to be sent on to Hazro. 14. On 22 April, at about 11.00 hours, the five village guards entered the fertiliser business premises run by the Avşar family in Diyarbakır. They started talking to Mehmet Şerif Avşar and stated that they were going to take him into custody. It was not apparent that they had come for Mehmet Şerif Avşar personally rather than acting with the intention merely of taking away one of the family. When their authority to take Mehmet Şerif Avşar was challenged, they spoke on a walkie-talkie and two village guards left to find a police officer. Mehmet Mehmetoğlu and a seventh person then arrived. The seventh man acted as if he was in charge and the village guards deferred to him. He was referred to as “müdür” (director), spoke proper Turkish and wore glasses. The seven men took Mehmet Şerif Avşar from the shop, placing him in a white Toros car. Members of the family (Abdullah and Sait Avşar) who followed the car saw it enter the district central gendarmerie, Saraykapı, which was about five minutes away. 15. The family made complaints to the authorities, describing and giving, in some cases, the names of the men who had abducted Mehmet Şerif Avşar. 16. The white car used in the abduction was found on 25 April 1994 in Hazro and returned to Diyarbakır, where it was handed over to the family of the owner. 17. On 5 May 1994, an identification parade was held and four village guards were identified. The fifth village guard and Mehmet Mehmetoğlu were also detained. On 6 May 1994, Captain Mithat Gül, in charge of the investigation, carried out a reconstruction of the abduction at the family’s shop. The five guards admitted involvement in the abduction and Mehmet Mehmetoğlu admitted being present at the abduction but denied involvement in the incident. They denied the presence of any seventh person. 18. On 7 May 1994, Ömer Güngör took the gendarme investigators to a disused building 19 km from Diyarbakır on the Diyarbakır-Silvan highway. Mehmet Şerif Avşar’s body was found there. He had been shot twice in the head. 19. On 18 June 1994, there was an attempted abduction of two Avşar cousins in Bismil, Edip and Nedim. 20. On 5 July 1994, the trial of the five village guards and Mehmet Mehmetoğlu opened in Diyarbakır Criminal Court no. 3. In testimony to the court, the village guards partially retracted their pre-trial statements and claimed that a seventh person was present and that he took charge of the detention of Mehmet Şerif Avşar. On several occasions during the trial (5 July, 24 August and 19 October) the village guards testified that they had acted under orders and that the killing and abduction of Mehmet Şerif Avşar had been carried out under the orders of Mehmet Mehmetoğlu and a gendarme special sergeant. 21. From the beginning of the trial, the Avşar family suffered intimidation, resulting in them ultimately closing down their business and moving to Istanbul. The family’s lawyer Şenal Sarihan was also intimidated when she attended the trial in Diyarbakır. 22. On 16 October 1994, Ömer Güngör identified the special sergeant as Gültekin Seçkin, from the 7th Army corps infantry battalion, code-named Hoca. 23. At the beginning of 1998, the Susurluk report was published, which named Gültekin Şütçü and Mehmet Mehmetoğlu in connection with the killing of Mehmet Şerif Avşar. It stated that, amongst various other activities, a gang including Alaattin Kanaat, Mehmet Mehmetoğlu, Ahmet Demir and a specialist sergeant Gültekin Şütçü were involved in extorting money and that they tried to extort money from Mehmet Şerif Avşar using threats against his brother Abdulkerim who was in detention suspected of PKK activities, killing him when he refused to pay. On 16 February 1998, the name Gültekin Şütçü was raised in the trial. On 18 June 1999, the family’s lawyer requested the court to enquire as whether Gültekin Şütçü had served in Diyarbakır in 1994. The court made a request for information to the army authorities. On 4 August 1999, the court received the response that Gültekin Şütçü left his duties in the region on 15 August 1994. The court referred the file to the public prosecutor for information to be gathered on Gültekin Şütçü and requested a statement be taken from him. On 20 September 1999, the lawyer for Ömer Güngör requested a confrontation between Gültekin Şütçü and her client. 24. On 21 March 2000, the court convicted the six defendants. Ömer Güngör was convicted of murder and sentenced to 20 years’ imprisonment while the others were convicted of aiding and abetting and given six years and eight months’ imprisonment. Ömer Güngör, the prosecutor and the Avşar family appealed against the decision. On the same day, after being informed that Gültekin Şütçü had left his place of residence to go to Bulgaria, the court issued an arrest warrant. 25. The Government submit that it is premature to make any observation on the facts as firstly, the decision of the Diyarbakır Criminal Court of 21 March 1993 is subject to appeal to the Court of Cassation which has the power to require the first instance court to fill the gaps in the investigation or collect further evidence and, secondly, as the Diyarbakır court has in its judgment notified the offence allegedly committed by Gültekin Şütçü to the public prosecutor, who will now carry out an investigation. 26. This stated that on 22 April 1994 five armed persons, who said they were village guards, came to the fertiliser business premises and asked to take away Mehmet Şerif Avşar. Two more persons came, who made themselves known as security officers. They took Mehmet Şerif Avşar away by force in a white Toros car 21AF989, with the car 21T1127 following behind. The petitioner and other brothers followed and saw that the cars entered the provincial central gendarme command. Abdullah Avşar saw the village guards inside the grounds of the gendarmerie. They had learned the names of two of the village guards – Ömer the lame and Ali. The family was concerned by the way Mehmet Şerif Avşar had been taken and the denials of the authorities that he had been taken into custody. He requested that the necessary proceedings be instituted in respect of the perpetrators. 27. On 22 April 1994, at about 11.30 hours, five armed men came to their workplace to take away Mehmet Şerif Avşar. When they opposed this, the men stated that they were village guards. Two people came then, who claimed that they were security officers. The seven men took away Mehmet Şerif Avşar, getting into two cars 21AF989 and 21T1127. He and his brothers followed them to the provincial central gendarmerie. Abdullah Avşar identified the five village guards whom he saw in the grounds. The gendarme commander said that he would carry out the necessary legal procedures. The family was concerned by the way Mehmet Şerif Avşar had been taken and the denials of the authorities that he had been taken into custody. He requested that the necessary proceedings be instituted in respect of the perpetrators. 28. On 22 April, at about 11.00 hours, five men came to the shop, saying that they were policemen. They spoke to Mehmet Şerif Avşar, saying that he had to give a statement on behalf of his brother Abdulkerim who was in custody in Diyarbakır prison. Mehmet Şerif Avşar said that they had not given him their identification and that he would be happy to give his statement to a uniformed police officer. There was an argument between the men and the Avşar brothers. The men said that they would call the police station and as a result the brothers heard that they were village guards. Two more people appeared, claiming to be policemen, speaking Turkish and flashing cards. As the argument continued, one of the two men pulled a gun, and the others followed suit. As Mehmet Şerif Avşar believed that they were going to shoot, he agreed to go with them. The brothers saw five men and Mehmet Şerif Avşar get into a Renault car AF989, while the others got into a taxi 21T1127. The brothers jumped into their own car and followed to the Saraykapı gendarmerie, where they could not go in after the two cars. They could see three of the village guards outside the command building. They saw two of the men from the shop driving off in a blue car (06CDE35). A gendarme denied Mehmet Şerif Avşar was there and they could not get anyone to do anything. 29. They returned to their shop and phoned the police who said that Mehmet Şerif Avşar had not been kidnapped but was at the gendarmerie. They made written petitions to the governor, State Security Court prosecutor and the judicial prosecutor. All denied that his brother was in custody. Someone called their house, saying that Mehmet Şerif Avşar had been killed and they were all next. They had given up hope of seeing their brother alive. 30. On 18 June 1994, in Bismil, armed persons shot at his two cousins Edip and Nedim. Nedim managed to run away. Edip was caught, beaten and taken to the Bismil gendarme headquarters. Both the police and gendarmes denied to the family that he was in custody. Edip was released the next day from the gendarme headquarters. Shortly before the trial concerning the killing of his brother Mehmet Şerif Avşar, his family had been threatened by the Saraykapı gendarmes, who warned that if the family mentioned the gendarmes in court things would get worse for them. 31. The petitioner was the lawyer acting for the family in the trial against six accused for the kidnapping and murder of Mehmet Şerif Avşar. She pointed out that, though the six accused had initially denied the involvement of the seventh person, during the trial on 5 July 1994 the five village guards had said that the incident had been carried out on the orders of Mehmet Mehmetoğlu and a gendarme officer known as “the director”. Their description of the seventh man corroborated her clients’ account. 32. Captain Mithat Gül, who had much information about the incident had failed to attend the court under summons although he worked next door to the judicial buildings. She also complained that the three Avşar brothers had been subject to threats and had been forced to leave Diyarbakır. When she came to Diyarbakır to attend the trial, she was followed by a car with four armed plain clothed men inside. She had reported this to the chairman of the Diyarbakır bar. On 21 September 1993, as she passed through security control at the airport, a plain clothed man who had followed behind her issued a threat. 33. The car 21AF989, taken from Mehmet Koyun, accused of aiding the PKK and sent to Diyarbakır, was at Hazro. It was handed over to Yaşar Günbatı, Feyzi Gökçen, Zeyyat Akçil and Aziz Erbey, who were to deliver it to Mehmet Koyun’s family at Tellikaya village. The document was signed also by the four village guards. 34. This stated that the car 21AF989 had been found in the garden of the Hazro gendarme command. On 21 April, it had been handed over to Yaşar Günbatı, Feyzi Gökçen, Aziz Erbey and Zeyyat Akçil to be taken to the Diyarbakır central gendarmerie. It was understood that they had been unable to contact anyone and after waiting for two days rejoined the convoy coming back to Hazro. As it was dark, they left the car in the garden. 35. The document was also signed by the four village guards. 36. The first recorded the transfer of car 21AF989 from a Hazro officer to an officer from the Diyarbakır central gendarmerie. The second recorded that the owner of the car Abdi Koyun received it from the gendarmerie in perfect condition. 37. On 22 April, at about 11.30 hours, three persons entered the business premises of the Avşar brothers from car 21AF989. They told Mehmet Şerif Avşar that they would take him away. Mehmet Ali told them that his brother would not go until the police arrived. Four more men entered, making a total of seven. The men pulled guns out when they opposed them. They took his brother, got into two cars and drove to court buildings. The brothers, who followed, told the gendarmes. One gendarme asked if he could identify the individuals and he went up to the building and pointed to three men, whom he learned were village guards. He identified a fourth man, getting out of a car in the yard. When the brothers approached the gendarme commander, he said that the village guards would be handed over to security officials. The gendarmes said however that Mehmet Şerif Avşar was not at the gendarmerie. 38. On 22 April, at about 11.30 hours, three persons entered the business premises of the Avşar brothers from car 21AF989, wanting the brothers to make a statement at the justice buildings about his brother Abdulkerim who was involved with the PKK and in prison. He told them that this was not possible. The men said that they were village guards. He said no-one would go until the police arrived. Two more men entered, saying that they were police officers. When they objected, six men pulled their guns and said that they would take one of the brothers away, randomly pulling at Mehmet Şerif Avşar. Four men and Mehmet Şerif Avşar got into a car with a wireless and weapon inside. Three other men got into a second car. He remained in the shop while his other brothers followed the cars to Saraykapı, where the provincial central gendarmerie is at the entrance of the court building. His brothers reported immediately to gendarmes that four village guards, present at that time, had taken their brother. The gendarmes, a duty NCO and an NCO called Okan said that they would refer the village guards to security. His brothers left. They later found the names of two of the village guards, Ömer and Ali. 39. On 22 April, between 11.00 and 11.30 hours, he saw Mehmet Şerif Avşar arguing with someone in the shop. The man wanted him to go with him to give a statement. Şerif said he would only go with a police officer. The man went out to a white Toros car (21AF989), where there were two men, one of whom spoke to the police on the radio. In less than a minute, two men came into the shop, introducing themselves as police officers. This man said that one of the brothers had to come and make a statement for their brother Abdulkerim. Mehmet Ali protested that Abdulkerim was in prison and should make his own statement. A quarrel began and three more persons came in. The man whom he had described said ‘Shoot them’ and he and three men drew their guns. Then they took Mehmet Şerif Avşar into the Toros car. He described the men in the shop, stating that the one with the radio was called Ömer. The two men who had claimed to be security officers both spoke Turkish properly without a local accent; the taller one wore sunglasses. He wanted the people who abducted his brother to be found. 40. On 22 April, at about 11.15 hours, he saw three villagers enter their business premises. He asked what they wanted. A man said that his brother Abdulkerim had to make a statement at Saraykapı court building but as he was in prison one of his brothers should come to make a statement instead. The witness objected that they could not make a statement for Abdulkerim. The man claimed that they were security personnel. The witness asked him to show his ID and then said that he would phone the police. At this point, two persons came inside to join the three villagers. There were two men outside in a white Toros car 21AF989, who also came inside, making seven. Two of the men drew guns and forced the brothers against a wall, threatening to kill them. Mehmet Şerif Avşar then said that he would go with them. The seven men took his brother and left in two cars. The witness and others followed in their own car but could not find their brother. They went to the police station, gave their statements and after 10-15 minutes were told that Mehmet Şerif Avşar was with the gendarmes. They also gave a petition to the public prosecutor and to the gendarmes at Saraykapı. The gendarmes said that Mehmet Şerif Avşar was not there. When the brothers told this to the police, the police said that they must have misunderstood the matter. 41. The witness gave detailed descriptions of the men in the shop. He described one of the men who claimed to be a security official as speaking very proper Turkish, clean-shaven with sunglasses. 42. On 22 April, at about 11.30 hours, three persons in villagers’ clothes entered their shop. A few minutes later, four more men entered. The witness was outside in the kiosk and when he heard quarrelling, he went inside. The men were arguing with his elder brother Mehmet Ali. The witness did not understand what was going on. One of the men pulled a gun on him. The brothers were made to stand against the wall. Mehmet Şerif Avşar said that he would go with them. He and four men got into a white car 21AF989 and the others got into a taxi 21T1127. After about ten minutes, the brothers drove to the Saraykapı court building, which was where the men had told Mehmet Ali they were going. The men had said that they were security personnel. The brothers saw the taxi driver of the second car and he told them that he had taken the men to the Saraykapı court building. When they got there, they could not see their brother though they saw one of the abductors sitting by the fountain. They told this to a gendarme who said that it was not their business and that village guards were within the jurisdiction of the gendarmes. The witness told an NCO in front of the gendarmerie building that the abductors of his brothers were there – he could see three in the gendarmerie. The brothers were told to go and that if the persons had abducted their brother, they would be handed to the police. 43. The witness gave a description of the men in the shop. One wore sunglasses and spoke Turkish properly without a local accent. They had seen one of the abductors leaving the gendarmerie in a blue or black car O6CD35 while they were waiting at the front of the gendarmerie. 44. The witness, a village guard from Oyuklu village, was asked about the alleged abduction of Mehmet Şerif Avşar by village guard Ömer the lame and other Okuylu village guards. The witness denied any involvement. He said that Ömer could only walk with the help of crutches and was too disabled to be involved. 45. The witness, the muhtar and head village guard of Oyuklu village, was asked about the alleged abduction of Mehmet Şerif Avşar by village guard Ömer the lame and other Okuylu village guards. The witness denied any involvement. He said that his son Ömer was disabled and certainly could not be involved. 46. The report referred to seven armed persons, who claimed to be security personnel, having abducted Mehmet Şerif Avşar from his shop. The investigation indicated that among the perpetrators were village guards Aziz Erbey, Ömer Güngör, Feyzi Gökçen and Yaşar Günbatı. Twenty-two persons were gathered for an identification parade including these persons. The brothers Mehmet Sait, Mehmet Ali and Abdullah Avşar were present. 47. Mehmet Ali identified Aziz Erbey, Feyzi Gökçen and Yaşar Günbatı. Abdullah identified Ömer Güngör, definitely, and Aziz Erbey, less certainly. Mehmet Sait identified Yaşar Günbatı. 48. This informed the public prosecutor that Aziz Erbey, Feyzi Gökçen, Ömer Güngör and Yaşar Günbatı had been identified and that Mehmet Mehmetoğlu and Zeyyat Akçil had also been detained on suspicion of involvement. It requested an extension in custody in order to complete the investigation. 49. This described a reconstruction of the incident at the Avşar business premises. Feyzi Gökçen, Yaşar Günbatı and Aziz Erbey entered the shop and said that on 22 April they had gone in and asked if this was the shop of Abdulkerim Avşar. They said that they were security personnel and that one of the brothers should come with them to make a statement at the Saraykapı court building in Abdulkerim’s place. The people in the shop did not believe them and would not go unless the police came. They said that they would bring the police. Meanwhile, Zeyyat Akçil and Ömer Güngör were outside by a car. They said that they never went inside the shop and showed where they waited. Mehmet Mehmetoğlu had come along from outside and said, “I am a policeman. Do what these people want.” As the brothers were not convinced, Ömer Güngör, Yaşar Günbatı, Mehmet Mehmetoğlu and Aziz Erbey pulled out their guns. They acted this out. Then the victim had said that he would come. Ömer Güngör and Mehmet Mehmetoğlu took him by the arms. The accused said that Ömer Güngör, Yaşar Günbatı and Zeyyat Akçil got into the car 21AF989 with the victim, while the other three accused got into a cab that was passing. 50. The witnesses (Mehmet Ali, Mehmet Sait and Abdullah Avşar) were asked if they agreed with this description of the event. They said that there was another man, in addition to these six accused, whom they described, inter alia, as speaking Turkish without an accent. 51. The vehicle 21AF989 belonged to this witness. His son had driven it to Hazro on 12 April 1994 and had been apprehended and taken to Diyarbakır to be questioned. The car remained at Hazro gendarmerie. The witness took delivery of it from Hazro on 25 April 1994. 52. The suspect was asked to submit his defence to the charge that he, along with six friends, had kidnapped Mehmet Şerif Avşar. 53. The suspect said that on 21 April 1994 he arrived in Diyarbakır with his friends Feyzi Gökçen, Ömer Güngör, Aziz Erbey and Zeyyat Akçil. They had the duty to deliver a car 21<A>F989 to the central gendarme command. Ömer Güngör joined them later. When they arrived, they helped anti-terror police apprehend four men wanted by Hazro gendarmerie. The village guards were to deliver them to Hazro. They spent the night in Saraykapı gendarmerie at a place used for village guards. On 22 April, they went to the shopping district in the car. Ömer Güngör pointed out the Avşar shop and said that Mehmet Şerif Avşar, brother of Abdulkerim, was in contact with the PKK and that they should apprehend him to take along with the others. They met Mehmet Mehmetoğlu at this point and he went along with them to the shop. 54. Inside the shop, they introduced themselves as security officials. There were six of them, no-one else was with them. After taking Mehmet Şerif Avşar, the suspect, Ömer Güngör and Zeyyat Akçil went in the car 21<A>F989 towards the Saraykapı court buildings. Ömer Güngör told Mehmet Şerif Avşar they would hand him over to Hazro. Mehmet Şerif Avşar said that he knew where Ömer Güngör’s brother was buried and that he would show them. He said that he should not be handed over but that they could go together to Lice and look for Ömer Güngör’s brother. Ömer Güngör agreed. They picked up Feyzi Gökçen and Aziz Erbey who arrived in another car and they went off towards Lice. After a while, some of the guards, including this suspect, doubted that they had the authority to go to Lice and decided to go back. They left Ömer Güngör and Mehmet Şerif Avşar by some ruined buildings to fetch another car. They could not find one. When they went back to find Ömer Güngör and Mehmet Şerif Avşar at about 13.30 hours, they found Ömer Güngör crying by the roadside. He said that he had accidentally shot Mehmet Şerif Avşar. They all panicked. Ömer Güngör threw the gun into the river and they drove back to Diyarbakır. They left the four suspects with the soldiers who came in the convoy from Hazro and made an excuse to leave. They deposited the car 21AF989 somewhere near the Hazro gendarmerie and returned to their villages. 55. He had thought that they were going to hand Mehmet Şerif Avşar over to the gendarmes. He had not wanted the incident to end as it did. No official authority had ordered them to apprehend Mehmet Şerif Avşar. He acknowledged that the unlicensed gun found at his address was his and used in the abduction. 56. The suspect was asked to submit his defence to the charge that he, along with six friends, had kidnapped Mehmet Şerif Avşar. 57. The suspect said that on 21 April 1994 when he went to Hazro district gendarmerie to get permission to go to Diyarbakır for personal reasons, he met fellow village guards Yaşar Günbatı, Aziz Erbey and Zeyyat Akçil, who also wanted to go to Diyarbakır. The Hazro gendarme commander gave them permission and told them to deliver a car 21AF989. They met Ömer Güngör after taking the car and he joined them. In Diyarbakır they reported to Saraykapı gendarme command but kept the car. They used it for shopping and also to help anti-terror police to apprehend four suspects (Fatih Çelebi, Yılmaz Eken, Hanefi Ekici and Çelebi Akkus), whom they were to take back to Hazro. That night they stayed in the Saraykapı guesthouse for village guards. On 22 April, they went to the shopping district in the car. Ömer Güngör pointed out the Avşar shop and said that Mehmet Şerif Avşar was in contact with the PKK and might know where the PKK had buried the body of his murdered elder brother. He suggested that they apprehend him and take him along with the others. Mehmet Mehmetoğlu, whom they knew before, came up and went with them to the shop. 58. As the village guards did not know Mehmet Şerif Avşar, they said that one of the Avşar brothers had to come to Saraykapı to make a statement for their brother Abdulkerim. When they objected, the suspect went outside to call the police. However Mehmet Mehmetoğlu who had been outside, came in and tried to convince them. There was an argument. With threats and persuasion, they took Mehmet Şerif Avşar away. The suspect thought they were going to take him to be detained with the other four suspects. Mehmet Mehmetoğlu, Aziz Erbey and himself left in a taxi, while the others left in the white Toros car. Mehmet Mehmetoğlu got off at the Post Office. He and Aziz Erbey got out in front of the judiciary building, where the white car also arrived. Ömer Güngör said that Mehmet Şerif Avşar had agreed to go to Lice. They all got into the car and started towards Lice. After a while, some of the village guards doubted that they had the authority to go to Lice and recalled that they were to deliver the car. They decided to go back and hire two cars so Ömer Güngör could go on to Lice. They left Ömer Güngör and Mehmet Şerif Avşar by some ruined buildings. They could not find any cars. When they went back, they found Ömer Güngör crying by the roadside. He said that he had accidentally shot Mehmet Şerif Avşar. They panicked and drove back to Diyarbakır. They left the four suspects with the soldiers who came in the convoy from Hazro and made an excuse to leave. They deposited the car 21AF989 somewhere near the Hazro gendarmerie and returned to their villages. 59. He had not wanted the incident to end as it did. No official authority had ordered them to apprehend Mehmet Şerif Avşar. He acknowledged that the licensed gun found at his address was his and that he carried it during the abduction. 60. The suspect was asked to submit his defence to the charge that he, along with six friends, had kidnapped Mehmet Şerif Avşar. 61. The suspect said that on 21 April 1994 when he went to Hazro district gendarmerie to get permission to go to Diyarbakır for personal reasons, he met fellow village guards Feyzi Gökçen, Yaşar Günbatı and Zeyyat Akçil, who also wanted to go to Diyarbakır. The Hazro gendarme commander gave them permission and told them to deliver a car 21AF989. They met Ömer Güngör after taking the car and he joined them. In Diyarbakır they reported to Saraykapı gendarme command but kept the car. They went shopping and also helped anti-terror police to apprehend four suspects, whom they were to take back to Hazro. That night they stayed in the Saraykapı guesthouse for village guards, as well as guarding the suspects. On 22 April, they went to the shopping district again. Ömer Güngör pointed out the Avşar shop. He said that Mehmet Şerif Avşar was connected with the terrorists and might know where the PKK had buried the body of his murdered elder brother. He suggested that they apprehend him and send him for interrogation. Mehmet Mehmetoğlu, who had previously been in the PKK, came up and agreed to help them apprehend Mehmet Şerif Avşar. 62. The six men – no-one else was involved – went to the shop, introducing themselves. As they did not know Mehmet Şerif Avşar, they said that any one of the brothers should come. Mehmet Mehmetoğlu, Feyzi Gökçen and himself left in a taxi, while the others left in the white Toros car. Mehmet Mehmetoğlu got off at the Post Office. He and Aziz Erbey got out in front of the judiciary building, where the white car also arrived. Ömer Güngör said that Mehmet Şerif Avşar had agreed to go to Lice to help to find his brother’s body. They all got into the car and started towards Lice. After a while, some of the village guards thought this might be dangerous and remembered that they had no permission to go to Lice. They decided to go back and hire two cars so Ömer Güngör could go on to Lice. They left Ömer Güngör and Mehmet Şerif Avşar by some ruined buildings. They could not find any cars. When they went back, they found Ömer Güngör in a sad state. He said that he had accidentally shot Mehmet Şerif Avşar, who had attempted to run away and attack him. They panicked and drove back to Diyarbakır. They handed over the four suspects to the soldiers who came in the convoy from Hazro and made an excuse to leave. They deposited the car 21AF989 somewhere near the Hazro gendarmerie and returned to their villages. 63. He had thought Mehmet Şerif Avşar was going to be handed over for proceedings. No official had ordered them to apprehend Mehmet Şerif Avşar. He acknowledged that the licensed gun found at his address was his and that he was carrying it during the abduction. 64. The suspect was asked to submit his defence to the charge that he, along with six friends, had kidnapped Mehmet Şerif Avşar. 65. The suspect said that on 21 April 1994 he and fellow village guards Feyzi Gökçen, Yaşar Günbatı and Aziz Erbey were given a car by Hazro gendarme commander to deliver to Diyarbakır. Ömer Güngör joined them. In Diyarbakır they reported to Saraykapı gendarme command but kept the car. They went shopping and also helped anti-terror police to apprehend four suspects, involved in incidents in Hazro district, whom they were to take back to Hazro. He named the four suspects. That night they stayed in the Saraykapı guesthouse for village guards. On 22 April, they went to the shopping district again. Ömer Güngör pointed out the Avşar shop. He said that Mehmet Şerif Avşar was connected with the terrorists and that if they apprehended him, he might be able to find the body of his brother. They met Mehmet Mehmetoğlu, whom they knew from Hazro and he came with them. They apprehended Mehmet Şerif Avşar as shown in the reconstruction. 66. The suspect, Ömer Güngör and Yaşar Günbatı were in the Toros car with Mehmet Şerif Avşar. Ömer Güngör told Mehmet Şerif Avşar that he would be interrogated to disclose where his brother was buried. Mehmet Şerif Avşar proposed that they did not take him for interrogation and offered to help Ömer Güngör find the body in Lice. Ömer Güngör suggested that he should go to Lice with Mehmet Şerif Avşar. They arrived in front of the judiciary building, where Aziz Erbey and Feyzi Gökçen arrived in a taxi. They all got into the Toros car and started towards Lice. After a while, some of the village guards thought this might be dangerous and remembered that they had no permission to go to Lice. They decided to go back and hire two cars so Ömer Güngör could go on to Lice. They left Ömer Güngör and Mehmet Şerif Avşar by some ruined buildings. They could not find any cars. When they went back, they found Ömer Güngör crying by the road. He said that he had accidentally shot Mehmet Şerif Avşar. They panicked and drove back to Diyarbakır. They handed over the four suspects to the soldiers who came in the convoy from Hazro and made an excuse to leave. They deposited the car 21AF989 somewhere near the Hazro gendarmerie and returned to their villages. 67. He had thought Mehmet Şerif Avşar was going to be handed over to the gendarmerie. No official authority had ordered them to apprehend Mehmet Şerif Avşar. 68. The suspect was asked to submit his defence to the charge that he, along with six friends, had kidnapped Mehmet Şerif Avşar. 69. The suspect said that on 22 April 1994 he was going to the Trafik tea gardens when he met Feyzi Gökçen and Yaşar Günbatı whom he knew from Hazro. They were with three other village guards. They told him that they were on duty and were going to apprehend Mehmet Şerif Avşar. While talking, they reached the shop. A few of them entered but he did not as he was not an official. When an argument broke out, he entered and told the people that his friends were officials. The atmosphere was tense and several of the village guards took out their guns. They apprehended someone and left. He got into a taxi with Feyzi Gökçen. He got out in front of the Post Office and did not know where the others went. After a few hours, he went to Saraykapı gendarmerie to find Feyzi Gökçen but was unsuccessful. That was his only involvement with the incident. He had thought that the village guards had authority to act as they did. Otherwise he would have reported them. Inside the shop, he saw only the five guards and some shop people. 70. The suspect was asked to submit his defence to the charge that he, along with six friends, had kidnapped Mehmet Şerif Avşar. 71. The suspect said that on 21 April 1994 he went to Hazro district gendarmerie to get permission to go to Diyarbakır for personal reasons, including obtaining medical treatment. He came across Feyzi Gökçen, Aziz Erbey, Yaşar Günbatı and Zeyyat Akçil, who wanted also to go to Diyarbakır and were to deliver a car 21AF989 to Saraykapı gendarmerie. He joined them. In the car he told the others that his village Oyuklu had recently been attacked and that some of the people involved were wanted for other offences were in Diyarbakır. After a discussion, they decided it would be appropriate to apprehend those individuals and hand them over to Hazro or Diyarbakır security people. In Diyarbakır they reported to Saraykapı gendarme command. They went to the Security Directorate and explained that they knew where to find certain individuals connected with the terrorists. They went along with police teams and apprehended the four individuals. The village guards took delivery of them in order to take them back to Hazro. That night they stayed in the Saraykapı guesthouse for village guards. On 22 April, they went to the shopping district in the white car. They met Mehmet Mehmetoğlu, who was known to some of the village guards. 72. The suspect, who had lost members of his family to the PKK and was himself disabled due to injuries caused by the PKK, had discovered that Abdulkerim Avşar was the leader of the group who kidnapped and killed his elder brother. The Avşar family was also in contact with the PKK, especially Mehmet Şerif Avşar who met with the terrorists in Lice. He learned the address of the Avşar business premises and explaining the situation to his friends, proposed to apprehend Mehmet Şerif Avşar. The six of them entered the shop at about 11.30 hours. They introduced themselves as security officials and when an argument broke out, drew their guns. He, Yaşar Günbatı, Zeyyat Akçil and Mehmet Şerif Avşar got into the white car while the others caught a taxi. While taking Mehmet Şerif Avşar to Saraykapı gendarme command, the suspect told Mehmet Şerif Avşar that he had to help locate his brother’s body or they would hand him over to the court. Mehmet Şerif Avşar pleaded not to be handed over and offered to go to Lice and help him. They arrived at Saraykapı as did the other guards. Mehmet Mehmetoğlu had already got out at the Post Office. They all got into the white car and started towards Lice. After a while, some of the village guards said that they would be late returning to Hazro and decided to go back and hire two cars so the suspect could go onto Lice. They left the suspect and Mehmet Şerif Avşar, who was blindfolded, by some ruined buildings. They talked. Then Mehmet Şerif Avşar tried to attack him and run away. The suspect, alone and disabled, fired a few warning shots from his Browning pistol. Mehmet Şerif Avşar fell down covered in blood. The suspect panicked and ran away to the road, in tears. When his friends returned, he told them an accident had happened. They drove back to Diyarbakır, the suspect stopping to throw the gun into the river. They handed over the four suspects to the convoy from Hazro and made an excuse to leave. They deposited the car 21AF989 somewhere near the Hazro gendarmerie and returned to their villages. 73. He had had no intention of killing Mehmet Şerif Avşar who was going to be handed over for proceedings. There was no official present at the shop other than his five friends. No official had ordered them to apprehend Mehmet Şerif Avşar. 74. As a result of the interrogations of the six suspects, it appeared that Mehmet Şerif Avşar had been taken to a ruined building about 19 km away on the Silvan Road. The gendarmes sent out a team to the location. According to Ömer Güngör, the incident had taken place in front of the south-facing door. A barely visible bloodstain 30 cm in diameter was found on the doorstep. The victim was not there however, nor did a search disclose any empty cartridges. The victim was found 50 metres to the south, half buried in water in a field, putrefying, with the face unidentifiable. No marks or evidence were found in the vicinity and it was not possible to tell whether he had been killed on the spot or brought there afterwards. Photographs were taken. 75. Ömer Güngör indicated the place at the old dynamite depot, 55 metres south of the 19th kilometre point on the Diyarbakır-Silvan road, where he had been left with Mehmet Şerif Avşar. The two men had sat on a wall and were talking, when Mehmet Şerif Avşar attacked him and tried to escape. He fired two shots with his pistol. He indicated the spot. At the entrance of the building some dried blood was observed. Mehmet Şerif Avşar had fallen on the ground but he did not know if the man was injured or dead as he panicked and ran away. When showed the body lying in the field, 50 metres south of the building, he could not remember the clothing but it was possible that it was Mehmet Şerif Avşar’s body. He showed where he threw the gun into the Dicle river. 76. The body was identified by Mehmet Ali Avşar as being Mehmet Şerif Avşar. There was a bullet entry to the right temporal region, with an exit wound to left frontal region, and one bullet entry below the left ear and an exit hole on the left cheek bone. Due to absence of burns or soot, both bullets had been shot at a distance. No other injury from physical violence was observed. It was concluded that death occurred from the bullet wounds, either of which would have been fatal, about 10 to 20 days before. 77. This stated that car, no. 21T1127, had not been found. It belonged to Erdal Açikgöz, resident in İstanbul. 78. This letter enclosed the investigation documents and concluded that the six men had admitted their guilt in respect of abducting Mehmet Şerif Avşar and that Ömer Güngör had admitted that he had killed him. 79. On 21 April, the Hazro gendarme commander had appointed the four village guards to apprehend four individuals. They set out in car 21AF989 to go to Diyarbakır and met Ömer Güngör, who joined them. They finished their task in Diyarbakır and stayed in the guest house. On 22 April, the five men went shopping. Ömer Güngör pointed out a shop and said that they should apprehend someone there and take him to the gendarmes. Ömer Güngör went inside the shop and talked to Mehmet Şerif Avşar, who did not want to come. The suspect and others went into the shop. When Mehmet Şerif Avşar would not go unless the police came, he and Feyzi Gökçen went outside to look for the police. Feyzi Gökçen met someone called Mehmet Mehmetoğlu and they went back into the shop. The suspect told the elder brother that they were taking Mehmet Şerif Avşar to the gendarmerie and they could follow. They got into two cars and arrived in front of the gendarmerie. Ömer Güngör told Yaşar Günbatı that they should take the victim to Lice and not into the gendarmerie. They started out towards Lice. Talking amongst themselves, they thought they might have problems going to Lice without permission and decided to go back. Ömer Güngör and Mehmet Şerif Avşar got out to wait for them to return with two cars, one for them to go onto Lice. The village guards were unable to find any cabs willing to come back with them. They returned to the spot to find Ömer Güngör crying. Mehmet Şerif Avşar had attacked him while they were talking and he had shot him. 80. They returned to the gendarmerie. Ömer Güngör begged them not to hand him over. They felt sorry for him. Without returning the car, they went back to Hazro and from there to their homes. The suspect had had a gun on him in the shop but did not draw it. No-one drew their guns. 81. On the day of the incident, he was going to the Trafik tea gardens to meet friends when he met Feyzi Gökçen whom he knew. Feyzi Gökçen told him that they were going to apprehend someone in the shop nearby. When they arrived in front of the shop, he saw 8-10 people having an argument. Two village guards were pointing their weapons. The shop people refused to let anyone go without the police. The village guards said that they were officials and would take them to the gendarmerie. The suspect told Feyzi Gökçen that they could call the police. At this point, two village guards took a man outside and got into a white Toros car. He, Feyzi Gökçen and Aziz Erbey got into a cab. He got out near a bakers. He was shocked by the incident. When he came to the gendarmerie two to three hours later, he asked the sergeant at the checkpoint if the Hazro guards had brought some-one in. He was told that the village guards had brought in four men earlier but none since. 82. The suspect went to Elazığ and was called by the gendarmerie to take part in an identification parade, where no-one recognised him. He took part in the reconstruction but in fact he had not helped take out the victim as was shown in the photographs. He had only been there because he believed that the guards would hand the man over to the gendarmes. 83. On 21 April, the Hazro gendarme commander had appointed the four village guards to apprehend four individuals. They took Ömer Güngör with them. They apprehended the four men and delivered them to the gendarmerie. On 22 April, the five village guards wandered round the shopping district. Ömer Güngör pointed out a shop and said that they should apprehend someone there and take him to the gendarmes. The suspect stood outside while the other four went inside. Ömer Güngör told a man that he had to come. There were three or four other people present. They argued, saying no-one would go unless the police came. The suspect walked off about 30 metres looking for the police. He met Mehmet Mehmetoğlu, who said that he would see to the situation and walked into the shop. The suspect stayed outside and heard nothing. Shortly after, the guards came outside with Mehmet Şerif Avşar. Yaşar Günbatı, Ömer Güngör, Zeyyat Akçil and Mehmet Şerif Avşar got into the car to go to Saraykapı gendarmerie. Aziz Erbey, Mehmet Mehmetoğlu and himself got into a cab. Mehmet Mehmetoğlu got out on the way. When they arrived by the fountain, Yaşar Günbatı told Ömer Güngör that they would go to Lice. They started out towards Lice. Talking amongst themselves, they thought they might have problems going to Lice without permission and decided to go back. Ömer Güngör and Mehmet Şerif Avşar were to wait by an old building for them to return with two cars, so that they could continue to Lice. They were unable to find any cabs willing to come back with them. They returned to the spot to find Ömer Güngör crying. Mehmet Şerif Avşar had attacked him while they were talking and he had shot and killed him. 84. They returned to the gendarmerie. Without returning the car, they went back to Hazro and from there to their homes. The suspect had had a gun on him in the shop but did not draw it. Ömer Güngör had told them that his uncles and brother were killed by the PKK and that Mehmet Şerif Avşar had a relationship with the PKK and might know where his brother’s body was buried. Their initial idea however had been to hand Mehmet Şerif Avşar over to the gendarmerie. 85. On 21 April, he and three others were setting out from Hazro to Diyarbakır to apprehend four individuals. They met Ömer Güngör, who joined them. All five went to the Security Directorate and with police teams took the four men and delivered them to the provincial gendarmerie. They stayed in the guest house. On 22 April, the five village guards went shopping. Ömer Güngör pointed out a shop and said that they should apprehend someone there and take him to the gendarmes. Ömer Güngör went inside the shop but the man would not come. The suspect and Aziz Erbey went inside, saying that they were guards and that he should come to the gendarmerie. He refused to go unless the police came. The suspect agreed. Feyzi Gökçen and Aziz Erbey went to look for the police. They came back with Mehmet Mehmetoğlu who spoke to the man. They told the people to come to the gendarmerie and took the man out by the arms, putting him in the car. The suspect drove the car which also contained Ömer Güngör and Zeyyat Akçil. The others followed in a taxi. 86. They arrived at the fountain next to the gendarmerie. Mehmet Mehmetoğlu was no longer there. Ömer Güngör said that they should go to Lice and hand him over there. As Ömer Güngör was a Lice guard, they thought it must be a Lice matter. They started out towards Lice. Talking amongst themselves, they thought they might have problems going to Lice without permission and changed their minds. Ömer Güngör and Mehmet Şerif Avşar stayed at an old building while they went to look for two cars, so that they could go on to Lice. They were unable to find any cabs willing to come back with them. They returned to the spot to find Ömer Güngör crying. Mehmet Şerif Avşar had attacked him while they were talking and he had fired two shots, killing him. Angry, they intended to take Ömer Güngör back to the gendarmerie. When they got there, Ömer Güngör begged them not to hand him over, referring to his uncles and brother being shot by the PKK. They were in a panic but agreed to keep quiet. They went back to Hazro and from there to their homes. They had only taken Mehmet Şerif Avşar away as Ömer Güngör had claimed that he would be handed over to the gendarmerie. 87. The suspect said that on 21 April 1994 he met Feyzi Gökçen, Aziz Erbey, Yaşar Günbatı and Zeyyat Akçil, who were going to Diyarbakır. He joined them as he wanted to go to hospital. In Diyarbakır, they helped apprehend some people and handed them over to the provincial gendarmerie. On 22 April, they went to the shopping district. At that stage, Mehmet Şerif Avşar came into his mind. In 1992, his brother had been kidnapped by the PKK and though he was dead, his body had not been found. As Mehmet Şerif Avşar had connections with the PKK in Lice, he thought he might know the location of the body. He proposed to the others that they should apprehend Mehmet Şerif Avşar. The five of them entered the shop. Mehmet Şerif Avşar refused to come without the police. Feyzi Gökçen went to look for the police. He came back with Mehmet Mehmetoğlu, who spoke to Mehmet Şerif Avşar. Mehmet Şerif Avşar agreed to come. They all went in cars to the front of the gendarmerie, except Mehmet Mehmetoğlu. In the car, the suspect talked about his brother with Mehmet Şerif Avşar and asked his help. Mehmet Şerif Avşar said that if they did not hand him over, he would help the suspect find the body at Lice. The suspect asked the other village guards to take him to Lice. 88. They started towards Lice. After a while, some of the guards said that they had no permission and decided to go back. Mehmet Şerif Avşar proposed getting out to wait for the others to send back a car. Mehmet Şerif Avşar and the suspect entered the old building and sat down. After a while, Mehmet Şerif Avşar said that he wanted to go outside. The suspect refused to let him. Mehmet Şerif Avşar ran at him, making threats. The suspect drew his gun, pointed it at the man’s head and fired. After firing, the suspect ran away without looking back. When his friends returned, he told them an accident had happened. They drove back to Diyarbakır, the suspect stopping to throw the gun into the river. The others were angry and he pleaded not to be handed over. They felt sorry for him and went back to Hazro. 89. On 21 April, the Hazro gendarme commander had appointed the four village guards to apprehend some individuals in Diyarbakır and to take the car 21AF989 to the provincial central gendarmerie. They met Ömer Güngör, who joined them. They went to the anti-terror police and apprehended the four named individuals, handing them over to the provincial gendarmes. On 22 April, the five village guards went shopping. Ömer Güngör pointed out a shop and said that they should apprehend someone there and take him to the gendarmes. Ömer Güngör went inside the shop, followed by the others. He talked to a man, who did not believe them and would not go unless the police came. Feyzi Gökçen went outside to look for the police, returning with Mehmet Mehmetoğlu, who said that they were village guards on duty. The village guards took the man by the arm and put him in the car. They arrived in front of the gendarmerie. Ömer Güngör told the others that the man had agreed to go with him to Lice. The others thought they would hand him over to the gendarmerie at Lice. On the way, they thought they might have problems going to Lice without permission and decided to go back. Ömer Güngör and Mehmet Şerif Avşar were to wait for them to return with two cars, one for them to go onto Lice. They were unable to find any cabs willing to come back with them. They returned to the spot to find Ömer Güngör crying. Mehmet Şerif Avşar had attacked him while they were talking and he had fired two shots at him. 90. They returned to the gendarmerie. Ömer Güngör begged them not to hand him over. They felt sorry for him. They delivered the car to the station at Hazro and went home. 91. The six accused appeared. All gave statements (those of Ömer Güngör and Feyzi Gökçen were illegible in the copy provided by the Government). 92. Yaşar Günbatı confirmed his statements to the gendarmes and the public prosecutor. Ömer Güngör had told them that Mehmet Şerif Avşar had information about the body of his brother. They took him from his shop to take to the gendarmerie but changed their minds and went towards Lice. They left the victim with Ömer and when they came back found that Ömer had killed him. 93. Aziz Erbey confirmed his previous statements. They took Mehmet Şerif Avşar in order to find information about Ömer’s brother. They had left him with Ömer on the road to Lice and Ömer had killed him. 94. Zeyyat Akçil confirmed his previous statements. They had taken Mehmet Şerif Avşar to find out information with the intention of handing him over to the gendarmerie. They had changed their minds and Ömer had killed him when they left them on the road to Lice. 95. Mehmet Mehmetoğlu confirmed his previous statements. He had come across the five others by chance and had been told that they were taking Mehmet Şerif Avşar to the gendarmerie. He had gone into the shop with Feyzi Gökçen. After leaving the shop in a taxi, he got off at the Post Office and knew nothing more about the incident. He had not introduced himself as an official in the shop. He had only said that the others were officials. 96. The court decided that the six accused should be arrested and charged with the murder of Mehmet Şerif Avşar and the aiding and abetting of murder. 97. The indictment listed Mehmet Sait Avşar, Mehmet Ali Avşar and Abdullah Avşar as complainants and identified Ömer Güngör, Feyzi Gökçen, Yaşar Günbatı, Zeyyat Akçil, Aziz Erbey and Mehmet Mehmetoğlu as having committed the offence of murder and conspiracy in respect of Mehmet Şerif Avşar. It concluded that the four village guards had been instructed by the Hazro gendarme commander to go to Diyarbakır to apprehend certain suspects in the car 21AF989 which was to be delivered to the provincial gendarme command. On their way, they met the fifth guard Ömer Güngör, who joined them. They handed over the suspects to the provincial gendarmerie and the next day went shopping. Ömer Güngör told them that Mehmet Şerif Avşar had a brother in prison for being in the PKK and that his own brother had been killed by the PKK but they had not found the body. He suggested that if they took Mehmet Şerif Avşar, who had a relationship with the PKK, the gendarmes could interrogate him to find where the body was. The others agreed and went to the Avşar business premises. They introduced themselves as security officials and were going to take Mehmet Şerif Avşar to the gendarmerie. An argument broke out, the shop people requesting that the police be brought. Feyzi Gökçen went to look for the police. He met Mehmet Mehmetoğlu, who came back, introducing himself as a security officer. When there was still resistance, they drew their guns, took Mehmet Şerif Avşar by the arms and put him into the Toros car. The guards arrived in front of the gendarmerie. Mehmet Mehmetoğlu had got out earlier. Ömer Güngör told the others that he was going to hand over the victim in Lice and that the victim would help find the body. They set out for Lice. However the other four village guards said that they had no permission to go to Lice and decided to go back. Ömer Güngör suggested that he and Mehmet Şerif Avşar wait by a ruined building and that the others bring back a car for them to go on to Lice. After the others left, Ömer Güngör argued with Mehmet Şerif Avşar. He drew his gun and fired several times, before running away. When the others came back, they drove Ömer Güngör to Diyarbakır. He threw his gun in the river. They returned together to Hazro, leaving the car in the gendarmerie yard. Mehmet Şerif Avşar’s body was later found and an autopsy disclosed that he had two bullet wounds to the head. 98. According to the evidence, the accused had taken the victim without any instruction from any authority. They had used force and threats. Ömer Güngör had believed that the victim had connections with the PKK and wanted revenge. He took the victim to an isolated spot with the agreement and collaboration of the others, murdered and abandoned the body. He had therefore committed premeditated murder. 99. The court ordered the continued detention of the six accused, that the complainants to be informed of the proceedings and the summoning of witnesses: Ali Güngör, Kasım Saka, Resit Demirbas, Ismail Kahraman, Huseyin Erkuş, Zeydin Colak, Ismail Erkuş, Ali Sancar and Abdi Koyun. 100. The six accused made statements to the court in response to the indictment. 101. Ömer Güngör stated that when he came to Hazro he found that his four friends Feyzi Gökçen, Yaşar Günbatı, Zeyyat Akçil and Aziz Erbey were appointed by the Hazro gendarmes to go to Diyarbakır to detain some suspects. He joined them. In Diyarbakır, they met Captain Mithat Gül at the central gendarmerie, who sent them to the Anti-Terror Department. They detained four persons with police teams and handed them over to the gendarmerie. At this time, he had the idea of locating the body of his brother Mustafa, who had been killed on 8 August 1992. Mehmet Şerif Avşar was known to have been involved in village raids and he thought he might have information about his brother. He had also been injured in a clash himself. They went to the Avşar premises in the car brought from Hazro. The accused told Mehmet Şerif Avşar that they were the police and he had to come to make a statement. Avşar resisted and said he wanted the police. Feyzi Gökçen and Aziz Erbey went outside to find the police. They came back with someone he later learned was Mehmet Mehmetoğlu. He told them that he was a police officer and showed them an ID. He had another person with him whose name he did not know. Mehmet Şerif Avşar was taken in a car by Mehmet Mehmetoğlu, the unknown friend, the accused, Yaşar Günbatı and Zeyyat Akçil. In front of the gendarmerie, Mehmet Mehmetoğlu and his friend said that they would take Mehmet Şerif Avşar to be interrogated. They drove off. They stopped at a ruined building on the Lice road. Mehmet Mehmetoğlu and his friend took the victim inside. He and Feyzi Gökçen waited by the car. He did not know what was talked about but he did hear mention of some 3 billion Turkish lira (TRL). Sometime later, Mehmet Mehmetoğlu came and told him to shoot Mehmet Şerif Avşar. He did so. When they arrived back in Diyarbakır, he gave Mehmet Mehmetoğlu his gun. Mehmet Mehmetoğlu was driving. The other man wore glasses. 102. The accused was asked to explain the contradictions in this account compared with the other statements. He said that this statement was correct and the other ones were untrue. He had made his statement to the court on 10 May 1994 as he was scared of being tortured at the gendarmerie. In answer to questions, he said that as village guards they had been given the authority and duty to apprehend those they knew to be criminals and hand them over to the gendarmes or police, even outside their own villages. He was therefore empowered to apprehend Mehmet Şerif Avşar and hand him over to the authorities. It was what they did in apprehending four suspects the day before. 103. Feyzi Gökçen said as follows. He and the others had been sent to Diyarbakır to apprehend some individuals and hand them over to the Diyarbakır gendarmes. They had gone to the Avşar shop because Ömer Güngör said Mehmet Şerif Avşar might know where his brother was buried. Mehmet Şerif Avşar refused to go without the police. The accused and Aziz Erbey went outside to bring the police. After 30 metres, they met Mehmet Mehmetoğlu, with a man wearing glasses, whom he did not know. They entered the shop and showed their IDs. Mehmet Şerif Avşar then came with them in the Toros car. The accused, Mehmet Mehmetoğlu’s friend, who was introduced as “Müdür” (director) and Aziz Erbey got into a taxi. At the gendarmerie, he joined Ömer Güngör, Mehmet Mehmetoğlu, Müdür and Mehmet Şerif Avşar in the car, which Mehmet Mehmetoğlu drove to a ruin on the Lice Road. He remained near the car. He could hear Mehmet Mehmetoğlu asking the victim about the PKK. A sum of 3 billion lira was mentioned. He heard nothing about Ömer’s brother. There were two gun shots. He saw Ömer come out with a pistol and bloodstains on his trouser legs. Mehmet Mehmetoğlu said Ömer had killed the victim. On the way back to Diyarbakır they were stopped by the police. Mehmet Mehmetoğlu’s friend showed his ID. There was some mention about the number plate of the car and that the car should be held. Mehmet Mehmetoğlu drove on anyway and they arrived at the Saraykapı gendarmerie. The police arrived later looking for the car but did not find it. Captain Gul asked what had happened but the accused said that he did not know anything and should ask Mehmet Mehmetoğlu. When the incident was discovered, someone whom he did not know told him what he should say in the preliminary investigation. 104. Yaşar Günbatı said as follows. He and his three friends were going to Diyarbakır to apprehend four suspects. Ömer Güngör joined them as they were leaving Hazro in the white Toros. He said he was going for a medical report. In Diyarbakır they carried out an operation with security officials. They found three of the suspects, handing them over to the gendarmes. They found the fourth, Fatih Celik, the next day and handed him over. Ömer Güngör told them at this stage that Mehmet Şerif Avşar was to be apprehended due to his connection with the PKK. They went to his shop. They told him that they were village guards but he refused to come unless police were present. Feyzi Gökçen and Aziz Erbey went to look for a police officer. Five minutes later, they returned with Mehmet Mehmetoğlu and another person, wearing glasses and speaking proper Turkish. That person showed his ID to Mehmet Şerif Avşar saying that he was the police. Mehmet Şerif Avşar agreed to come and was put into the car. Aziz Erbey, Feyzi Gökçen and the man called the Director got into a taxi. They all arrived in front of the gendarmerie. The accused, Aziz Erbey and Zeyyat Akçil stayed at the gendarmerie while the others went off at about 13.00-13.30 hours. A few minutes later, the police arrived. The individuals from the shop might have been with them. Police asked Zeyyat Akçil where the white Toros had gone. The accused told the police that Mehmet Şerif Avşar had been taken for questioning. The police officers left. They handed over the four suspects to the Hazro convoy. Ömer Güngör and the others returned after an hour. Mehmet Mehmetoğlu told him to remove the number plates from the car. He handed them to Captain Mithat Gül. He saw the captain talking to the police. Mehmet Mehmetoğlu and the man with glasses disappeared at about that time. Growing suspicious, the accused asked Ömer Güngör what had happened. Ömer Güngör said that he had accidentally shot Mehmet Şerif Avşar. He stated that the previous statements were not correct and that he could not explain why. 105. Aziz Erbey said as follows: They caught three suspects in Diyarbakır on the first day and stayed on the next day to catch the fourth. They caught Fatih Çelik and handed him over to the gendarmes. Ömer Güngör then told them that Mehmet Şerif Avşar was in touch with the PKK and might know where his brother was buried, so he should be taken for questioning. They went to the shop and Ömer Güngör told Mehmet Şerif Avşar that he had to come for questioning. Mehmet Şerif Avşar refused. Feyzi Gökçen and the accused went to find a police officer. Feyzi Gökçen met Mehmet Mehmetoğlu, who was with another man and who said that there was no need for the police. They went into the shop. Mehmet Mehmetoğlu talked to Mehmet Şerif Avşar and the man with glasses showed his wallet to him. Mehmet Şerif Avşar agreed to come and got into the Toros car. The accused got into another car with the man with glasses. Later, he saw Mehmet Şerif Avşar, Ömer Güngör, Mehmet Mehmetoğlu, Feyzi Gökçen and the man with glasses go off in the Toros car. Mehmet Mehmetoğlu was driving. They returned after an hour. The police arrived and asked Zeyyat Akçil where the Toros car was. His present statement was true. At the gendarmerie, they wrote the statements and he signed. They prepared the statements probably to protect the man with glasses. 106. Zeyyat Akçil said that he did not accept his previous statements. He knew only what Aziz Erbey and Yaşar Günbatı had said. 107. Mehmet Mehmetoğlu said that he repeated his previous statements. He had no friend wearing glasses. His hand was disabled due to a cut above the wrist. He was unable to use his right hand and anyway did not know how to drive. He had gone into the shop with Feyzi Gökçen to help them as they were village guards. He told Mehmet Şerif Avşar that the men were officials, that he would be taken to the gendarmerie and nothing abnormal would happen. Mehmet Şerif Avşar agreed to go with them. The accused got into the taxi with Feyzi Gökçen and Aziz Erbey but got off at a bakers’ near the post office. He did not tell anyone that he was a police officer. He played no part in the murder. 108. The court heard from witnesses from Ömer Güngör’s village who maintained their previous statements and Abdi Koyun the owner of the Toros car. The minutes noted that Ömer Güngör was limping with his left foot and that Mehmet Mehmetoğlu’s arm had a deep cut above the right wrist. 109. The court ordered, inter alia, that it should be established whether the accused were village guards; whether Mehmet Mehmetoğlu had any form of identification from the gendarmerie; that an instruction warrant be issued to establish whether Hazro gendarme command appointed village guards to apprehend persons outside the village; that a rogatory letter be sent to Hazro for a statement to be taken from Lieutenant Ertan Altınoluk; that Mithat Gül be summoned to give evidence; and that the hospital medical file concerning Mehmet Mehmetoğlu be provided. 110. He stated as follows. Mehmet Koyun had been apprehended and sent to the provincial gendarmerie for interrogation. On 21 April 1994, he gave Koyun’s car to Yaşar Günbatı, Feyzi Gökçen, Aziz Erbey and Zeyyat Akçil to be delivered to the provincial central gendarmerie for safekeeping until the owner was referred to court. On 23 April, the car was seen back in the grounds of the gendarmerie. On investigation, the guards claimed that they had brought it back as the Diyarbakır gendarmerie was very crowded and they could not find an officer. They came back with the convoy after two days. He knew nothing of the incident until the provincial central gendarme command telephoned to ask him about the village guards. 111. A petition from Feyzi Gökçen was read out. The court ordered, inter alia, that sufficient time be allocated to establishing the identity of the specialist sergeant referred to in the petition. 112. The accused wished to add a further point to his statement to the court. A gendarme special sergeant, whose name he did not know, had been involved in taking in Mehmet Şerif Avşar. He had been transferred from Diyarbakır within a month of 10 May 1994. The sergeant told the accused that he and Mehmet Mehmetoğlu were going to interrogate Mehmet Şerif Avşar and later take him back to the provincial gendarmerie. He told the accused to wait by the car while they interrogated him. The accused did not realise that they were going to kill him. 113. Ömer Güngör addressed the court, stating that he had no intention to kill the deceased but only did so because the specialist sergeant told him to. The court ordered, inter alia, for the summons for Mithat Gül to be renewed. 114. The defence counsel requested the hearing of the driver of the car 21T1127 who had seen the seventh man and also Ferit Aka, another village guard who had been with the accused in Diyarbakır. The court ordered the public prosecutor to locate the witnesses and resummon Mithat Gül. 115. Defence counsel submitted that a JITEM officer had been involved and requested that steps be taken for him to be identified. Ömer Güngör told the court that he did not know the name of the specialist sergeant and had only learned that he was a sergeant after he was detained. The court agreed that the official’s identity should be established but did not agree to the means suggested by the defence counsel. Mithat Gül was resummoned, and summonses issued for Ferit Aka and the officials present when the accuseds’ statements were allegedly taken by force. 116. He stated that he had carried out the investigation into the incident. This had established that the accused had entered the shop. He confirmed the reconstruction and location reports as correct. No pressure was exerted on the accused. He did not know the identity of the official referred to by the witnesses. 117. Ferit Akça appeared as a witness. He confirmed meeting Zeyyat Akçil and Aziz Erbey at the Diyarbakır Security Directorate and seeing Feyzi Gökçen and Yaşar Günbatı there later. He returned with them from there to the gendarmerie at about 10-11.00 hours. He saw them returning to Hazro in the convoy later. 118. Mehmet Ali Avşar appeared as a witness. When they had refused to go with the village guards to give a statement in place of Abdulkerim, Zeyyat Akçil had left to find a police officer. He returned with two individuals (pointing to Mehmet Mehmetoğlu in the court room). He described the second man as tall, wearing sunglasses and speaking fluent Turkish. When he said that he was the police, the witness asked for his ID. He produced something which he opened and shut without the witness seeing what it was. All had weapons except Zeyyat Akçil and the seventh man. 119. Şinasi Budaklı, a gendarme NCO, gave evidence, saying that he was present when the accused made their statements. No pressure was applied on them and the contents were true. The accused made no mention of a seventh man, though the relatives of the deceased had. They were unable to establish the identity of that man. 120. Mehmet Mehmetoğlu told the court, inter alia, that persons linked with the PKK had put pressure on the others to change their story and incriminate him. 121. Counsel for the accused requested that steps be taken to identify the security official known as “müdür”. 122. The court ordered inter alia for disclosure of Mehmet Mehmetoğlu’s medical records and rejected counsel’s request concerning the official known as “müdür”. 123. This stated that the accused Mehmet Mehmetoğlu had informed the Parliamentary Investigation Commission that there had been a seventh person with them on the day of the incident. They should investigate the identity of this person and inform the prosecutor’s office. 124. This stated, inter alia, that the relatives of the deceased and witnesses had mentioned a seventh person. All accused however had clearly stated that they were not joined by anyone else. No-one answering the description given by the relatives had been found during the investigation. The search for the seventh person would continue. 125. Present when statements were taken from the six accused, the gendarme witness stated that no pressure or force was used but that they answered questions freely. 126. They confirmed their previous statements. Abdullah stated that he had identified Mehmet Mehmetoğlu as involved during the reconstruction. Mehmet Sait stated that there was another man involved and requested that he be identified and that the reasons why the accused were sent for his brother be investigated. 127. The gendarme witness was present when the body of Mehmet Şerif Avşar was discovered due to the description of the location by Ömer Güngör. They established the involvement also of five other suspects but no-one else. They had investigated but failed to identify the person described by the brothers of the deceased. 128. Şinası Budaklı attended as a witness. He stated that he had taken part in the investigation under Captain Gül. The relatives told them of a person involved in addition to the village guards. They were asked to describe him. During the confrontation and identity parades and in making their statements, the accused had however made no mention of such a man. 129. Counsel for some of the accused stated that the unidentified person was present in the gendarmerie during the interrogation and it was inconceivable that he was not known or found. 130. Mehmet Mehmetoğlu repeated his assertion that he was unable to drive at the time of the incident as his arm was injured and in plaster. 131. A medical doctor was heard as a witness concerning Mehmet Mehmetoğlu. He had examined the hospital records concerning treatment given for a cut to Mehmet Mehmetoğlu’s right arm on 17 February 1994 and gave the opinion that he would have been unable to turn keys in a car ignition or make the movements necessary to drive with facility two months and five days later. There was no record that plaster had been applied. 132. Yaşar Günbatı stated that Mehmet Mehmetoğlu did know how to drive and used to come to their village driving a car many times. Mehmet Mehmetoğlu stated that it was his father who drove and he did not know how. 133. Counsel for the interveners (family) rejected the previous medical evidence concerning Mehmet Mehmetoğlu and submitted their own expert opinion. Counsel made further submissions, rejecting the alleged motivation of personal revenge for the killing, referring to the traces of ill-treatment found on the body of Mehmet Şerif Avşar. She stated there was an intention to intimidate the family of the deceased. Abdulkerim Avşar, in prison for PKK offences, had been asked to become a confessor and had refused, since they wanted him to commit murders. The abduction of Mehmet Şerif Avşar was intended to put pressure on him. The involvement of an unidentified person raised the suspicion that it was a murder involving an organised group of people enjoying State support and that officials were obstructing the investigation. 134. The public prosecutor made submissions on the merits of the case. It was clear from the file and evidence that the Hazro district gendarme commander sent four village guards to Diyarbakır to apprehend four suspects. They took Ömer Güngör with them. They stayed overnight, looking for a remaining suspect the next day. Ömer Güngör believed that Mehmet Şerif Avşar knew the place where his brother and uncle were buried and at 11.00 hours took the others to the Avşar business premises, which had been shown to him by Ferit Akça. While Ferit and Ömer Güngör stayed by the car, the others went in and said that they were police officers and that Mehmet Şerif Avşar was wanted to give a statement in the Saraykapı court buildings. When there was resistance, the accused Zeyyat Akçil went out to find a police officer and returned with the confessor, Mehmet Mehmetoğlu, and an unidentified person. He introduced himself as a police officer and flashed an identity card. When the deceased resisted, they pulled their guns, and that caused him to go along with them. They all went together to the gendarme command in Saraykapı. The man described as the “spectacled director”, Mehmet Mehmetoğlu, Feyzi Gökçen and Ömer Güngör took Mehmet Şerif Avşar in the white car to a ruined building for interrogation. Feyzi Gökçen stayed by the car. Following a talk inside the building, Mehmet Mehmetoğlu and the director walked out. Ömer Güngör went inside and shot Mehmet Şerif Avşar with two bullets in the head. The motivation for this incident – whether money, or revenge – was unclear. However none of the accused knew that Mehmet Şerif Avşar was going to be killed, including Ömer Güngör. It was more probable that Mehmet Şerif Avşar was there only for interrogation. All the accused had restricted the liberty of the victim. While Ömer Güngör carried out the killing, deliberately and unpremeditatedly committing a crime under Art. 448 of the TPC, there was no information that the others knowingly took part in, or facilitated, the killing. 135. Submissions were made by counsel representing the village guards. Mehmet Mehmetoğlu requested time to submit his defence to the public prosecutor’s pleadings. The court adjourned and granted Mehmet Mehmetoğlu further time. 136. Ömer Güngör repeated that he only killed Mehmet Şerif Avşar under pressure and threat to his own life when Mehmet Mehmetoğlu and the director had told him to do so. It had been Mehmet Mehmetoğlu who had chosen the location and driven them there. 137. Feyzi Gökçen said that Mehmet Mehmetoğlu’s arm was not plastered during the incident. He had told Captain Gül about the incident on their return. Captain Gül had been angry with Mehmet Mehmetoğlu. 138. Mehmet Mehmetoğlu claimed that the village guards were trying to incriminate him due to family enmity dating back 30 years. He also claimed the PKK were waging a campaign against him. 139. The public prosecutor proposed that the driver of the taxi who took the accused from the scene be found. The accused present were asked to describe who was in which car. 140. Feyzi Gökçen said that he, Aziz Erbey and the spectacled director were in the taxi and the others in the white Toros. Yaşar Günbatı said that he was in the Toros, with Ömer Güngör, Mehmet Mehmetoğlu, Zeyyat Akçil, the victim and Ferit Akça. Mehmet Mehmetoğlu did not get out on the way to the gendarmerie and they arrived at the judicial buildings. Aziz Erbey agreed that he, Feyzi Gökçen and the director were in the taxi. Zeyyat Akçil was in the white car with Yaşar Günbatı, Ömer Güngör, Mehmet Mehmetoğlu, Ferit Akça and the victim. The court ordered the issue of a warrant to identify the taxi driver and that a letter should be written to the provincial gendarme command to enquire as to whether a man named or nicknamed “müdür” existed. 141. The court gave, inter alia, directions concerning the location and summoning of Erdal Açikgöz, the driver of the taxi. 142. This referred to a letter from the court of 19 September 1995, enquiring whether anyone called or nicknamed “müdür” was employed at their command. No personnel were known by that name. 143. The court gave instructions, inter alia, for the request for information to the provincial gendarme command to be repeated, under penalty of attribution of a criminal offence. 144. The response of 7 September 1995 of the provincial gendarme command, denying the existence of any person known as “müdür”, was read out. The court issued a summons for the driver of the taxi whose presence was to be secured by the police. 145. Feyzi Gökçen made a statement confirming his earlier accounts. The accused informed the court that they no longer needed any more time for their defence. The court ordered a rogatory letter be sent to Pendik to obtain Erdal Açikgöz’s statement and that Yaşar Günbatı, Aziz Erbey and Zeyyat Akçil be released due to the change in the nature of the charge and the time spent in custody. 146. Erdal Açikgöz denied being in Diyarbakır after 1990. He was not involved in driving any car in the incident. His car 21T1127 had been in İstanbul. 147. The court instructed that the court file be sent to İstanbul Forensic Medicine Institute for a report on the deceased’s injuries and on whether Mehmet Mehmetoğlu could have driven a car or turned on the ignition. 148. This identified Sergeant Gültekin Seçkin, known as “Hoca”, a member of the 7th Army infantry battalion at Devegecidi, as the man who organised the killing of Mehmet Şerif Avşar. The accused was prepared to confront him and requested that he be brought before the court. 149. Ömer Güngör’s petition was read out. He had not known the name earlier. Counsel for Feyzi Gökçen and Ömer Güngör requested that an inquiry be made into Gültekin Seçkin. Mehmet Mehmetoğlu’s counsel protested that it would unnecessarily prolong the trial. The court ordered, inter alia, that an inquiry be sent to the Devegeçedi Infantry Battalion, 7th Army Corps Command, to determine whether Gültekin Seçkin was still serving in that unit and for his presence to be secured. 150. Referring to the court’s summons of Gültekin Seçkin of 5 November 1996, this stated that their records showed no-one of that name employed by the 16th Armoured Brigade. 151. The response from the Army Corps was read out. The court instructed, inter alia, that further enquiries be made from the 16th Armoured Regiment Command about Gültekin Seçkin. 152. The following information was requested: did Gültekin Seçkin work for their command in 1994; if, so what were his duties; where did he now work; what was his address? 153. There was a manuscript note on the letters: “does not exist in our records”. 154. The İstanbul Forensic Medicine Institute requested the exhumation of the deceased’s body to examine the skull and neck. The court, inter alia, instructed the public prosecutor to locate the body and to repeat the enquiry to the 16th Armoured Regiment. 155. This referred to the court’s letters of 25 December 1996 and 21 January 1997. The court had requested information with regard to Gültekin Seçkin. No entry had been found in their records. 156. Response from the 16th Armoured Brigade was read out. The court instructed inter alia that the public prosecutor continue his investigation concerning the body and that an enquiry be addressed to the army chiefs of staff as to whether a specialist sergeant Gültekin Seçkin served under their command, and if so, when and where. 157. The public prosecutor submitted that there was no useful purpose in exhuming the body. He adopted the submissions on the merits made earlier on 25 May 1994 and 24 April 1996. The court decided, inter alia, to abandon the exhumation and the attempt to hear evidence from Gültekin Seçkin; to review whether the file was ready for a final ruling; and to summon Mehmet Mehmetoğlu’s counsel to make his final submissions in his defence. 158. Counsel for the family submitted that the investigation was incomplete as the procedure to bring Gültekin Seçkin before the court had not been completed. She requested that the court extend the investigation in this respect. She also submitted that as the incident had been committed by gangs, working for state officials, the matter fell within the jurisdiction of the State Security Court. The court ordered that counsel for the family be allowed to carry out an inquiry into the case files concerning gangs operating in Diyarbakır and to inform the court if there was any information in them concerning a man matching the description of Gültekin Seçkin. 159. The court ordered the release on bail of Mehmet Mehmetoğlu and Feyzi Gökçen. 160. It was noted that Mehmet Mehmetoğlu had been released on bail and was performing his military service. Counsel for Feyzi Gökçen and Mehmet Mehmetoğlu and the public prosecutor submitted that further investigation into Gültekin Seçkin was unnecessary. Intervening counsel was not present. The court stated that it abandoned the intention to inquire into Gültekin Seçkin and withdrew previous instructions concerning such enquiries. 161. As the bench had changed, the court gave adjournments to examine the file and invited the public prosecutor and defence counsel to make further submissions. 162. The accused stated that he had had no animosity towards Mehmet Şerif Avşar. Mehmet Şerif Avşar had aided the PKK. He had stated that he would not accompany specialist sergeant Gültekin Seçkin and Mehmet Mehmetoğlu when they wanted to take him from his business premises. Feyzi Gökçen and Aziz Erbey had been going for the police when they met those two persons, who said that there was no need for the police. They entered the shop, showed their identification and took Mehmet Şerif Avşar away. When they stopped at a place on the Silvan Road, the accused, who was using crutches, waited during the interrogation. They told him to kill Mehmet Şerif Avşar and as they threatened him, for his own safety, he had to kill Mehmet Şerif Avşar. The incident took place due to the incitement of the specialist sergeant and Mehmet Mehmetoğlu. 163. The public prosecutor adopted his previous submissions. Ömer Güngör and Feyzi Gökçen had nothing to add. The court noted that charges had not been brought against the accused concerning Articles 179 paragraphs 1-3 and Article 180 paragraph 1. As Article 448 could apply to Feyzi Gökçen and Mehmet Mehmetoğlu, the former should be given time to make submissions and the latter should be summoned to appear from his military service. The prosecutor was to issue a new indictment. 164. Mehmet Mehmetoğlu appeared and made submissions on Article 448, repeating that he could not drive at the time. Ömer Güngör had nothing to add. 165. This listed Ömer Güngör, Feyzi Gökçen, Yaşar Günbatı, Aziz Erbey, Zeyyat Akçil and Mehmet Mehmetoğlu as accused of abduction and deprivation of liberty of Mehmet Şerif Avşar on 22 April 1994. 166. The accused had previously identified Mehmet Mehmetoğlu and specialist sergeant Seçkin from Devegeçidi as responsible for the incident. The sergeant’s name was in fact Sütçu. The Susurluk report referred to Avşar murder as being carried out by Mehmet Mehmetoğlu and others (see paragraph 89). Apparently, the reason was that Alaatin Kanaat had demanded money from Abdulkerim Avşar who was in prison. Mehmet Şerif Avşar must have been murdered when he refused to pay the demanded sum. He asked the court to take the Susurluk report into account as evidence in the case. 167. Ömer Güngör made submissions and presented a petition. This stated that the specialist sergeant’s name was not Seçkin but Şutçü and referred to the Susurluk report as giving information about this man’s activities and the killing of Mehmet Şerif Avşar. The court ordered the indictment to be served on the accused and for them to attend to answer it and for the matter of the Susurluk report to be adjourned. 168. The court instructed that a request be made to the Prime Minister, via the Ministry of Justice, to obtain the Susurluk report. 169. The court received a copy of the Susurluk report. 170. Ömer Güngör stated that he had killed Mehmet Şerif Avşar under duress from Mehmet Mehmetoğlu and Gültekin Şütçü. The court summoned Mehmet Sait Avşar to verify the autopsy identification. 171. Ömer Güngör stated that he was not guilty of the charges. Sergeant Gültekin Sütçü killed Mehmet Şerif Avşar. He had confessed because he was threatened. He was still being threatened. He asked for release. 172. Mehmet Ali Avşar confirmed that the autopsy report was signed in his presence and was correct. 173. The public prosecutor repeated his submissions on the merits. Ömer Güngör had initiated the incident due to his belief that Mehmet Şerif Avşar might know the location of his brother’s body. Feyzi Gökçen had brought Mehmet Mehmetoğlu back to the shop and Mehmet Mehmetoğlu had introduced himself as a security official and the others as village guards. The accused had drawn their pistols and forced Mehmet Şerif Avşar to go with them. Mehmet Mehmetoğlu left the taxi on the way to the gendarmerie while the others went on. The five village guards drove out of Diyarbakır with the victim. When four of them changed their minds, leaving Ömer Güngör and Mehmet Şerif Avşar together in the ruined building, Ömer Güngör shot and killed Mehmet Şerif Avşar. He submitted that Ömer Güngör had committed premeditated murder (Article 450 paragraph 4), that Feyzi Gökçen, Yaşar Günbatı, Zeyyat Akçil, Aziz Erbey and Mehmet Mehmetoğlu should be convicted and sentenced under Articles 179 paragraphs 1-3 and 180 paragraph 1 for restricting the freedom of Mehmet Şerif Avşar in using weapons and acting in concert. 174. Ömer Güngör submitted that Gültekin Şütçü was the perpetrator. At the very beginning, the gendarmes had told him what to say in his statement and that he would be out of prison in a year as they would look after him. No-one had helped him and now he had been threatened instead. 175. The court adjourned, stating that the case had reached the verdict stage. 176. Counsel for the family submitted that murder was widespread at the time in the region, when certain public officials were abusing their powers and forming gangs. Though the search for Gültekin Şütçü had earlier been abandoned, she stated that a search for him would lead to a more just result and would show that the allegations about the incident being personally motivated by Ömer Güngör’s desire to find his brother’s body were a diversion. The public prosecutor agreed that the 7th Army Corps and Army Supreme Command be questioned about Şütçü. The court gave orders to that effect. 177. The court summarised the indictment, the submissions of the prosecution, defence counsel and counsel for the family. It recounted the various statements made by the accused in their defence, and the other documentary and oral evidence. 178. The court concluded from the evidence as follows. Feyzi Gökçen, Yaşar Günbatı, Aziz Erbey and Zeyyat Akçil, provisional village guards, were sent to Diyarbakır to apprehend four PKK suspects. On the way in the car provided by the gendarmes, they met Ömer Güngör who joined them as he wanted to go to Diyarbakır for medical treatment. Three of the suspects were found and handed over that day. With help from the Security Directorate, they found the fourth the next day. At this point, the five guards bumped into Ferit Akça outside the Security Directorate. The uncle and brother of Ömer Güngör had been killed by the PKK, but their bodies never found. Ömer Güngör thought that Mehmet Şerif Avşar had been involved with the PKK and he might know where the bodies were. Carried away by this idea, Ömer Güngör took the others along to the Avşar shop, which Ferit Akça showed them. They arrived in the white Toros. Feyzi Gökçen, Yaşar Günbatı and Aziz Erbey entered first, joined later by Zeyyat Akçil, and they told Mehmet Şerif Avşar that he had to come for interrogation. He resisted. The others present asked for the police and for identity cards to be shown. Aziz Erbey and Feyzi Gökçen left to fetch the police. They brought back two people, Mehmet Mehmetoğlu and a man, with glasses, speaking good Turkish who was addressed as “Boss”. This man was said by Ömer Güngör to be Gültekin Şütçü. Mehmet Mehmetoğlu showed his ID card. The accused pulled their weapons when there was continued resistance. Mehmet Şerif Avşar agreed to leave. They hired a taxi as they were so many. Ömer Güngör, Zeyyat Akçil, Yaşar Günbatı, Mehmet Mehmetoğlu, Mehmet Mehmetoğlu’s friend and the deceased got into the white Toros and the others into the taxi. 179. The cars arrived at the gendarmerie. The white Toros left, with Ömer Güngör, Mehmet Mehmetoğlu, Feyzi Gökçen, the deceased and the man with glasses. Outside the city, Mehmet Şerif Avşar was taken to the scene of the incident. Mehmet Mehmetoğlu and the man in glasses interrogated him inside a building, while Ömer Güngör and Feyzi Gökçen were outside. Mehmet Mehmetoğlu and the man in glasses came out. Ömer Güngör went inside and killed Mehmet Şerif Avşar with two shots. 180. The motivation for the incident came from Ömer Güngör, the other village guards acting on the basis of his wishes. They had no authority or assignment to take Mehmet Şerif Avşar and so the five accused had restricted the freedom of the victim and violated his liberty in a manner which was to end in death. Ömer Güngör did not enter the shop but was at the scene of the killing. He had killed Mehmet Şerif Avşar without the knowledge of, and with a different motive from, the others. 181. The court convicted Feyzi Gökçen, Yaşar Günbatı, Aziz Erbey, Zeyyat Akçil and Mehmet Mehmetoğlu pursuant to Articles 179 parasgraphs 1-3 and 180 paragraph 1 as they had restricted the freedom of Mehmet Şerif Avşar at gunpoint, collectively and unlawfully, and he had been killed as a result. They were sentenced to 6 years and 8 months’ imprisonment and a fine of 216,666 TRL. They were acquitted of murder. Ömer Güngör was convicted of intentionally killing Mehmet Şerif Avşar pursuant to Article 448 and sentenced to 20 years’ imprisonment. A complaint was to be filed with the Chief Public Prosecutor against Gültekin Şütçü for the necessary action to be taken. 182. The Turkish Government, responding to requests from the Commission’s Delegates at the hearing of evidence, submitted the Law on Village Guards (see Relevant Domestic Law and Practice below) and a copy of the statement taken from the NCO Okan. They also stated that there was no entry in the Diyarbakır or Hazro gendarme records concerning the four men detained on 21-22 April 1994 with the alleged assistance of the five village guards. 183. It was recounted to the witness that Abdullah Avşar had stated that he had informed the duty NCO at Saraykapı that his brother Mehmet Şerif Avşar had been abducted and taken inside the gendarmerie and that the NCO told the family to go away. It was also stated that the witness’ signature appeared on a record of 9 May 1994 concerning the impossibility of finding car, registration no. 21T1127. 184. The witness stated that between 1990 and 1994 he was second-in-command of the central gendarmerie station under the orders of the Diyarbakır central gendarmerie commander. Since it was more than five years before he was unable to recall the Avşar incident clearly. He did not remember, and did not think that, he had talked to Abdullah Avşar as described and he did not remember being spoken to in that way. He remembered nothing about the investigation. 185. The applicant lodged with the Commission a copy of the so-called Susurluk report, produced at the request of the Prime Minister by Mr Kutlu Savaş, Vice-President of the Board of Inspectors within the Prime Minister’s Office. After receiving the report in January 1998, the Prime Minister made it available to the public, though eleven pages and certain annexes were withheld. 186. The introduction stated that the report was not based on a judicial investigation and did not constitute a formal investigative report. It was intended for information purposes and purported to do no more than describe certain events which had occurred mainly in south-east Turkey and which tended to confirm the existence of unlawful dealings between political figures, government institutions and clandestine groups. 187. The report analysed a series of events, such as murders carried out under orders, the killings of well-known figures or supporters of the Kurds and deliberate acts by a group of “informants” supposedly serving the State, and concluded that there was a connection between the fight to eradicate terrorism in the region and the underground relations that formed as a result, particularly in the drug-trafficking sphere. The report made reference to an individual Mahmut Yıldırım, also known as Ahmet Demir or “Yeşil” detailing his involvement in unlawful acts in the south-east and his links with MİT (National Intelligence Organisation): “... Whilst the character of Yeşil, and the fact that he, along with the group of confessors he gathered around himself, is the perpetrator of offences such as extortion, seizure by force, assault on homes, rape, robbery, murder, torture, kidnap etc., were known, it is more difficult to explain the collaboration of the public authorities with this individual. It is possible that a respected organisation such as MİT may use a lowly individual... it is not an acceptable practice that MİT should have used Yeşil several times... Yeşil, who carried out activities in Antalya under the name of Metin Güneş, in Ankara under the name of Metin Atmaca and used the name Ahmet Demir, is an individual whose activities and presence were known both by the police and MİT... As a result of the State’s silence the field is left open to the gangs (page 26). ... Yeşil was also associated with JİTEM, an organisation within the gendarmes, which used large numbers of protectors and confessors (page 27). In his confession to the Diyarbakır Crime Squad, ... Mr G. ... had stated that Ahmet Demir (page 35) would say from time to time that he had planned and procured the murder of Behçet Cantürk and other partisans from the mafia and the PKK who had been killed in the same way... The murder of ... Musa Anter had also been planned and carried out by A. Demir (page 37). All the relevant State bodies were aware of these activities and operations. ... When the characteristics of the individuals killed in the operations in question are examined, the difference between those Kurdish supporters who were killed in the region in which a state of emergency had been declared and those who were not lay, in the financial strength the latter presented in economic terms. These factors also operated in the murder of Savaş Buldan, a smuggler and pro-PKK activist. They equally applied to Medet Serhat Yos, Metin Can and Vedat Aydın. The sole disagreement we have with what was done relates to the form of the procedure and its results. It has been established that there was regret at the murder of Musa Anter, even among those who approved of all the incidents. It is said that Musa Anter was not involved in any armed action, that he was more concerned with the philosophy of the matter and that the effect created by his murder exceeded his own real influence and that the decision to murder him was a mistake. (Information about these people is to be found in Appendix 9). Other journalists have also been murdered (page 74).” 188. The report concluded with numerous recommendations, including the improvement of co-ordination and communication between different branches of the security, police and intelligence departments, the identification and dismissal of security force personnel implicated in illegal activities, the limiting of the use of confessors, a reduction in the number of village protectors, the cessation of the use of the Special Operations Bureau outside the south-east region and its incorporation into the police outside that area and the opening of investigations into various incidents and steps to suppress gang and drugs smuggling activities. It was recommended that the results of the Grand National Assembly Susurluk enquiry be forwarded to the appropriate authorities for the relevant proceedings to be undertaken. 189. In the section of the report concerning the activities of Yeşil, there were references to unlawful activities, including extortion, kidnapping and murder allegedly involving, amongst others, Mehmet Mehmetoğlu and Alaatin Kanaat. This passage is included: “By March 1994 Alaattin Kanat started introducing himself as the person in charge of the south-eastern region for MHP [the Nationalist Action Party]. At this stage his relationship with İbrahim Yigit, chairman of the Diyarbakır Province MHP went bad and around that time Ahmet Demir and Alaattin Kanat took İbrahim Yigit from the hotel at which he was staying in order to murder him but at a later stage for some unknown reason released him and took a certain amount of money in this fashion from İbrahim Yigit for the relevant company. – Specialist sergeant (Gültekin Şütçü) code name KURSAD from Devegeçidi, confessor İsmail Yesilmen and confessor Burhan Sare were witnesses to this incident. – Alaattin Kanat, Mehmet Mehmetoğlu, Ismail Yeşilmen and Ahmet Demir, code name Yesil, conspired and murdered Mehmet Sincer (member of Parliament from Batman) ... – Ahmet Demir personally planned and carried out the murder of Vedat Aydın and Musa Anter. A. Demir and A. Kanat collected large sums of money from Diyarbakır and the surrounding provinces with PKK headed threatening letters ... This collection of money was made by Mehmet Mehmetoğlu and A. Kanaat. – In 1993 by indicating that Abdulkerim Avşar, who was under arrest in Diyarbakır Type E prison in a PKK trial and who was the brother of the proprietor of the “Sedef Trading Company”, was transferred to the confessors’ dormitory, A. Kanat collected TRL 1 billion from Sedef Trading. They repeated their demand in 1994 and upon a refusal to pay the money they murdered Mehmet Şerif Avşar, a partner in the company and this incident surfaced for some unknown reason. 190. Mehmet Ali Avşar, the brother of the applicant, was born in 1959. He, Mehmet Şerif Avşar and Nemık Kemal Avşar ran a business partnership in Diyarbakır, running a fertiliser franchise. On 22 April 1994, shortly after 11.00 hours, a group of three people came into the shop, joined a few minutes later by two others. His brother Mehmet Şerif Avşar was down by the entrance. The witness, on the mezzanine, saw him talking to the visitors. His brothers Sait and Abdullah were also in the shop. 191. At first, he thought the visitors were customers. Then, due to the sound of arguing, he realised that they were not and he opened the window of his office and asked what was going on. They said that they had instructions from the public prosecutor in the Saraykapı court building to take one of them there. They did not mention Mehmet Şerif Avşar specifically. When the witness asked why, they said that Abdulkerim Avşar was in prison and had not come to make a statement. The witness said that they could not make a statement for their brother. They asked why he was making problems and said that they were security officials. He asked them to show their identity cards. They did not want to do that. He suggested that they go and find some police officers nearby, saying they would go with the police officers. One of the men said that he would call on the radio. He walked to the door, talking into the radio in his hand. He later recalled that it was probably Ömer who had a radio in his hand. At that point there were five men there, who talked, dressed and acted like people from the region. Abdullah noticed that one of the men was limping but did not see any crutches. The man who left came back in with two more people. They looked different and the others deferred to them as if they were in charge. One of them was dressed elegantly and neatly, spoke very correct Turkish and had a diary in his hand. He was clearly in command, being greeted respectfully like a senior official. The witness did not hear the word “müdür” used though. 192. The two men asked why the Avşar brothers were causing difficulties for the five men, saying that they were security officials and he should go with them. The Avşar brothers asked them to show their ID. One of the men, who claimed to be a security officer, opened his ID and closed it. The witness insisted on seeing it properly. The man pushed him to the wall, and said, “Shoot them.” The men drew their guns and cocked them. After argument, Mehmet Şerif Avşar said that he would go with the men in order to avoid an incident. They agreed, pulled him into the white Toros car 21AF989 in which they had arrived and took him away. According to his brothers, the seventh man, the one in charge, got into a taxi however. The brothers took the numbers of both cars. The people left in the shop panicked. They called the police emergency number and he himself called the gendarme number. His brothers Sait and Abdullah went out immediately and followed the white Toros in their own car, which was parked outside. He stated that the statements taken by the gendarmes which referred to a lapse of ten minutes were inaccurate. About 10-15 minutes later, the police arrived. They took their statements and said that they would look into it. After they had called their station on their radios, the police said that his brother had been taken to the gendarmerie and not to worry. He also phoned his father Süleyman, at his jewellers’ shop and his father went to Saraykapı to join his brothers. The taxi driver also came back to the shop, saying that he had dropped three men off at the gendarmerie. 193. He heard later that his brothers followed the car as far as the gendarmerie compound, which was at most five minutes away. The white car went inside. His brothers stopped at the gate. They told an NCO that their brother had been brought inside and wanted to know what was happening. The NCO told them that they were lying. After the village guards had delivered Mehmet Şerif Avşar into the gendarmerie, they came out. The brothers saw them and pointed them out to the gendarmes. 194. The witness was rung by his brothers who told him they were waiting outside the gendarmerie. The witness went to join them there. They told the gendarmes that they wanted to make a complaint. They were kept waiting until about 13.30 hours. Finally, the gendarmes told them to write a petition to the public prosecutor’s office. They wrote a petition and the witness took it to the public prosecutor’s office. At about 13.30 hours, the public prosecutor sent them to the police, as he had told the witness that the gendarmes had no authority to detain people in the city without the knowledge of the police. At the police station, they were kept waiting until about 16.00-17.00 hours, when they made their statements. The police said at that point that they had made a mistake in saying that his brother had been taken to the gendarmerie. The witness took their petition from the police and went back to the public prosecutor. The prosecutor said that the people concerned were village guards. As the gendarmes said that the village guards had returned to their villages, he would try to bring them back. 195. The next day, and over the days that followed, they went back to the police, the public prosecutor and the gendarmerie. Their father went to Ankara, talking to politicians, bureaucrats and many others. On about the fourth day, the witness went to see the Diyarbakır provincial governor. The governor said that he was aware of the incident and that they were doing everything in their power to find Mehmet Şerif Avşar. The witness and the family waited anxiously. 196. When the gendarmes came with six suspects to the premises to reconstruct the incident, he and his brothers pointed out that it was incomplete as the seventh person was missing. That evening, Captain Gül rang to say that a body had been found. They rushed to the morgue and identified it as their brother. He saw the body at the autopsy. There were dark bruises on his head and shoulders and his ankles were swollen and bruised, with a mark as if a cord had been wrapped round them. He did not believe, from the intact state of the body, that it had been left all that time in a river in the open as alleged. 197. From the beginning, they had insisted that there were seven persons but there was always excuses as to why he could not be found or denials that he existed. Some-one was always protecting the seventh person. As they considered that all their lives were now in danger, they left Diyarbakır. He moved to İstanbul to continue business there. About a year before the incident, Mehmet Şerif Avşar had been taken into custody but released after being brought before the court. The witness thought the incident had nothing to do with Ömer Güngör’s brother’s body but was because his family were perceived as being against the State. For example, the applicant worked for Özgür Gündem and Abdulkerim was in prison for helping the PKK. The confessor, Mehmet Mehmetoğlu, had also been with Abdulkerim in the mountains and maybe knew Mehmet Şerif Avşar when he helped Abdulkerim with an operation with his ear, though that was only a guess. 198. When the applicant’s lawyer referred him to the passage in the Susurluk report, the witness explained that Sedef Ticaret was a business in a different district and he did not know the partners. Nor did he know Alaattin Kanat. No threats had been made concerning demands for money. His brother Mehmet Şerif Avşar had been close friends with Mehmet Necati Aydın, who had disappeared a month before. His brother had been active in trying to find him. 199. The witness, born in 1932, was the father of the applicant and Mehmet Şerif Avşar. At the time of events, he and two of his sons had a jewellery shop, while Abdullah, Sait, Mehmet Şerif and Mehmet Ali ran the Toros Gübre fertiliser franchise, about a kilometre away. He was in his shop when his son was taken away. At about 11.30 hours, Mehmet Ali called him on the phone, saying that Mehmet Şerif had been abducted. He jumped in a taxi at once and went to the shop. Only Mehmet Ali was there. He said that they had taken Mehmet Şerif to the gendarmerie, so the witness went there immediately in a taxi. Ali stayed, waiting for the police. At the gendarmerie, where he arrived at about 12.00 hours, he saw Sait and Abdullah. They wanted to go inside to report the abduction but the gendarmes said the station was closed until 13.30 hours. As they waited by the door, Abdullah pointed out five of the persons who had been involved, walking around in the courtyard, 200 metres away. The white car was there also. His sons said the other two men involved had left in a car. He was sure that Mehmet Şerif Avşar was in the compound. There was only one entrance/exit, as the place was inside the ramparts of the old fort. Inside the wide gate, was the gendarmerie on the left and the prosecutor’s building to the north, with the prison behind. 200. At 13.30 hours, they were allowed into the gendarmerie. The five men were still outside in the courtyard. He spoke to an NCO on duty, telling him that his son had been abducted and brought there. He went upstairs to find out and when he returned his attitude had changed and he said, “Get out. Nothing of the sort happened.” He then returned to his shop. He was upset and did not notice if the village guards were still there at that point. He contacted a Member of Parliament, who called the Minister of Justice and the President for him. The deputy police chief called them that night to re-assure them that nothing would happen to their son. He flew to Ankara on 23 April, where he talked to 15 to 20 MPs, to the Minister for Human Rights and to the Vice President of the Turkish Grand National Assembly. The latter talked on the phone to the Minister of the Interior who said that Mehmet Şerif Avşar had been found in a military unit and nothing would happen to him. 201. His son Abdulkerim had gone to the mountains, been caught and confessed. The family had told him not to become a confessor because confessors not only admitted their crime but became contra-guerrillas, like Mehmet Mehmetoğlu. He suspected that his son’s decision to leave the confessors’ wing was a reason for what happened. Also his son Behçet (the applicant) had been found guilty of sympathising with the PKK and had fled to Germany, where he worked for the Özgür Gündem. There were photographs in the newspaper of the applicant with Öcalan. He had told his son that this put the family in Diyarbakır in danger. Mehmet Şerif Avşar was also a close friend of Necati Aydın who had disappeared, after which his son had looked after the father. 202. In answer to a question by the Government, he stated that many of his 500 strong family had been arrested or detained. His son Mehmet Ali had been arrested and sentenced under Article 169, being released in 1991. His son Sait, Sait’s wife and his daughter Adalet had been arrested, then released after a month. He had been told that his daughter Şükran had gone to the mountains. She was detained twice, and on the second occasion acquitted and released. As one of his sons was in the mountains, the police were always around, in their shops, harassing them. Mehmet Şerif Avşar had been detained once before, but released after being taken to court. 203. He had not attended the court proceedings himself as he was afraid. Because of the pressure, they sold their businesses at half price and left. He had never been called to give his statement. 204. The witness born in 1961, was the cousin of Mehmet Şerif Avşar. He was living in Bismil at the time of the kidnapping and murder. He described an incident on 18 June 1994, when he and his brother Nedim were told to get into a car by armed men. Both of them had run away. He tried to reach a police station but was knocked unconscious, coming round in a room with men in civilian dress. They asked him his connection with the applicant and Mehmet Şerif Avşar, saying that they had killed Mehmet Şerif Avşar and it would be his turn next. He was taken blindfolded to the gendarmerie and tortured, before being released. He had recognised one of the men in the car who had shot at him as being a gendarme NCO. 205. The witness, born in 1948, was a member of the Ankara bar. She was representing the family as interveners in the trial of the village guards in Diyarbakır. Though she did not attend all the hearings due to the distance and expense for the family, she followed the proceedings and received the documents. The proceedings had been going on so long because of the seventh person and the frequent changes in the bench of judges. Cases usually lasted two years, including appeals, though political ones lasted a long time. 206. As regarded the seventh person, her clients had mentioned the involvement of seven persons in their statements shortly after the incident to the gendarmes. Their statements to the police had apparently been lost. The accused referred to the seventh person for the first time on 5 July 1994, describing him as a military person or police officer but without giving his name. She had suspected that their earlier statements to the gendarmes, which were all suspiciously the same, had been given under duress and the seventh person deliberately omitted. The descriptions given were almost identical – an individual 1.60-70 cm, brown hair, somewhat heavy, with sunglasses who spoke perfect Turkish. 207. The seventh person’s name had been revealed as Gültekin Sütçü by the Susurluk report. His address had recently been given to the court in August 1999. As officials’ addresses were easily found, the reason for his non-appearance in the proceedings was due to powerful elements deliberately causing the delay or he had his own particular reason not to appear. She thought that the 7th Army Corps had been very negligent in not obtaining his address earlier. The court had failed to accept her request for photographs of personnel to be shown to her clients for the purposes of identification. Though the court made various requests on her application, they did not try very hard in her view. It was a mistake for the court now to summon him as a witness as he has been described as a suspect in the documents for a long time. However, he could only be heard as a suspect if the prosecution drew up an indictment, based on the necessary steps. She considered that there was negligence in that respect. 208. Her clients had been forced to leave Diyarbakır because of threats. She herself was followed when in Diyarbakır and threatened openly. She had received no response to her petition to the Ministry of Justice, though the judge, the President of the Court and the public prosecutor took some initiatives, helping her for a while in getting to the airport. That protection stopped when the bench changed. There were increased threats when the seventh person was mentioned in the proceedings. More recently with the exposure of the situation in the south-east, matters had improved. 209. She did not believe that the incident was based on Ömer Güngör’s personal ideas. It was ludicrous to believe a village guard would go with such a large group and take someone away. It was something more – a scare tactic, one of the illegal acts prevalent at that time. Her clients had told her that Abdulkerim had been forced to become a confessor under pressure and after a short time had changed his mind. They were afraid that they were being targeted to put pressure on him. 210. She referred to a medical report that recorded blows and marks on the body which were possibly due to trauma from a hard object. She had also been suspicious about the state of the body, which had not deteriorated as might have been expected if Mehmet Şerif Avşar had been killed when alleged. 211. The witness, born in 1966, had been a village guard from 1989. He had been wounded in a clash in July 1993. The injury had disabled him on the left side. Following an operation in November 1993, he had been told to come back to the military hospital in Diyarbakır every three or four months for treatment. He had been walking with crutches until November 1994. As village guard, he had gone wherever the State had told him. He had a gun. Though his principal duty was to protect the village, he went where he was sent, to take part in clashes elsewhere. That had happened many times. He did not remember if he had helped to detain persons before. 212. In April 1994, he went to Hazro as he wanted to go to Diyarbakır for medical treatment. He had not been during the winter as travel was not possible. He did not have a specific appointment. The commander said that he should go with the four village guards who were going to Diyarbakır and that he should help them apprehend some men to hand over to the station. There was no car to be delivered – the car was not an issue but only mentioned later for something to say. When asked how he could be expected to help if he was still injured, he said that he had to do what he was told and that perhaps it was to show the others where the headquarters were. 213. When they arrived in Diyarbakır, he showed the guards the gendarme headquarters and they saw Captain Gül. He sent them to the police headquarters. Together with the police, they apprehended four men and handed them over to the gendarmes. The witness stayed in the car during the operation. The guards stayed at the headquarters that night. In the morning, Captain Gül told them to go and bring Mehmet Şerif Avşar. He did not give any reason. 214. A villager Ferit Akça showed them where the shop was, but did not go into the shop. All five village guards entered the shop. He did so on crutches. He did not have a walkie-talkie or a gun, as he could not carry anything. Mehmet Şerif Avşar refused to come, saying that he would only go with the police. Aziz Erbey and Feyzi Gökçen went to call the police. They came back with two people, who had been outside and who had said that there was no need to call the police. The witness thought that they were the police. They showed their identity cards and took the man. At that point, as it was crowded, he was outside the shop leaning on a tree outside the door. He did not hear what was said inside the shop. The two men and one of the village guards drew their guns. They left in two cars. 215. When they arrived inside the gendarmerie, the men whom he later knew were the expert sergeant and the confessor Mehmet Mehmetoğlu said that they would interrogate Mehmet Şerif Avşar before handing him over. The witness was in the car and could not get out without help. The two men called for Feyzi Gökçen, got into the car and the confessor drove out of Diyarbakır, stopping at a ruin. He and Feyzi Gökçen stayed by the car. He could hear the men talking with Mehmet Şerif Avşar. Feyzi Gökçen helped the witness out of the car. Then, they heard gunshots and the two men came back. Feyzi Gökçen was a little way off. The expert sergeant came to the witness and said that he had to admit to killing Mehmet Şerif Avşar or they would kill him. The witness agreed as he was alone and disabled, with hardly any family. 216. On the way back, the police stopped them. Mehmet Mehmetoğlu accelerated away, the police following. When they got back to the gendarmerie, they explained everything and he had to admit to the killing. When he told Captain Gül that it was his man that did it and he would end up in prison, the Captain said that it was his problem. Captain Gül kept them detained for about an hour, then on release, they went back to Hazro with the convoy. From there he returned to the village. As matters had turned out, he had not been taken by the others to the hospital for treatment. 217. The witness’ elder brother had been taken away by the PKK and they had never seen the body since. He did not know who in the PKK killed him. There was no connection between his family and the Avşars. Mehmet Şerif Avşar who had not gone to the mountains would not know where to find his brother. 218. He had learned Mehmet Mehmetoğlu’s name in prison. Mehmet Mehmetoğlu told the guards that the other man was Gültekin Şütçü, an infantry expert sergeant from Devegeçidi in Diyarbakır. He gave the name to the court. 219. The reconstruction had been carried out as the gendarmes wanted. It was not correct that he had taken Mehmet Şerif Avşar’s arm. They took his crutches away when they took the photographs. The statements taken by the gendarmes had been made up by them. He went to where the body was, with the gendarmes and Captain Gül. He did not see the body himself, though he saw the gendarmes doing things with blankets and cameras. 220. The witness, born in 1960, had been a village guard from 1992. As a guard, he protected the village. When they saw persons helping the PKK, the village guards told the State and apprehended the suspects with the help of the State. They did so in the village, in the surrounding district and as far as Diyarbakır, with the knowledge of the State. There were no police in Hazro at the time and the soldiers did not know the people so the village guards virtually did the police work. Things had changed as the police were there now and there was no work left for the village guards. The guards had walkie-talkies for use at night in the villages. He did not have one with him in Diyarbakır. He had been to the Saraykapı gendarmerie quite a few times before in respect of the deaths of various relatives – three of his brothers and two uncles had been shot by the PKK. 221. The Hazro commander sent them to Diyarbakır to deliver a car and to help apprehend four people whom they knew, as they were from the Hazro area. He remembered meeting Ferit Akça outside the police headquarters, who was perhaps there about a licence for a gun. He had known Mehmet Mehmetoğlu as he was from Hazro. Ömer Güngör had walked with a single crutch. 222. He referred to his previous statements and court proceedings as regarded other questions. When asked, he stated that the latest of his statements was the one that was correct – the one which mentioned Mehmet Mehmetoğlu, and another unidentified man. He did not know if Ömer Güngör had killed Mehmet Şerif Avşar. However, he remembered seeing a gun in Ömer Güngör’s hand and a spot of blood on his shoe. Apart from that the statements read out were correct: 5 July 1994, 27 June 1995, 7 July 1995. He was still a village guard. 223. The witness, born in 1969, referred to his statement in court and stated that he did not wish to say anything more. 224. He did however answer a few questions. He had become a village guard in Ormankaya in 1994, or maybe November 1993. He did not go into the Avşar shop, but stayed outside. When they went to Diyarbakır, it was the first time he had been asked to do a duty. 225. The witness had become a village guard in 1992. His duty was to protect the village. There had been a raid on the village by the PKK, following which people gave up resistance and left. As he and others were unable to serve in the village, they went to carry out their duty in Hazro. 226. They had gone to Diyarbakır for their own personal needs, not under orders. While there they had seen some people and picked them up, delivering them to the authorities. Whether they had orders or not, they could intervene when they saw wanted people. Sometimes they helped the police pick people up; other times they acted by themselves and handed the people over. They would conduct searches around Hazro on their own initiative. Ömer Güngör was a village guard from Lice but he was living in Hazro temporarily as his village had been evacuated. 227. He did not remember whom the car belonged to. Ömer Güngör was limping a bit, but he did not recall if he was using crutches. There was probably a walkie-talkie with them. Probably they showed the people in the shop their village guard identity cards. They apprehended three men on the first day in Diyarbakır and the fourth one the next day. Captain Gül knew nothing about the incident. Ömer Güngör had acted on his own initiative and could not accuse anyone else. 228. When his statement to the court on 5 July 1994 was read out, he confirmed that it was correct. He was still a village guard. He referred to losing four of his own family to the PKK and to the deaths of 10 village guards in their village. The State did not order them to do things: if a crime was committed by the village guards, it was because of the village guards’ own ignorance or personal resentment against other villagers. 229. The witness had become a village guard in Ormankaya in 1993. The guards’ job was to protect the village. It had been attacked several times by the PKK and his elder brother, an uncle and three other villagers had been shot. He was still a village guard. 230. When asked about events in April 1994, he said that he did not want to remember and did not remember. 231. The witness, born in 1974, was living in Diyarbakır in April 1994. Prior to this time, he knew only Feyzi Gökçen, though all the other village guards were from his own district, Hazro. 232. On 21 April 1994, he was in the Kültür café with a woman friend. He left to go to his cousin’s shop and met Feyzi Gökçen and Aziz Erbey by chance. They told him that they were to apprehend a terrorist and hand him over to the State. They did not ask him to help them. He went back with them to the shop, as it was in the direction that he was going. He heard one of the people in the shop say that they could not trust the village guards. He asked them how they could take that position, as the men were village guards and would hand Mehmet Şerif Avşar over to the State. There was an argument going on as to whether Mehmet Şerif Avşar should go. The people in the shop said that the police should come. Eventually Mehmet Şerif Avşar said that he would go with them to the gendarmerie. No-one used force and there were no security officers present. At this time, he was at the door, waiting for Feyzi Gökçen. He never went inside, only talking to a young man whom he later knew to be a relative from by the door. He was not carrying a gun. 233. He got into a car with Feyzi Gökçen and was dropped off at the main post office area, from where he went to his relatives’ home. The post office was about 600-800 metres away. It was not in the direction of his relatives’ home. Mehmet Şerif Avşar was in another car with the other guards. He knew nothing about what happened until he was taken into custody later by the gendarmes. He got into the car as he thought Mehmet Şerif Avşar’s family might think he was one of them and react against him. 234. He had been in the PKK for a few months and when he was in custody he had given evidence on a few occasions. He had benefited from the remorse law by confessing to the State everything that he knew. He had been given no other duties, official or unofficial. He was just a citizen. In April 1994, he had no job. 235. When he was told that persons said that he had claimed to be a security officer with another man who had authority, he stated that he had been the victim of frame-up theories for years. He had seen no person acting as if they were in charge of the village guards. At another point he said that he could not say if any such person was there as he did not know anyone but Feyzi Gökçen and there was a group of people, five or six in addition to the village guards. 236. Ömer Güngör had no difficulty in walking or other functions at this time. He carried a small pistol. He was of the opinion that the whole incident was caused by Ömer Güngör using his own friends to carry out a murder for personal revenge. Abdulkerim Avşar had been the leader of a PKK group which had killed Ömer Güngör’s elder brother by melting plastic over him. He had heard about the incident when he was in prison with other confessors. Ömer Güngör had taken on a kind of blood feud. The witness had been in Abdulkerim Avşar’s PKK group for about a month and a half and they had carried out activities together. 237. About one month and a half before the incident, he had cut his hand, punching it through glass. The plaster had come off a few days before but he could not use his hand e.g. to pick up cigarettes or to turn a car ignition or to drive. 238. When asked why Mehmet Şerif Avşar’s relatives would insist that he was involved with another person, he claimed that the relatives had not been able to point him out at the identity parade. His photograph had been in the newspaper and he was always accused of being mixed up in incidents. At the reconstruction, sergeant Şuayip put a gun in his hand and made him under duress play the part of the person taking Mehmet Şerif Avşar away. 239. He did not meet Captain Gül on the day of the incident. He only saw him when he was taken into custody. He knew him from before though, when he was interrogated for terrorist offences. 240. He knew Alaatin Kanat. They had been together in prison for eleven-twelve months. They had had a friendly and respectful relationship. In prison though, there was no choice as to whom you were confined with. 241. The witness, born in 1947, was assistant commander at the Diyarbakır provincial gendarme command in 1994. He was given a team by the commander with orders to conduct an investigation jointly with Captain Gül, into the killing of Mehmet Şerif Avşar. This was a normal part of his duties, carrying out investigations as the commander considered appropriate. Captain Gül was not his subordinate but was attached directly to the provincial commander. 242. He did not remember many details of the investigation. He had taken statements of some relatives. He did not know anyone called Mehmet Mehmetoğlu. Neither had he heard the name Gültekin Şütçü. After a short time, he was assigned elsewhere and Captain Gül continued without him. He was not involved in any line of investigation concerning any alleged involvement of the security forces in the killing. He recalled one of the guards was disabled and it had crossed his mind how he could have been involved. 243. From his experience of 31 years, he stated that village guards were appointed by the provincial governor on approval of the district governor and the security forces. The State paid them and supplied them with pistols and long-barrelled weapons. Their duty was to provide security to the place where they were registered, namely within the territory of their village. They were given walkie-talkies when the need arose. They had special identity cards from the governor. They took orders from the muhtar. He denied that the muhtar would take orders from the gendarmerie, or that the gendarmerie would give orders to village guards. Village guards were not used for any purpose other than protecting their own village. It was not possible to use them for taking persons into custody. He did not recall why the village guards in this case had come into Diyarbakır. He confirmed that it would be unlawful for the Hazro gendarme commander to order the village guards to go to Diyarbakır to apprehend suspects. 244. The witness, born in 1960, was in April 1994 commander of the Diyarbakır provincial central district gendarmerie, in charge of the Saraykapı headquarters as well as the stations within the administrative limits of the central district, outside the municipal limits. He left that post in August 1994. Village guards used to come from the province and districts and always called at Saraykapı. It was a sort of meeting centre for them and they had guest houses at the regiment. At another point, he said that the guest house was by the courthouse. He could have met the 5 village guards before the investigation, but could not remember. He might have sent them on to the police when told about their instructions. Saraykapı had custody facilities, used for persons detained within their jurisdiction. 245. As regarded the five village guards’ involvement in apprehending persons in Diyarbakır, he had given no such orders. Orders might have been issued by the Hazro command to which they were attached. However, village guards were not authorised to take people into custody on their own. They only helped law enforcement officers, by informing them about wanted persons and assisting in their detention. Though their primary function was to protect their villages, they were regularly given anti-terrorist missions in other areas e.g. in operations or in assisting in apprehension. The village guards in this case were working with the police as far as he could remember. He agreed that he would have to be informed if village guards had been sent to his jurisdiction to take persons into custody. However the men concerned in this case were not in his jurisdiction. If the village guards had come to the guest house, they would certainly have reported to the gendarmes. He had not been in touch with the Hazro gendarme commander about the persons to be detained in his gendarmerie, though information would have been sent when they had been taken into custody. The custody record, if the persons were in the custody room and not merely waiting a few hours for the convoy, would record that event. 246. He knew Mehmet Mehmetoğlu, who had left the PKK. He would have co-operated with the police or other units in giving information and providing support in that connection. 247. He first learned about Mehmet Şerif Avşar’s abduction when the public prosecutor referred the petition of the family. He did not know if Mehmet Şerif Avşar was under surveillance or observation but his family might be directly or indirectly involved in terrorism. They were from Bismil and were known to have organic connections with terrorism. He was appointed by the provincial commander to conduct the investigation with Colonel Metin. Most of the questioning however was done by him and his team. After a month or so, the investigation was complete, and they sent the file to the public prosecutor. That was the end of his role. 248. According to his recollection, the real key to the incident was a personal conflict between Ömer Güngör and the Avşar family, members of whom were in the PKK and whom he considered had killed his brother. As regarded the alleged seventh person, they had found no indication or sign of the person in the investigation – there were contradictions in the descriptions given anyway. According to their enquiries, there was no such person in the security forces or police. He did not know anyone called Şütçü. Devegeçidi was entirely an army unit. 249. He recalled that Ömer Güngör was slightly disabled but did not notice crutches. Nor would his condition have prevented him from using a gun. He would never have given the instruction to detain Mehmet Şerif Avşar as it was outside his jurisdiction in the municipal area and the village guards were not attached to his command. There had been no duress during the reconstruction and the family and the village guards had not had any objections to what was done. 250. The gendarmes had carried out the investigation as the village guards were involved, guards being under the command of the gendarmerie, and because they had said that they were taking Mehmet Şerif Avşar to the gendarmerie. Though the victim had been abducted within police jurisdiction, he had been taken within gendarmerie jurisdiction and they took over the entirety of the investigation for consistency, aided by the police. 251. The checkpoint for the Saraykapı gendarmerie was by the Lion Fountain. The fountain itself was open to the public. The checkpoint did not affect persons going past the gendarmerie to the court building. It would have been impossible for the village guards and Mehmet Şerif Avşar to have entered without being checked. The allegation that he was brought to the gendarmerie was false. He could have been brought to the courthouse without their knowing. In his view, the family were exploiting the abduction of their son on behalf of the PKK. It was a case of ordinary homicide and Ömer Güngör had changed his story to save his skin. Any involvement of the security forces was out of the question and could never have happened. 252. The witness, born in 1965, was acting at the relevant time as intelligence operations NCO at the Saraykapı gendarme headquarters in Diyarbakır, under the command of Captain Gül. He had been in the team investigating the Mehmet Şerif Avşar incident. 253. The descriptions of the alleged seventh man had been contradictory, about height etc. Nothing was clear. At another point, the witness said that, as Ömer Güngör alone had done the killing, they left matters there. They had tried to find the taxi driver who drove from the scene without success. It was normal for village guards to give information about suspects to their commanders and then be sent to give the information to the relevant authorities in the city and show where the persons were if necessary. They could not act to detain on their own. 254. The guards and Mehmet Mehmetoğlu had raised no objections to the reconstruction. If so, they would have been recorded. He did not remember if they tried to find the NCO Okan identified by the relatives. 255. He stated that he had never heard of anything called JİTEM. He had no information before the incident about the Avşar family or whether they were involved with the PKK. 256. The witness, born in 1958, had been public prosecutor in the trial concerning the killing of Mehmet Şerif Avşar since January 1998 to date. 257. The prosecution view was that Ömer Güngör killed Mehmet Şerif Avşar and the others were accessories. Ömer Güngör had given information in 1996 about a man Seçkin. The court had little information about him and enquiries with the General Staff showed no-one by that name had worked in the region. Defendants often used to make up names to save themselves from conviction. Later, it was established that an expert sergeant Şütçü in fact existed and lived near Manisa. Letters rogatory had been issued. He was currently a witness, not a suspect. 258. Much of the delay in the proceedings was due to the lack of a presiding judge for a long time, and the fact that the court was presided over by temporary presidents. There were changes in the bench. The length in this case was exceptional. 259. He confirmed that the prosecution had consistently taken the view that the village guards were in Diyarbakır to search for and apprehend four men wanted for interrogation. There had never been any question of Ferit Akça being the seventh person. He had had doubts about the alleged desire of Ömer Güngör to find out information about his brother’s body, which would be difficult after that length of time. It was probably only a pretext for taking him away to kill him in a premeditated way. 260. The witness, born in 1949, was involved in the Mehmet Şerif Avşar investigation up to the transfer of the case to the court, where it was taken up by another colleague. He had prepared the indictment. He recalled no allegation about a seventh person being made by that time. He did not recall why the gendarmerie were carrying out the investigation, even though the abduction had taken place in police jurisdiction. As far as he could remember the body was found outside police jurisdiction. 261. The Turkish Criminal Code makes it a criminal offence: – to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants); – to issue threats (Article 191); – to subject an individual to torture or ill-treatment (Articles 243 and 245); – to commit unintentional homicide (Articles 452 and 459), intentional homicide (Article 448) and murder (Article 450). 262. The authorities’ obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles 151 to 153 of the Code of Criminal Procedure. Offences may be reported to the authorities or the security forces as well as to public prosecutor’s offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151). If there is evidence to suggest that a death is not due to natural causes, members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152). By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor’s office an offence of which he has become aware in the exercise of his duty is liable to imprisonment. A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 of the Code of Criminal Procedure). 263. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of State Security prosecutors and courts established throughout Turkey. 264. If the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case is governed by the Law of 1914 on the prosecution of civil servants, which restricts the public prosecutor’s jurisdiction ratione personae at that stage of the proceedings. In such cases it is for the relevant local administrative council (for the district or province, depending on the suspect’s status) to conduct the preliminary investigation and, consequently, to decide whether to prosecute. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case. An appeal to the Supreme Administrative Court lies against a decision of the Council. If a decision not to prosecute is taken, the case is automatically referred to that court. 265. By virtue of Article 4, paragraph (i), of Legislative Decree no. 285 of 10 July 1987 on the authority of the governor of a state of emergency region, the 1914 Law (see paragraph 264 above) also applies to members of the security forces who come under the governor’s authority. 266. If the suspect is a member of the armed forces, the applicable law is determined by the nature of the offence. Thus, if it is a “military offence” under the Military Criminal Code (Law no. 1632), the criminal proceedings are in principle conducted in accordance with Law no. 353 on the establishment of courts martial and their rules of procedure. Where a member of the armed forces has been accused of an ordinary offence, it is normally the provisions of the Code of Criminal Procedure which apply (see Article 145 § 1 of the Constitution and sections 9 to 14 of Law no. 353). The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person’s life by disobeying an order (Article 89). In such cases civilian complainants may lodge their complaints with the authorities referred to in the Code of Criminal Procedure (see paragraph 262 above) or with the offender’s superior. 267. Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings. 268. Article 125 §§ 1 and 7 of the Constitution provides: “All acts or decisions of the authorities are subject to judicial review... The authorities shall be liable to make reparation for all damage caused by their acts or measures.” That provision establishes the State’s strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people’s lives or property, without it being necessary to show a tortious act attributable to the authorities. Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons. 269. Article 8 of Legislative Decree no. 430 of 16 December 1990, the last sentence of which was inspired by the provision mentioned above (see paragraph 268 above), provides: “No criminal, financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this legislative decree, and no application shall be made to any judicial authority to that end. This is without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification.” 270. Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages (Articles 41 to 46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant’s guilt (Article 53). However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in principle, only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant (see Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. When an act is found to be illegal or tortious and, consequently, is no longer an “administrative act” or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim’s right to bring an action against the authority on the basis of its joint liability as the official’s employer (Article 50 of the Code of Obligations). 271. Chapter Eight of the Law on Villages (Law no. 442) concerns village guards and their duties. The role of village guards is to protect the life, honour and property of the people within the boundaries of the village (Article 68). There is to be at least one in every village, with one per five hundred population in villages of more than one thousand (Article 69). They are to be recruited by the Council of Elders and take up their duties on approval by the district governor (Article 70). Guards must be between the ages of 22 and 60, have no previous criminal conviction, have a good reputation and have no bad habits such as drunkenness or a tendency to quarrel with others (Article 71). They carry out the orders of the muhtar (Article 72) and carry weapons, resistance to them to be punished in the same way as resistance to gendarmes (Article 73). 272. Provision is made for the recruitment of volunteer guards in times of raiding and pillaging, extended by an amendment of Law no. 3612 dated 7 February 1990) to cover circumstances disclosing a state of emergency or other serious acts of violence. The provincial governor, with the approval of the Minister of the Interior, may establish the appropriate number of guards to be recruited, who are paid salaries, aids and indemnities for service by the Ministry of the Interior (Article 74). The weapons and ammunition of village guards are provided to the Council of Elders by the authorities (Article 75) and the weapon given to a guard can be used only by that person (Article 76). 273. Guards are allowed to use their weapons to protect themselves against attack, to protect the life of another person when no other solution is possible, if they encounter armed resistance while trying to apprehend a murderer or any other person caught in the act of committing an offence or fleeing the scene of the offence, where the apprehended person flees, disregards the “stop warning” and there is no other possibility than to resort to the use of weapons; and where during a chase to capture brigands a suspect appears in the area where the brigands are sheltering and does not respect the “stop warning” given by the guard. In any other circumstances, the guards shall be punished for using their weapons. Even where the use of weapons is justified, the guards should as far as possible seek to wound, rather than kill, the suspects (Article 77). 274. Village guards are required always to carry the village guard ID issued to them (Article 78). On death, resignation or dismissal, the guard’s weapon, ID, papers, badges etc are to be handed over to the muhtar (Article 79). Provision are made for disciplinary punishment (caution, reprimand, dismissal) of guards neglecting their duties or engaging in prohibited activities e.g. absence without leave, taking improper advantage of the vineyards, orchards or farmlands guarded by them, failing to carry their badge, uniform, weapons or exchanging them (Articles 80-81). Village guards who lose negligently or allow others to take their weapons or ammunition are to be discharged (Article 82). 275. Regulations concerning temporary village guards were drawn up under sections 74 and 75 of the Law on Villages (Law no. 442) and came into force on 24 October 1986 to establish the principles and procedures relating to temporary village guard’s appointments, training, duties and responsibilities, the areas within which they shall perform their duties as well as their occupational rights and their dismissal from duty. 276. Conditions for appointment as a temporary village guard include: that the person be of Turkish nationality, has completed military service, has no conviction for an infamous crime or inciting hatred or enmity (Article 312 paragraph 2 of the TPC), has no involvement in separatist or anti-State activities or blood feuds, is a native and resident of the village where he are performs his duties and has no physical or mental illness or disability that prevents him from performing his duties (section 7). Candidates have to apply in writing to the district or provincial governor, with copies of various documents (section 8). The application is referred to the district gendarme command, which opens a file on each application and investigates from its own records and other official sources. The collected information and the district gendarme commander’s comments are returned to the district governor and the candidates selected by him as suitable are submitted to the provincial governor for approval. The provincial governor issues the order of appointment. (section 10). On appointment, the village guards are summoned to the district gendarme command to take up their duties and receive their weapons, ammunition, clothes, identity cards and other items (section 11). 277. Pursuant to section 12, the area within which the village guards carry out their duties is the area within the boundaries of the village. However a village guard can pursue beyond the boundaries a person who has committed an offence within the village and the provincial or district governor can extend the area covered by the village guard beyond the village boundaries. The area of a village guard carrying out his duties along with the law and order forces, including tracking, chasing, collecting information and guiding such forces, was to be the area covered by that law and order force. 278. Pursuant to section 13, the duties of the village guards are as follows: – to identify, pass information to the gendarme command about, prevent the escape of and capture, persons who committed or attempted to commit, acts of assault, theft, violations of honour, sabotage, abduction, armed attacks, arson; – to take steps to preserve evidence of incidents requiring judicial procedures; – to report natural disasters; – to investigate the activities of, and collect information concerning, convicted persons and their relatives, and to report to the gendarmerie any information about offences; – to learn the names of any strangers in the area and to enquire into the reasons for their presence, finding out the names of the persons with whom they are staying; – to identify villagers or strangers spreading false reports or news aimed at disturbing the peace, or disseminating separatist propaganda; – to take measures to prevent attacks on, inter alia, roads, bridges, energy transmission lines, railways, pipelines, dams and to assist the general and special law and order forces in protection of such facilities; – to keep watch on whether derelict or remote houses in the village area are being used as shelters by fugitives, criminals or wanted persons; – to report at least once every fifteen days to the gendarme station with jurisdiction for the village to obtain instructions from the commander with regard to their tasks; to report, on being called to the gendarme station with their weapons with all promptness; to place themselves at the disposal of the gendarmerie or authorised military unit to carry out checks, or searches, or to track and capture fugitives from justice. 279. While carrying out their duties, they must use their weapons subject to Article 77 of the Law on Villages. When carrying out their duties along with military or law-and-order forces, the village guards, under the command of those units, have the same powers and responsibilities as those entrusted to that unit. They are authorised to use force to apprehend and to overpower those carrying out an attack or attempting an attack. (section 15). Guards are accountable administratively to the village muhtar and subject to his supervision. Occupationally, guards are under the command of the gendarme commander for the area covering their village and the district commander is responsible for training, ensuring village guards perform their duties effectively and supervising them (section 16). 280. On request of the district gendarme commander, the district governor may issue a warning to a guard who fails to carry out his duties or to maintain his equipment; he can stop pay one to ten days’ pay where a guard has been absent without leave for up to five days, disclosed confidential information or reported untrue facts (section 21). Guards may be dismissed, on approval by the provincial governor, for absence of more than five days without leave; recurrence of the acts under section 21; failure to take part in a mission when summoned by the district gendarme commander; hiding fugitives or wanted persons or failing to report their location; making improper use of, losing or allowing the seizure of, weapons and ammunition or other tools or equipment issued to them. (section 22). 281. On taking up their duties, the guards undertake a one week compulsory training course by the district gendarme commander, and receive two days’ training once every six months (section 25). Guards must present their weapons and ammunition for inspection by the gendarmerie at least once a month (section 27). | 1 |
dev | 001-77388 | ENG | BGR | CHAMBER | 2,006 | CASE OF STAYKOV v. BULGARIA | 3 | Violation of Art. 3;No violation of Art. 5-3 and 6-1 (loss of victim status);Violation of Art. 5-4;No violation of Art. 5-5;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Peer Lorenzen | 10. On 23 December 1991 the applicant was arrested and charged with murdering in a cruel manner for gain the eightyoneyears' old adoptive mother of a friend of his, Mr H. 11. On 18 March 1992 he was indicted. The Varna Regional Court held hearings in his case on 20 May, 19 June and 10 July 1992, but on 10 July 1992 discontinued the trial and remitted the case back to the prosecution authorities for the rectification of a breach of the rules of procedure. 12. Following an additional investigation, on 25 January 1993 the applicant was indicted again. A hearing listed before the Varna Regional Court for 28 February 1993 was adjourned because the applicant's counsel were absent. After holding hearings on 22 March, 26 April and 14 May 1993, in a judgment of 14 May 1993 that court found the applicant guilty and sentenced him to eighteen years' imprisonment. 13. Both the applicant and the prosecution appealed to the former Supreme Court. A hearing listed for 4 August 1993 was adjourned because the applicant's counsel were on leave, and took place on 20 October 1993. In a judgment of 10 November 1993 the former Supreme Court quashed the applicant's conviction and sentence and remitted the case for further investigation, holding that the Varna Regional Court had failed to substantiate its findings of fact and had erred in assessing the evidence. 14. On 6 January 1994 the case was transmitted to the investigator. He charged Mr H. with aiding and abetting the applicant. After that the case was twice forwarded to the prosecution and twice referred back for further investigation. That investigation was finished on 20 June 1997 and on 15 July 1997 the applicant and Mr H. were indicted. 15. Two hearings listed before the Varna Regional Court for 5 November 1997 and 9 February 1998 did not take place. On 9 April 1998 the court granted the applicant's request for the recusal of all prosecutors and judges of that court and sent the case to the Burgas Regional Court. The judge to whom the case was assigned there considered that it should be examined by the Varna Regional Court and sought a ruling on the matter by the Supreme Court of Cassation. In May 1998 the Supreme Court of Cassation held that the case was to be examined by the Varna Regional Court. 16. The proceedings before the Varna Regional Court then resumed, but at a hearing held on 6 October 1998 the court referred the case back to the prosecution authorities, finding that there had been procedural breaches which had violated Mr H.'s defence rights. On 19 January 1999 the prosecution authorities in turn referred the case back to the investigator, noting, inter alia, that he had not complied with instructions given as early as November 1996. 17. In January 2001 the prosecution authorities decided to stay the proceedings, as Mr H.'s whereabouts were unknown. Upon the applicant's appeal, their decision was quashed on 11 May 2001 by the Varna Regional Court, which held that the excessive length of the proceedings violated the applicant's rights and criticised the prosecution for having stayed them. The prosecution's ensuing appeal to the Varna Court of Appeals was dismissed on 26 June 2001. 18. On 9 July 2001 the prosecution authorities referred the case back for further investigation. This investigation was concluded on 15 February 2002 and the case was sent to the prosecution authorities. 19. On 19 March 2002 the prosecution authorities dropped the charges against Mr H., finding that they had not been sufficiently made out. On 16 May 2002 they indicted the applicant. 20. The Varna Regional Court held hearings on 30 September, 2 October and 17 December 2002 and 19 February 2003. In a judgment of 19 February 2003 it acquitted the applicant. 21. Upon the appeal of the prosecution, on 20 June 2003 the Varna Court of Appeals quashed the lower court's judgment and decided the case on the merits. It found the applicant guilty and sentenced him to fifteen years' imprisonment. 22. The applicant appealed to the Supreme Court of Cassation. After holding a hearing on 17 February 2004, on 30 March 2004 that court quashed the lower court's judgment and remitted the case. 23. The Varna Court of Appeals examined the case anew. In a judgment of 25 June 2004 it once again found the applicant guilty and sentenced him to fifteen years' imprisonment. In determining the sentence it noted, inter alia, that the criminal proceedings against him had been “particularly lengthy”. 24. The applicant again appealed to the Supreme Court of Cassation. After holding a hearing on 7 March 2005, in a final judgment of 18 April 2005 that court quashed the lower court's judgment, examined the case on the merits and acquitted the applicant, finding that the charges against him had not been proved beyond a reasonable doubt. 25. For the examination of the case the authorities interviewed repeatedly about twenty witnesses, appointed several experts and gathered other evidence. The case file reached nine volumes. 26. On 23 December 1991 the applicant was arrested and remanded in custody on the basis of an investigator's order of 13 December 1991, which stated that he had been charged with an offence punishable with up to twenty years' imprisonment or death, that he did not have a fixed place of abode and that his whereabouts were unknown. There was also a risk that he could endanger the lives of witnesses. 27. On 23 March 1993 the Varna Regional Court denied an application for release by the applicant, holding that detention was mandatory in the case of persons charged with an offence punishable by more than ten years' imprisonment. An exception was only possible if there was no risk, i.e., it was physically unfeasible for the applicant to abscond or reoffend, which was not the case. A further application for release made on 26 April 1993 was likewise denied by the court, which noted that it had already ruled on such an application a month earlier and there had been no change in the circumstances since then. It also stated that the applicant's arguments concerning the lack of evidence against him went to the merits of the criminal case, not to the issue whether or not he should be released. 28. On 14 May 1993 the applicant was convicted and sentenced to a prison term. That conviction and sentence were quashed on 10 November 1993 (see paragraphs 12 and 13 above). 29. After 10 November 1993 the applicant remained in custody. On 21 September 1994 the Varna Regional Prosecutor's Office refused his application for release, reasoning that, in view of the applicant's threats against certain witnesses and a prosecutor, there was a risk that he could hinder the investigation by destroying evidence and suborning and intimidating witnesses. 30. On an unspecified date in the meantime the applicant made offensive remarks against a prosecutor in a complaint concerning the handling of his case. On 2 September 1994 he was convicted on account of these remarks and sentenced to six months' imprisonment. On an unspecified date he was convicted on other charges concerning events before December 1991 and sentenced to a term of imprisonment. In accordance with the rules on sentencing, he was ordered to serve a nine months' prison term as a result of these convictions and sentences. It appears from the documents in the case file that the applicant did so between 18 November 1994 and 18 August 1995. After that his pretrial detention on the murder charges continued. 31. On 14 November 1995 the Varna Regional Prosecutor's Office denied an application for release by the applicant. It reasoned that in view of the seriousness of the charges against him pre-trial detention was mandatory by virtue of Article 152 § 1 of the Code of Criminal Procedure of 1974 (“the CCP”). It also stated that it was impossible to use the exception provided for by paragraph 2 of that Article, as its application was excluded by paragraph 3 thereof owing to the fact that there were two other sets of criminal proceedings pending against the applicant (see paragraphs 4851 below). 32. The applicant submitted a number of other applications for release, some of which were denied by the prosecution authorities and some of which were apparently not replied to. Some of the decisions contained no reasoning, while others stated that his remand in custody was mandatory in view of the seriousness of the charges against him. 33. The applicant also submitted a number of applications for release to the competent court. He filed such applications on 7 June and 7 November 1997, and on 9 February, 29 April and 10 August 1998. He advanced various arguments regarding the weak case against him, the lack of a risk of fleeing and his weakening health. Most of the applications were dismissed with reference to Article 152 §§ 1 and 2 of the CCP. Thus, in a decision of 24 February 1998 the Varna Regional Court stated the applicant had been charged with a serious intentional offence and his detention was accordingly mandatory under Article 152 § 1 of the CCP. There were no grounds to apply the exception provided for by paragraph 2 of that Article, as a hearing had been listed in the trial against him, whereas his position with regard to the charges revealed a genuine risk that he might abscond or impede the course of justice. 34. On 9 December 1998 the Varna Regional Court ordered the applicant's release on bail, holding that after seven years of detention and several rounds of investigation there was no risk of him jeopardising the investigation. There was furthermore no indication that he could flee or reoffend. The court also said that the length of the applicant's detention had exceeded a “reasonable time” within the meaning of the Convention. It set the bail at 2,000,000 old Bulgarian levs (BGL), without providing reasons as to the amount. Its order was not subject to appeal (see paragraph 54 below). 35. The applicant was not released immediately as he was unable to secure the amount. Following an unsuccessful attempt to have it reduced by the court, he posted bail and was released on 17 December 1998. 36. The applicant spent his time in custody (23 December 1991 – 17 December 1998) on the premises of the Varna Regional Investigation Service and in the Varna Prison. It appears from the documents in the case file and the parties' submissions that throughout the bulk of this time he was in the Varna Prison, and was kept in the Varna Regional Investigation Service's detention facility during six unspecified periods (probably when the proceedings against him were pending at the pretrial stage), the latest of which ended on 10 June 1997. The parties did not specify the exact periods when the applicant was kept on the Investigation Service premises, despite being requested to do so after the case was declared admissible (see paragraphs 6 and 7 above). 37. At the relevant time, the cells of the Varna Regional Investigation Service's detention facility had central heating and were each – save for two – equipped with an en suite toilet. Natural light came through glass tiles secured by metal bars. According to the applicant, the influx of natural light was limited. The detainees slept on plank beds. The applicant averred that at times he had been detained together with eight other persons in a cell measuring five to three meters. According to him, the ventilation system in the cell only worked for a few hours a day. He also stated that there was no openair exercise area on the premises. He was accordingly not allowed to take walks. Visitors were allowed only once a month. Food was of extremely poor quality. 38. According to the Government, the premises of the Varna Regional Investigation Service's detention facility were relatively new, built in 1982, offered conditions better than those of the Investigation Service's detention facilities in other towns, and were in line with the minimum European standards. The Government did not comment on the number of inmates kept in the applicant's cell. 39. The applicant submitted that in the Varna Prison he was kept in a cell measuring ten square meters, which he shared at times with three or four other inmates. According to him, during the nights they had to relieve themselves in a bucket kept in the cell. In 199293 warm water for bathing was available once a week, whereas later, in 1998, a warm shower was possible only once a month with the result that he often had to take showers with cold water, which had a negative impact on his health. He was allowed to take walks for approximately forty minutes a day. 40. The Government did not comment on the conditions in the Varna Prison. 41. During his time in custody the applicant was examined by a doctor on unspecified dates, apparently each time he was transferred from the Varna Prison to the Varna Regional Investigation Service's detention facility, and was found to be physically healthy. However, in July 1998 he was diagnosed with tuberculosis, for which he was treated in hospital between 14 July and 12 August 1998. Apparently he continued to receive medication for his illness after he was released from hospital. Reports on the applicant's mental health noted that he suffered from depression. 42. On 2 November 2000 the applicant issued a civil action against the Prosecutor's Office and the Varna Regional Investigation Service in the Sofia City Court. In his statement of claim he described the allegedly excessive length of the criminal proceedings against him and of his detention and pointed to the attendant negative consequences, such as a smear campaign against him in the press, a worsening of his health, the retention of the bail amount and a prohibition to leave the country. He alleged that this breached his rights under Article 5 of the Convention, his right under Article 6 § 1 of the Convention to a trial within a reasonable time, and his right under Article 8 of the Convention to respect for his private life. He claimed 50,000 new Bulgarian levs (BGN) in damages. He also requested the court to order the defendants to return the bail amount and allow him to leave the country. 43. Following instructions by the court to specify his request for relief, in three additional memorials the applicant indicated that he requested BGN 20,000 for the breach of his right to a trial within a reasonable time, BGN 15,000 for the injury to his reputation resulting from the impression, stemming from the length of the proceedings, that he was guilty of the offence alleged against him, and BGN 15,000 for the impossibility to leave the country during the pendency of the proceedings. He also stated that his claim was under section 1 of the State Responsibility for Damage Act of 1988 (see paragraph 56 below). 44. In a judgment of 29 July 2002 the Sofia City Court dismissed the applicant's action, holding that the defendants, being part of the judicial branch, did not carry out “administrative action” within the meaning of section 1 of the abovementioned Act in performing their duties relating to the processing of the criminal case against the applicant. They could hence not be found liable for a breach of that provision. On the other hand, the applicant did not plead a breach of section 2 of the Act and there was no indication that at that point in time the facts alleged by him fell within its purview. Noting that the applicant had been exempted from paying the court fee up front, the court, acting in pursuance of section 10(2) of the State Responsibility for Damage Act of 1988 (see paragraph 59 below), ordered him to pay BGN 2,000 in fees. 45. Upon the appeal of the applicant, on 24 January 2003 the Sofia Court of Appeals affirmed with almost identical reasoning. 46. The applicant appealed on points of law to the Supreme Court of Cassation. In a final judgment of 23 December 2005 that court fully quashed the lower courts' judgments and awarded the applicant BGN 5,000 (2,556.46 euros (EUR)), plus interest as from 2 November 2000, the date of the filing of the action. It also ordered the defendants to pay the applicant's legal costs, amounting to BGN 1,340 (EUR 685.13). The court described in some detail the unfolding of the criminal proceedings against the applicant and his pre-trial detention, and found that the applicant's reliance on the provisions of the Convention was wellfounded. It stated that the length of the pre-trial detention had breached the law. It also found that at the material time and until 2003 Bulgarian law did not set any timelimits for finishing the pre-trial phase of criminal proceedings. The provision that controlled this was therefore Article 6 § 1 of the Convention, which was part of domestic law. The period between 1991 and 2003 – throughout which the criminal charges against the applicant had not been determined and during which the applicant could not use any mechanism to speed up the proceedings – was significant and exceeded the reasonable time for examining the case. In such situations, where national law did not provide a possibility to vindicate infringed rights, they could be vindicated under international treaties which had been ratified by Bulgaria and had become part of its domestic law. For instance, Article 13 of the Convention, thus applicable, required an effective remedy against any alleged violation of that Convention. The inaction of the investigation and the prosecution authorities and the courts had infringed the applicant's right to a trial within a reasonable time and had caused him nonpecuniary damage. Taking into account that the applicant had sustained non-pecuniary damage on account of a pre-trial detention exceeding the time-limit provided by law and the failure to bring the criminal proceedings against him to an end between 1995 and 2003, and ruling in equity, the court considered that the damage could be made good by an award of BGN 5,000. It did not order the applicant to pay any court fees or costs for the remainder of his claim. 47. By Article 116(1), (7) and (9) of the Criminal Code of 1968, as worded at the time when the applicant was arrested and charged, premeditated murder committed in a particularly atrocious fashion and for gain was punishable by fifteen to twenty years' imprisonment or death. In 1995 life imprisonment also became one of the possible penalties. In 1998 the death penalty was abolished and replaced by life imprisonment, with or without parole. 48. Paragraphs 1 and 2 of Article 152 of the CCP, as worded at the relevant time and until June 1995, provided as follows: “1. Detention pending trial shall be ordered [in cases where the charges concern] an offence punishable by ten or more years' imprisonment or death. 2. In the cases under the preceding paragraph [detention pending trial] shall not be imposed if there is no danger of the accused evading justice or committing further offences.” Between June 1995 and August 1997 these provisions provided: “1. Detention pending trial shall be ordered [in cases where the charges concern] a serious intentional offence. 2. In cases falling under paragraph 1 [detention pending trial] may be dispensed with if there is no danger of the accused's absconding, obstructing the investigation, or committing further offences.” 49. At the relevant time Article 93 § 7 of the Criminal Code of 1968 defined a “serious” offence as one punishable by more than five years' imprisonment, life imprisonment, or death. 50. The former Supreme Court's prevailing practice at the material time was to construe Article 152 § 1 of the CCP as requiring that a person charged with a serious intentional offence be remanded in custody. An exception was only possible, in accordance with paragraph 2 thereof, where it was clear beyond doubt that any danger of absconding or reoffending was objectively excluded, for example, if the accused was seriously ill, elderly, or already detained on other grounds, such as serving a sentence (опред. № 1 от 4 май 1992 г. по н.д. № 1/92 г. на ВС І н.о.; опред. № 48 от 2 октомври 1995 г. по н.д. № 583/95 г. на ВС І н.о.; опред. № 78 от 6 ноември 1995 г. по н.д. 768/95 г.). 51. Paragraph 3 of Article 152 of the CCP, as in force between June 1995 and August 1997, provided that remand in custody was mandatory without exception where other criminal proceedings for a publicly prosecutable offence were pending against the accused, or where he or she was a repeat offender. 52. Accused whose release on bail had been ordered have to remain in detention until they deposit the requisite amount (Article 150 § 5 of the CCP). 53. On the basis of the relevant law before 1 January 2000 and the Supreme Court's practice outlined above, when ruling on the applications for release of persons charged with a “serious” offence, the domestic courts generally disregarded facts and arguments concerning the reasonable suspicion against them and the existence of a risk of their absconding or committing other offences. In their view, every person accused of a such an offence had to be remanded in custody unless exceptional circumstances dictated otherwise (see the Supreme Court's decisions cited above and the decisions of the domestic authorities criticised by the Court in, inter alia, the cases of Nikolova v. Bulgaria [GC], no. 31195/96, ECHR 1999-II; Ilijkov v. Bulgaria, no. 33977/96, 26 July 2001; and Zaprianov v. Bulgaria, no. 41171/98, 30 September 2004). 54. At the relevant time the firstinstance court's decision pursuant to an application for release was not subject to appeal (Article 152a § 3 of the CCP, as in force between August 1997 and 1 January 2000). 55. New Article 152b § 12 of the CCP, in force since 1 January 2000, as well as Article 65 § 11 of the Code of Criminal Procedure of 2005, which superseded it on 29 April 2006, provide that persons who remain in custody because they are unable to post bail are entitled to judicial review of their detention. In a binding interpretative decision of 25 June 2002 the Supreme Court of Cassation, construing the provisions of the CCP relating to pretrial detention, as amended on 1 January 2000, stated, inter alia, that in examining applications for release from pretrial detention the courts had to review, among other things, the lawfulness of detention resulting from the accused's failure to post bail (тълкувателно решение № 1 от 25 юни 2002 г. по н.д. 1/2002 г., ОСНК на ВКС). 56. Section 1 of the State Responsibility for Damage Act of 1988 („Закон за отговорността на държавата за вреди, причинени на граждани“), as in force at the relevant time, read as follows: “The State shall be liable for the damage suffered by individuals as a result of unlawful decisions, actions or omissions by its organs and officials, committed in the course of or in connection with the performance of administrative action.” 57. Section 2 of the Act, which sets out causes of action for tort claims against the investigation and the prosecution authorities and the courts, provides, as relevant: “The State shall be liable for damage caused to individuals by the organs of ... the investigation, the prosecution, the courts ... for unlawful: 1. pretrial detention ..., if [the detention order] has been set aside for lack of lawful grounds; 2. accusation of a crime, if the accused has been acquitted...” 58. In a binding interpretative decision of 22 April 2005 (тълкувателно решение № 3 от 22 април 2005 г. по гр.д. № 3/2004 г., ОСГК на ВКС) the Supreme Court of Cassation held, inter alia, that where the accused has been acquitted, the State is liable not only for the bringing of criminal charges, as specified by section 2(2) of the Act, but also for the pretrial detention imposed during the proceedings. The compensation for nonpecuniary damage should encompass the damage suffered on account of both, whereas the compensation for pecuniary damage should be assessed separately. In previous judgments (реш. № 978/2001 г. от 10 юли 2001 г. по г.д. № 1036/2001 г. на ВКС) the Supreme Court of Cassation has awarded compensation in such circumstances under section 2(1) of the Act. The view taken appears to have been that in such cases the acquittal retroactively had rendered the pretrial detention unlawful. 59. By section 10(2) of the Act, no court fees or costs are payable by plaintiffs upon the filing of actions under it, but in case the actions are eventually fully or partly dismissed, the court orders them to pay “the court fees and costs due”. The courts have construed this provision as meaning that the plaintiff should pay court fees and costs pro rata the dismissed part of his claims. 60. The CPT visited Bulgaria in 1995 and 1999. While it did not inspect the Varna Regional Investigation Service's detention facility and the Varna Prison, both of its reports include general observations about all Investigation Service's detention facilities, and its 1999 report includes observations on the high incidence of tuberculosis infections in the prisons during the preceding several years. 61. In this report (CPT/Inf (97) 1) the CPT found that most, even if not all, of the Investigation Service's detention facilities were overcrowded. With the exception of one facility where conditions were better, they were as follows: detainees slept on mattresses on sleeping platforms on the floor; hygiene was poor and blankets and pillows were dirty; cells did not have access to natural light; the artificial lighting was too weak to read by and was left on permanently; ventilation systems were in poor condition; detainees could use a toilet and washbasin twice a day (morning and evening) for a few minutes and could take a weekly shower; outside of the two daily visits to the toilets, detainees had to satisfy the needs of nature in a bucket kept in the cell; although according to the internal regulations detainees were entitled to a “daily walk” of up to thirty minutes, it was often reduced to five to ten minutes or not allowed at all; no other form of outofcell activity was provided to the inmates. 62. The CPT further noted that food was of poor quality and in insufficient quantity. In particular, the day's “hot meal” generally consisted of a watery soup (often lukewarm) and inadequate quantities of bread. At the other meals, detainees only received bread and a little cheese or halva. Meat and fruit were rarely included on the menu. Detainees had to eat from bowls without cutlery – not even a spoon was provided. 63. The CPT also noted that family visits were only possible with a permission. As a result the detainees' contact with the outside world was very limited. There was no radio or television. 64. The CPT concluded that the Bulgarian authorities had failed in their duty to provide detention conditions consistent with the inherent dignity of the human person and that “almost without exception, the conditions in the Investigation Service detention facilities visited could fairly be described as inhuman and degrading.” In reaction, the Bulgarian authorities agreed that the CPT's assessment was “objective and correctly presented”, but indicated that the possibilities for improvement were limited by the country's difficult financial circumstances. 65. In 1995 the CPT recommended to the Bulgarian authorities, inter alia, that sufficient food and drink and safe eating utensils be provided, that mattresses and blankets be cleaned regularly, that detainees be provided with personal hygiene products (soap, toothpaste, etc.), that custodial staff be instructed to allow detainees to leave their cells during the day to use a toilet facility, unless overriding security considerations required otherwise, that the regulation providing for thirty minutes' exercise per day be fully complied with, that cell lighting and ventilation be improved, and that pretrial detainees be as much as possible transferred to prison even before the preliminary investigation was completed. The need to afford detainees the opportunity for outdoor exercise was to be examined as a matter of urgency. 66. In this report (CPT/Inf (2002) 1) the CPT noted that new rules, providing for better conditions, had been enacted, but had not yet resulted in significant improvements. 67. In most places visited in 1999, the conditions of detention on the Investigation Service's premises remained generally the same as those found during the CPT's 1995 visit, including as regards hygiene, overcrowding and outofcell activities. In some places the situation had even worsened. 68. The CPT also observed that in the recent years there had been an increase in the incidence of tuberculosis cases in the Bulgarian prison system. It found that although certain efforts had been made to combat this disease, the steps taken by the authorities to ensure the medical screening of prisoners did not measure up to the relevant international standards. The CPT recommended that the authorities increase their efforts to implement these standards in the field of tuberculosis control (in particular, provide appropriate training and instructions to the prison doctors). During its visit to the Burgas Prison the CPT found that the conditions (in particular, the overcrowding and the poor lighting and ventilation) in the cells accommodating inmates suffering from tuberculosis, coupled with the limited possibilities for outdoor exercise, were conducive to the spread of the disease. Accordingly, it recommended that the authorities reduce the occupancy levels in these cells, improve access to natural light and ventilation, and enable the prisoners to maintain a level of personal hygiene consistent with the requirements of their state of health. | 1 |
dev | 001-67248 | ENG | UKR | CHAMBER | 2,004 | CASE OF TREGUBENKO v. UKRAINE | 3 | Violation of Art. 6-1 with regard to the right to a court;Not necessary to examine Art. 6-1 with regard to fairness;Violation of Art. 6-1 with regard to the right of access to a court;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | null | 7. The applicant was born in 1947 and lives in the city of Toronto, Canada. 8. As of 1988 the applicant ran a business in the city of Yalta, Ukraine, keeping a part of his profit in cash. 9. By the Presidential Decree of 22 January 1991, the bank-notes of 50 and 100 Soviet roubles issued in 1961 ceased to circulate and had to be exchanged for the notes of the same nomination issued in 1991. The Decree of the Cabinet of Ministers of the same date specified the procedure of exchange, providing, inter alia, that a special sub-commission (hereinafter the exchange commission) should be created within the executive committees of the City or District Councils to decide on the exchange of bank-notes. The exchange commissions were empowered to allow or refuse exchanges fully or in part, depending on the legality of the source of income being proved. 10. In January 1991 the applicant put the amount of 230,000 Soviet roubles in 50 and 100 notes into an account at the Yalta Branch of the USSR State Bank. At the same time the applicant applied to the Yalta exchange commission for an exchange of that sum. On 25 March 1991 the commission (Решение комиссии Ялтинского Городского Совета народных депутатов по обмену денежных знаков) refused to exchange the full amount because of an alleged lack of proof as to the legality of the source of income, and limited the exchange to 2,462 roubles. The remaining sum of 227,538 roubles was not compensated. 11. The applicant challenged that decision before the higher exchange commission of the Republic of Crimea. On 6 May 1991 the latter upheld the decision of the Yalta exchange commission. 12. The Government submit that, in accordance with the resolution of the Cabinet of Ministers of the USSR no. 2 of 22 January 1991, which regulated the procedure for the exchange of bank-notes, this decision of 6 May 1991 was final. 13. At the same time the State Security Service checked the legality of the applicant's business and found no irregularities. 14. On 19 July 1991 the applicant instituted proceedings in the Yalta City Court against the exchange commission for its refusal to exchange the full sum of 230,000 roubles. 15. On 22 July 1991 the Yalta City Court (Определение Ялтинского городского народного суда) rejected the claim for lack of jurisdiction. 16. The applicant appealed to the Crimean Regional Court against the judgment of the Yalta City Court. On 26 August 1991 the former quashed the judgment of the latter and remitted the case for further consideration. 17. On 16 October 1991 the Yalta City Court (Решение Ялтинского городского народного суда) found for the applicant and ordered the executive committee of the Yalta City Council to exchange all the money deposited by the applicant (230,000 roubles). 18. On 8 April 1992 the Crimean Regional Court (Определение Крымского областного суда) upheld this judgment. 19. On 17 April 1992 the judgments of 16 October 1991 and 8 April 1992 were quashed by the Presidium of the Crimean Regional Court (Постановление Президиума Крымского областного суда). 20. On 14 April 1993 the Civil Chamber of the Supreme Court of Ukraine (Ухвала Верховного Суду України) quashed the latter judgment and upheld the judgments of 16 October 1991 and 8 April 1992 in the applicant's favour. This judgment was final. 21. The judgment was not fully enforced for several years. On various occasions the applicant lodged claims to have the awarded sum adjusted to the inflation rate. On 23 May 1996, 10 December 1996, 27 May 1997 and 23 June 1998, the Yalta City Court granted the claims due to the longstanding non-enforcement of the judgment in the applicant's favour. The latter court decision increased the amount to UAH 349,387.82. 22. By letter of 26 June 1998, the Yalta City Mayor requested the Deputy Prosecutor General to intervene by lodging an appeal for supervisory review (protest) against the judgment of the Supreme Court of Ukraine given in favour of the applicant. 23. On 30 June 1998 the Chairman of the Court ordered the suspension of any further enforcement of the judgement until the supervisory review appeal had been considered. 24. On 9 September 1998 the Deputy Chairman of the Supreme Court of Ukraine lodged a supervisory review appeal with the Plenary of the Supreme Court (Постанова Пленуму Верховного Суду України) against the judgments in the applicant's favour. 25. On 25 September 1998 the Plenary allowed the appeal and quashed the said judgments, upholding the initial judgment of the Yalta City Court of 22 July 1991 to reject the applicant's claim for lack of jurisdiction. The Plenary decided that, since the exchange of banknotes was regulated by the Government Decree of 1991 (paragraph 9) which provided for the non-judicial review of the decisions of exchange commissions, the dispute was outside the courts' jurisdiction under the legislation in force in 1991. 26. The Yalta Mayor then requested the Yalta City Court to reverse the enforcement of the quashed judgment and to recover from the applicant the money which had been already paid to him (15% of the sum originally awarded). According to the Government, the court did not examine that request because, under an agreement between the parties, the applicant returned the money which had been paid to him. 27. By a letter of 25 November 1998, the Constitutional Court of Ukraine informed the applicant that it had no jurisdiction to review the decisions of the ordinary courts. 28. By a resolution of 9 December 1998, the proceedings on the applicant's case were closed due to the quashing of the judgment of 16 October 1991 by the Plenary of the Supreme Court. 29. At the material time, Chapter 42 of the Code of Civil Procedure subjected final and binding judgments to a possible supervisory review. When a final judgment was given by the Supreme Court of Ukraine, it could be appealed under the supervisory review procedure by the Chairman of the Supreme Court of Ukraine, the Prosecutor General of Ukraine and his or her Deputies (Article 328), and had to be considered by the Plenary of the Supreme Court (Article 329). The judgments of the Plenary were not subject to any further review. 30. The supervisory review procedure was repealed in June 2001. | 1 |
dev | 001-111212 | ENG | BGR | ADMISSIBILITY | 2,012 | KRASTEV v. BULGARIA | 4 | Inadmissible | David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva | 1. The applicant, Mr Krastyo Damyanov Krastev, is a Bulgarian national who was born in 1934 and lives in Sinyo Bardo. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs N. Nikolova, of the Ministry of Justice. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On an unspecified date in 2003 the applicant, a doctor, lodged a private criminal complaint against V.V. with the Mezdra District Court. The applicant claimed that V.V. had publicly defamed him by saying that the applicant had administered the wrong medicine to V.V.’s mother and that she had died as a result. The applicant also lodged a civil action for compensation for non-pecuniary damage which he claimed he had suffered. 4. By a judgment of 9 November 2004 the court acquitted V.V. and dismissed the applicant’s civil action, finding that the defendant had publicly stated that the applicant had given an unspecified medicine to his mother and had failed to inform him of its nature. The court noted that this statement did not contain any accusation that the applicant had caused the death of the defendant’s mother. 5. The judgment was pronounced publicly in the presence of the applicant and his counsel. The court noted that it was subject to appeal within a fifteen-day period following its pronouncement. The court further noted that in case of an appeal a hearing before the Vratza Regional Court was to be held on 20 January 2005. The judgment was pronounced without reasons, which were to be delivered later. 6. The applicant alleged that on several occasions he checked at the court’s registry in order to determine whether the reasons for the judgment had been delivered, but to no avail. It appears that on 17 December 2004 the applicant brought the issue to the attention of the president of the court by submitting a written request to be served with the reasons. 7. On 29 December 2004 the applicant obtained the reasons. 8. On 4 January 2005 the applicant filed an appeal against the judgment. In a decision of 5 January 2005 the Mezdra District Court returned the appeal to the applicant as having been submitted after the expiry of the fifteen-day time-limit. 9. The applicant’s appeal against this decision was dismissed by the Vratza Regional Court on 22 March 2005. The court stated that the deadline for lodging an appeal had been 24 November 2004. It noted that the timelimit for delivering the reasons was not related to the one for lodging an appeal. The court concluded that the belated delivery of the reasons had not impaired the applicant’s right to make an effective appeal, as he could have lodged an appeal and presented additional arguments at a later stage. 10. At the relevant time, an appeal was to be lodged with the firstinstance court within fifteen days of the pronouncement of the judgment (Article 318 of the Code of Criminal Procedure 1974). The court would check whether the appeal satisfied the procedural requirements and, if so, send it to the court of appeal (Article 332). 11. The appeal against the judgment might be detailed, containing specific grounds for contesting the judgment, or open-ended (бланкетна жалба). In substance, an open-ended appeal might contain only a declaration that the first-instance judgment was wrong (реш. на ВтАС № 165 от 24.19.2009 по в.н.о.х. д. № 101/2009 г., and реш. № 135 от 1.07.2005 г. ВтАС по в. н. о. х. д. № 139/2005 г., н. о.). The practice of submitting open-ended appeals in criminal cases was, and continues to be, common in Bulgaria (see, among many others, реш. от 11.11.2004 г. на ВтАС по в.н.о.х.д. № 240/2004 г. н.о.; реш. № 24 от 12.03.2005 г. на ВтАС по в. н. о. х. д. № 3/2005 г., н. о.; and реш. от 28.09.2010 по в.н.о.х.д № 255/2010 на АС Варна). 12. Until the hearing and regardless of whether a detailed appeal or an open-ended appeal was filed, the appellant could submit additional written pleadings in order to supplement his appeal (Article 319 § 3 of the 1974 Code, реш. от 13.07.2004 г. на ВтАС по в. н. о. х. д. № 113/2004 г., н. о.). 13. The court of appeal was obliged to examine the lawfulness and the correctness of the entire judgment, regardless of the grounds of appeal specified by the parties (Article 313 § 1 of the 1974 Code). This state of affairs was valid even when, in the case of an open-ended appeal, the appellant did not supplement the appeal with additional arguments (реш. от 16.04.2004 г. на ВнАС по в.н.д. № 312/2003, н. о.; реш. от 18.01.2005 г. на ВтАС по в. н. о. х. д. № 234/2004 г., н. о.; and реш. от 18.05.2009 по в.н.ч.х.д. № 247/2009 на ОС Пазарджик). 14. The above-mentioned provisions were reproduced almost verbatim in the new Code of Criminal Procedure 2005 (“the 2005 Code”) (Articles 314 § 1, 319, 320 § 3). 15. At the relevant time, in factually or legally complex cases the reasons for the judgment could be delivered after the judgment but not later than fifteen days following its pronouncement (Article 306 of the 1974 Code). 16. According to the case-law of the Supreme Court of Cassation, the periods for lodging an appeal and for delivering the reasons for a judgment run independently and each party to the proceedings is duty-bound to observe the time-limit for lodging an appeal. This is so because the party could file an appeal and supplement it with additional arguments once the reasons for the judgment were delivered (реш. на ВКС № 664 от 13.12.2004 по н. д. № 326/2004 г., III н. о.). 17. Pursuant to the 2005 Code, the reasons for the judgment may be delivered after the judgment but not later than fifteen days following its pronouncement. In factually or legally complex cases the reasons for the judgment may be delivered within thirty days after its pronouncement (Article 308). | 0 |
dev | 001-104866 | ENG | TUR | CHAMBER | 2,011 | CASE OF FIRAT CAN v. TURKEY | 3 | Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi | 4. The applicant was born in 1974 and is currently detained in Kırklareli Etype Prison pending the criminal proceedings against him. 5. On 5 February 1997 the applicant was arrested and taken into police custody by police officers from the Anti-Terrorist Branch of the Istanbul Police Headquarters on suspicion of membership of an illegal organisation. 6. On 19 February 1997 a single judge at the Istanbul State Security Court ordered the applicant’s pre-trial detention. 7. On 20 May 1997 the public prosecutor at the Istanbul State Security Court filed a bill of indictment with that court, charging the applicant with attempting to undermine the constitutional order, an offence proscribed by Article 146 § 1 of the former Criminal Code. 8. On 8 February 2002 the Istanbul State Security Court convicted the applicant as charged and sentenced him to death. 9. On 15 October 2002 the Court of Cassation quashed the judgment of the Istanbul State Security Court on account of a procedural defect which had prejudiced the rights of the defence. 10. In the meantime on 4 September 2002 the Head Office of the Institute of Forensic Medicine issued a report noting that the applicant suffered from Wernicke-Korsakoff syndrome and recommended the suspension of the execution of his sentence for a period of six months for medical reasons. It appears that this recommendation was not taken into account by the authorities. 11. State Security Courts were abolished by Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004. The case against the applicant was therefore transferred to the Istanbul Assize Court. 12. At the hearing held on 6 August 2008, the applicant asked to be released in view of the excessive amount of time he had already spent in pre-trial detention. The Fourteenth Chamber of the Istanbul Assize Court, however, ordered the applicant’s continued detention in view of the nature of the offence, the existence of a strong suspicion that the applicant had committed the offence and the possibility that he would abscond if released. 13. On 13 August 2008 the applicant objected to the decision of 6 August 2008 and again requested his release. 14. On 25 August 2008 the Ninth Chamber of the Istanbul Assize Court dismissed the applicant’s objection without holding a hearing and without providing any reasons for its decision. 15. On 18 December 2009 the Istanbul Assize Court convicted the applicant as charged under Article 146 § 1 of the former Criminal Code and sentenced him to aggravated life imprisonment. The applicant appealed this judgment. 16. According to the information in the case file, the case is still pending before the Court of Cassation. 17. On an unspecified date the applicant was temporarily transferred from Kırklareli E-type Prison to Istanbul Bayrampaşa Prison to attend the final exams at Marmara University, where he was registered as a student. 18. On 11 June 2007, before he was transferred from Istanbul back to Kırklareli following the end of the exam period, he was medically examined by the resident doctor at Bayrampaşa Prison, who noted no signs of illtreatment on his body. On the same day the applicant also signed a document stating that he had not been illtreated or subjected to any other adverse treatment during the course of his transfer to Kırklareli and that the gendarmerie personnel had not confiscated his money or other valuables. At 10.00 p.m. on the same day he was handed back to the prison authorities in Kırklareli. 19. On 12 June 2007 the applicant lodged a complaint with the Kırklareli Public Prosecutor’s Office against the gendarme soldiers in charge of his transfer, alleging that he had been tortured at their hands during the transfer from Istanbul to Kırklareli, and requested to be referred to the forensic medicine institute for examination. He also complained that the gendarme soldiers in question had appropriated under duress two gold and two silver rings he was wearing on the relevant day and he requested the return thereof. 20. On the same day a doctor at the Kırklareli Forensic Medicine Institute examined the applicant and noted a slight abrasion on the right inner corner of his upper lip, bruising and swelling on his biceps, pain on his tenth, eleventh and twelfth right ribs, widespread hyperaemia and pain in his right axial region (7-8 cm below the armpit) caused by physical trauma, pain and swelling around the metatarsal bones of his left foot, pain in the waist area and throat and difficulty in swallowing related to trauma. The report noted that the symptoms were likely to be the result of beatings or violence, and requested the applicant’s referral to Kırklareli State Hospital for the verification of any fractured bones. 21. On 13 June 2007 the applicant was examined at Kırklareli State Hospital, where it was noted that the injuries he had sustained were not life- threatening and would not cause long-term damage to his health. 22. On 10 September 2007 the applicant repeated his allegations of illtreatment against the gendarmerie personnel before the Fourteenth Chamber of the Istanbul Assize Court. 23. On 12 June 2007 Kırklareli Public Prosecutor interrogated the applicant regarding his allegations of ill-treatment. The applicant contended that on 11 June 2007, before he was put in the patrol wagon bound for Kırklareli Prison, a gendarme sergeant and ten gendarme soldiers in his command had shoved him into a toilet at Bayrampaşa Prison and beaten him up, squeezed his testicles, hit his throat with a truncheon and insulted him. He claimed that this treatment had mainly resulted from his refusal to comply with the gendarmes’ orders to remove and hand over his rings prior to the transfer. 24. On 14 June 2007 the Kırklareli Public Prosecutor issued a decision of lack of jurisdiction (görevsizlik kararı) in respect of the applicant’s complaints and referred the matter to the Eyüp Public Prosecutor. 25. On 10 January 2008 the Eyüp Public Prosecutor interrogated the gendarme sergeant, N.T., who had been in charge of the applicant’s transfer from Kırklareli to Istanbul on 11 June 2007. N.T. stated that he had no recollection of the applicant, nor of the events as recounted by him, and denied the allegations against him. He added that in accordance with the relevant regulations and instructions, prisoners’ valuables were removed prior to any transfer and handed over to the prison administration, which was responsible for their subsequent return to the prisoner. 26. On the same day the Eyüp Public Prosecutor requested information from the administration of Bayrampaşa Prison in respect of the applicant’s confiscated rings. On 15 January 2008 the prison administration informed the public prosecutor that the applicant’s personal belongings had been handed over to his wife on 18 June 2007. 27. On 25 February 2009 the Eyüp Public Prosecutor filed a bill of indictment with the Eyüp Magistrates’ Court against N.T., charging him with the offence of causing bodily harm under Article 86 §§ 2 and 3 of the Criminal Code and excessive use of force under Article 256 of the Criminal Code. The public prosecutor noted that despite N.T.’s outright denial of the charges against him, the findings of the medical report dated 12 June 2007 appeared to corroborate the applicant’s allegations of ill-treatment. He further specified in the bill of indictment that since the offences in question did not fall within the scope of Law no. 4483 (Law on the Prosecution of Civil Servants and Public Officials), no administrative authorisation was required for N.T.’s prosecution. 28. On 2 March 2009 the Eyüp Magistrates’ Court admitted the indictment and ordered that the first hearing be held on 10 November 2009. According to the information in the case file, the proceedings are still pending before the Eyüp Magistrates’ Court. 29. A description of the relevant domestic law and practice concerning judicial review of pre-trial detention under the former Code of Criminal Procedure (Law no. 1412) may be found in Çobanoğlu and Budak v. Turkey (no. 45977/99, §§ 29-31, 30 January 2007). 30. Section 1 of Article 141 of the new Code of Criminal Procedure provides the following: “Persons; ... b) who were not brought before a judge within the period prescribed by law, ... d) who were lawfully detained but not brought before a legal authority within a reasonable time and who were not tried within a reasonable time, during the criminal investigation or prosecution may demand compensation for all pecuniary and non-pecuniary damage they sustained from the State.” 31. Section 1 of Article 142 of the new Code of Criminal Procedure further provides: “Compensation may be demanded [from the State] within three months from the date of service of the final ... judgment and, in any case, within one year following the date on which the ... judgment becomes final.” | 1 |
dev | 001-23178 | ENG | SWE | ADMISSIBILITY | 2,003 | LINDGREN v. SWEDEN | 4 | Inadmissible | Nicolas Bratza | The applicant, Leif Lindgren, is a Swedish national, who was born in 1962 and lives in Färjestaden. He was represented before the Court by Mr S. Larsson, a lawyer practising in Eksjö. The respondent Government were represented by Ms E. Jagander, Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 7 February 1997 S. was attacked several times outside his home by a person using a knife or a bayonet. S. was heard by the police on at least three occasions in February and early March 1997. Thereafter, on 6 March, defence counsel was appointed for the applicant. A further police interview with S. was held on 18 March. According to the applicant, he and his counsel were not informed of this interview or invited to attend it. The applicant was subsequently charged with attempted murder of S. The applicant and S. knew each other, having served time together at the same prison and having met thereafter on a couple of occasions at the home of S. On 26 March 1997 the applicant received a copy of the records of the preliminary investigation. Those records state that the applicant had no objection or comments to the documentation of the investigation. On 8 April, 27 May and 2 June 1997 the District Court (tingsrätten) of Kalmar heard the case. On 8 April S. came to the court’s waiting room but then left. The prosecutor stated at the hearing that he had talked to S. in the waiting room who had said that he had nothing to add but that he stood by the information he had given to the police. The court ordered that S. be fetched by the police, proceeded with the hearing but later discontinued it as S. had not been found. On 27 May the District Court adjourned the case, noting that the police had not been able to enforce the court’s order that S. be brought to the hearing. On 2 June S. again came to the waiting room but left before the hearing started. The District Court then decided to continue the hearing of the case in the absence of S. It allowed that his statements made during the preliminary investigation be read out. By a judgment of 6 June 1997 the District Court convicted the applicant of aggravated assault of S. and attempted murder of another person who had been attacked on a different occasion. The applicant was sentenced to five years in prison. Both the applicant and the public prosecutor appealed to the Göta Court of Appeal (Göta hovrätt). The prosecutor requested that S. be heard in person before the appellate court or, alternatively – in the event that he would not appear –, that his statements to the police be admitted as evidence. The applicant objected to the alternative request, stating, inter alia, that it would violate the applicant’s rights under the Convention. On 22 July 1997 the Court of Appeal decided to refuse the prosecutor’s alternative request. The Court of Appeal heard the case on 31 July, 1 August and 7 August 1997. Following S.’s non-appearance on the first day, the court ordered that he be brought to the court by the police. The police were not able to enforce the order in time for the second day. However, on 7 August S., serving a prison sentence at the time, was taken to the court by the transportation service of the National Prison and Probation Administration (Kriminal-vårdsstyrelsen). At the hearing S. refused to give evidence except for stating that it was not the applicant who had attacked him and that he had not previously named the applicant as the perpetrator. The court then decided to allow as evidence the statements made by S. during the police investigation. By a judgment of 22 August 1997 the Court of Appeal convicted the applicant of attempted murder also in regard to the attack on S. and sentenced him to imprisonment for a total of eight years for the two crimes. With respect to the statements made in the case by S. the court stated, inter alia, the following: “During the police investigation [S.] first stated that he was attacked by a man, who was accompanied by another man, and then that the attacker came in the company of a woman. ... During the preliminary investigation it also occurred, according to the testimony made by police officer [D.], that [S.] was asked whether the right person was detained in the case, and then nodded affirmatively and said ‘you know that, of course’. [S.] was summoned twice to the District Court’s main hearing. On both occasions he came to the court’s waiting room but disappeared before the hearing started. During the hearing before the Court of Appeal, [S.] showed signs of being deeply upset. He acted as could be expected from a person, who is afraid of reprisals. ... The fact that [S.] has not been heard by the District Court and mostly refused to give evidence before the Court of Appeal raises the question of the application of Article 6 of [the Convention] – the right to a fair trial and the right to examine or have examined witnesses ... . The European Court of Human Rights has in a number of judgments dealt with this issue (see, inter alia, Unterpertinger ..., where the Convention was found to have been violated, and Asch ..., where no such violation was found). Chapter 36, section 16, subsection 2 of the Code of Judicial Procedure (Rättegångsbalken) shall be interpreted restrictively in the light of Article 6 and the European Court’s application thereof ... . The Court of Appeal notes at the outset that the presentation of material from the preliminary investigation in itself cannot be considered as a violation of Article 6. According to the above-mentioned judgments, it seems that the decisive point as to whether there has been a violation is whether the conviction has been based primarily on this material. In order for the Court of Appeal to be able to draw a conclusion on this point, it is first necessary to examine the evidence in the case. There is no doubt that [S.] has sustained the injuries alleged by the prosecutor, nor as to how this happened. As to the identity of the perpetrator, [S.] has avoided to directly identify [the applicant]. Therefore, a conviction cannot be based on [S.’s] statements alone. The prosecutor has invoked certain supplementary evidence. In addition to this evidence, it is of importance that [the applicant] has not invoked any form of alibi evidence. The Court of Appeal is of the opinion therefore that the statements made by [S.] during the preliminary investigation are not the primary evidence in the sense laid down by the European Court. Article 6 of the Convention cannot therefore be considered as prohibiting this evidence from being considered by the Court of Appeal. On the basis of the available material, the Court of Appeal makes the following assessment. According to what [S.] has stated, the perpetrator visited him on 5 February 1997. This information should be considered in conjunction with the statement of [witness 1] that [witness 1] the same day met [S.] together with a person whom [witness 1] has identified as [the applicant], and then lends support to the conclusion that [the applicant] is the perpetrator. Although the identification of [S.] made by [witness 2] at a photo line-up does not have any real value as evidence, her observation of a man outside the home of [the applicant] on 7 February 1997 confirms what [S.] has stated regarding his visit to the home of the perpetrator. The observations made by [witness 3] concerning the perpetrator’s looks do also, to some extent, support the conclusion that [the applicant] is the perpetrator. The statements made by [S.] during the preliminary investigation have thus been verified on various points. This fact together with what has otherwise been revealed in the case is highly compromising for [the applicant]. It is apparent to the Court of Appeal that [S.] throughout the investigation and the hearing of the case has been afraid of [the applicant]. The fact that [S.] during the oral hearing before the Court of Appeal denied that [the applicant] was the perpetrator can therefore be disregarded. The Court of Appeal finds it proven beyond reasonable doubt, as did the District Court, that [the applicant] is identical with the perpetrator.” On 29 September 1997 the Supreme Court (Högsta domstolen) refused the applicant leave to appeal. Chapter 35, section 4 of the Code of Judicial Procedure provides: “A statement made in writing on the occasion of already opened or imminent legal proceedings or a written record of a statement made on the occasion of such proceedings to the prosecutor or the police or otherwise out of court may be invoked as evidence in the proceedings only 1. if this is specifically prescribed, 2. if the person who made the statement cannot be examined at or outside the main hearing in the case or otherwise before the court, or 3. if there are particular reasons, taking into account the costs and inconvenience that an examination at or outside the main hearing may entail, the possible gain of such an examination, the significance of the statement and other circumstances. The rules on statements in writing or in written records in the first paragraph apply also in regard to a phonetic or similar record of a statement.” Chapter 36, section 16, subsection 2 reads: “During the hearing of a witness, the witness’s prior statement before a court or before a prosecutor or the police may be presented only when the witness’s testimony differs from what he has previously stated or when the witness declares that he cannot or will not speak.” The latter provision applies also to a hearing of an injured party, according to chapter 37, section 3, subsection 1. | 0 |
dev | 001-24004 | ENG | RUS | ADMISSIBILITY | 2,004 | CHERNYSHEVA v. RUSSIA | 4 | Inadmissible | Christos Rozakis | The applicant, Mrs Galina Ivanovna Chernysheva, is a Russian national, who was born in 1961 and lives in Kaliningrad. The applicant is a journalist writing for the Citizen («Гражданин») newspaper published by the Kaliningrad town administration. The applicant is represented before the Court by Mr Yu. Shitikov, a lawyer practising in Kaliningrad. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. On 27 April 2000 the applicant published an article under the headline “Evil Flat of Prosecutor Tkach” («Нехорошая квартира прокурора Ткача») in the Citizen. The article concerned a civil dispute between Mrs Tkach, the spouse of the prosecutor of the Moskovskiy district of Kaliningrad Mr Tkach, and Mr and Mrs Sh., her neighbours who lived in the attic, right above Mrs Tkach’s flat. In 1998 Mrs Tkach and Mr T., another neighbour, had sued Mr and Mrs Sh. for an injunction to stop unauthorised construction works in the attic. The first-instance court had dismissed the suit. However, the applicant continued, the appeal court quashed the judgment in the part concerning the claims of Mrs Tkach, but not the claims of Mr T., notwithstanding the fact that their claims had been identical. The applicant alleged that this was only possible after Mr M., a colleague of Mr Tkach and prosecutor of the Tsentralniy district, intervened in the proceedings. In the article the applicant critically described the new hearing on Mrs Tkach’s claims on 27 March 2000 and strongly disagreed with the court judgment made in favour of Mrs Tkach. The article implied that the parties to the dispute were not equal before the law precisely because the plaintiff’s husband was a prosecutor. On 3 May 2000 the prosecutor Tkach filed an action against the applicant and the Citizen for the protection of his honour, dignity and professional reputation and compensation for non-pecuniary damage. The statement of claim was printed on the letterhead of the prosecutor’s office of the Moskovskiy district of Kaliningrad and signed “the prosecutor of the Moskovskiy district, senior justice advisor, V.N. Tkach”. It also bore the outgoing registration number of the prosecutor’s office. Mr Tkach argued as follows: “1. The said article puts a special emphasis on my actions, allegedly unworthy of a prosecutor; however, my professional activities and my position are in no way related to the essence of the judicial dispute in question: I was not a plaintiff in the dispute, [neither] as an individual nor as a prosecutor. ...No journalist should be allowed to make [the living conditions] of a prosecutor the subject of a public discussion. No one has the right to invade my private life, I did not break the law living in my flat – neither as a prosecutor nor as an individual.” Mr Tkach also submitted: “In accordance with Article 43 of the Federal Law on Prosecutors in the Russian Federation verification of information on a violation allegedly committed by a prosecutor shall be the exclusive competence of prosecutors’ offices. This law applies to all citizens without exception, including journalists, who have no right to collect information on private lives of prosecutors and investigators and even more so to publish it in the media without consent of a prosecutor’s hierarchical superior.” Mr Tkach explained that the action against the neighbours had been lodged by his wife who was also the owner of the flat. He denied that he or his wife had ever wanted to improve their living conditions at the expense of their neighbours. On this ground he requested the court to declare that the following extracts from the applicant’s article had damaged his honour and his professional reputation of a prosecutor: “‘Every prosecutor has an evil flat of his own’. These words are not mine. This is what people say. You can think anything you want. But in our case the issue is that Mr and Mrs Tkach are dissatisfied with their housing conditions. They want an improvement. At the expense of their neighbours, Mr and Mrs Sh.” “Make way! The prosecutors’ couple comes.” “In order to satisfy [the claim of] Mr and Mrs Tkach and grant them [the right to use a part of the attic]... the administration of the Tsentralniy district will apparently have to: - build a new entrance into the flat of Mr and Mrs Sh., which had already existed when they moved in; - brick in the two doors leading into their rooms and cover the resulting wall with stucco and wallpaper; - convert two separate rooms into one with the only one entrance-exit through the kitchen.” “P.S. The prosecutor Tkach has a wonderful three-room flat, its total surface measures almost 100 square metres and the ceilings are three metres high.” [“«У каждого прокурора есть своя нехорошая квартира». Это не мои слова. Это – уже фольклор. Здесь можно думать всё, что угодно. Но в нашем случае речь идет о том, что Ткачи недовольны своими квартирными условиями. Они хотят их улучшить. За счет соседей Ш. Дорогу! Чета прокуроров идет! Чтобы удовлетворить Ткачей, отдав им пазуху... администрации Центрального района, видимо, придется: - перепланировать новый вход в квартиру Ш., который уже был, когда они вселялись; - заложить кирпичами две двери в их комнаты, образовавшуюся стену зашпаклевать, поклеить обои; - две их раздельные комнаты превратить в смежные, с единственным входом-выходом – в кухню. P.S. У прокурора Ткача прекрасная трехкомнатная квартира, общей площадью почти 100 кв. м, с трехметровыми потолками.”] The court accepted the defamation action and ordered a linguistic expert examination of the article at issue. On 18 August 2000 the acting prosecutor of the Kaliningrad Region (и.о. прокурора Калининградской области) issued to Mr Tkach the following power of attorney printed on the prosecutor’s office letterhead and sealed with the prosecutor’s office stamp: “[Hereby] the prosecutor’s office of the Kaliningrad Region represented by the acting prosecutor [Mr] Vyacheslav Fedorovich Chulkov authorises the prosecutor of the Moskovskiy district, [Mr] Vladimir Nikolayevich Tkach <...> to take part in civil proceedings before all judicial authorities, including [the action] for the protection of the honour and dignity of the prosecutor of the Moskovskiy district before the Tsentralniy District Court of Kaliningrad, having all rights granted by law to a plaintiff, defendant or third parties, [including the right] to withdraw the action in whole or in part, accept the claim, alter the subject of an action, conclude a friendly settlement, delegate the powers to an attorney (substitution), appeal against a court decision, obtain writs of execution, recover the awarded property or moneys, and sign all necessary documents on my behalf.” On the same day Mr Tkach submitted a new version of his action. It was drafted on the letterhead of the prosecutor’s office of the Moskovskiy district of Kaliningrad and the plaintiff was designated as “the prosecutor of the Moskovskiy district, senior justice advisor, Mr Tkach”. The statement of claim bore an outgoing registration number of the prosecutor’s office. In the new version of the statement Mr Tkach referred to the results of an internal inquiry carried out by the prosecutor’s office of the Kaliningrad Region on 6 July 2000 in connection with the applicant’s article. According to Mr Tkach, the inquiry did not establish any violations or unethical behaviour on the part of Mr Tkach and found that the facts described in the articles were untrue. Mr Tkach submitted that the applicant had failed in her professional duty to publish only accurate information and abused her rights as a journalist because she had allegedly defamed him exclusively on the ground of his occupation, place of residence and professional position. Mr Tkach asked for compensation for non-pecuniary damage to be transferred to the bank account of the prosecutor’s office of the Kaliningrad Region. As to the remainder, Mr Tkach repeated his initial claims, but he also added that the title of the article in question be declared untrue and damaging to his reputation. On 16 November 2000 the applicant published a new article under the title “Prosecutor Tkach and freedom of expression – 4 (the story continues)” («Прокурор Ткач и свобода слова – 4 (эпопея продолжается)»). The article related once again the story about the civil action brought by Mrs Tkach against her neighbours and alleged that only Mr Tkach’s intervention in his professional capacity had secured an award in favour of his spouse. The article also criticised Mr Chulkov’s decision to issue an official power of attorney to Mr Tkach for the protection of the latter’s personal interests. On 4 December 2000 Mr Tkach filed a new action against the applicant and her newspaper. The statement of claim was drafted on plain paper and contained no reference to Mr Tkach’s position or professional affiliation. Mr Tkach claimed that the following extracts in the article of 16 November had damaged his honour and reputation: “...the purpose of the claim [was] to prevent a reconstruction of the attic. Undertaken on legal grounds in accordance with a resolution of the head of the Tsentralniy district. The first attempt missed the target: the court did not grant the action. But when a subsequent action was filed and her husband – the prosecutor of the Moskovskiy District Mr Tkach – began to show up at the hearings, the judgment was made in [Mrs Tkach’s] favour... But here is the issue: had he been a pensioner, just like his neighbour, the action would have never been granted.” [“Смысл заявления – запретить реконструкцию чердака. Законно начатую согласно постановлению главы Центрального района. С первой попытки цель не была достигнута – суд не удовлетворил просьбу. Но когда был подан следующий иск и на заседаниях стал появляться ее муж – прокурор Московского района Ткач – решение вынесли в ее пользу... Но ведь суть в чем: если бы он был пенсионером, как его сосед, иск не был бы выигран.“] The applicant submits that between May and December 2000 Mr Tkach lodged in total six actions against her and the Citizen, of which four were lodged on behalf of the prosecutor’s office and the remaining two in Mr Tkach’s own name. On 19 December 2000 the applicant lodged a counterclaim against Mr Tkach. The applicant submitted that Mr Tkach’s statement “No journalist should be allowed to make [the living conditions] of a prosecutor the subject of a public discussion” had violated her right to freedom of expression and claimed compensation for non-pecuniary damage. On 24 January 2001 Mr Tkach asked the court to leave the statements of claim lodged on behalf of the prosecutor’s office without examination because he had already brought identical claims on his own behalf. On 26 January 2001 the Tsentralniy District Court of Kaliningrad, by an interim decision (определение), granted Mr Tkach’s request. According to the minutes of the court hearing of 26 January 2001, the applicant and her representative did not object to continuation of the proceedings on the basis of Mr Tkach’s statements of claim which he had lodged in his personal capacity. On 19 February 2001 the Tsentralniy District Court of Kaliningrad joined all actions and delivered a judgment. The court found that the contested extracts concerned the quality of Mr Tkach’s living conditions and his role in the civil proceedings. It scrutinised the judgments made in the civil action lodged by Mrs Tkach and the results of the inquiry of the prosecutor’s office (of 6 July 2000) and came to the conclusion that the facts related in the article were untrue. The court found no evidence that Mr Tkach, in his professional capacity, had exercised any undue influence on the courts. The court held: “Therefore, having examined the evidence and assessed the contents of the article as a whole, including its title ‘Evil Flat of Prosecutor Tkach’, and having regard to the fact how a reasonable member of the society would perceive this message, the court comes to the conclusion that the author’s account of the essence of the civil dispute and the author’s expressed opinion do not reflect the actual situation. The word sequences and semantic units in the text, designated by the plaintiff V.N.Tkach, fall within the ambit of the concept of ‘untrue information’. The substantial and semantic contents of the texts in question also infringe the legally protected rights and interests of the plaintiff, in particular, his professional reputation. Under these circumstances the court considers that the claims lodged by Mr Tkach shall be granted.” The court pointed out that the principle of equality of arms would prevent a prosecutor from resorting in the civil proceedings to the special powers conferred on the prosecutor’s office. For this reason the court approved Mr Tkach’s decision to withdraw the four actions which he had lodged on behalf of the prosecutor’s office. The court also accepted the applicant’s counterclaim and held that Mr Tkach’s statement challenged by the applicant encroached on the applicant’s protected journalistic rights. The court did not award compensation for non-pecuniary damage to either party. On 2 March 2001 the applicant appealed against the judgment. On the same day the prosecutor of the Tsentralniy district, Mr S. Myashin, lodged a prosecutor’s appeal (кассационный протест) in the interests of Mr Tkach. On 21 March 2001 the Kaliningrad Regional Court quashed the judgment of 19 February 2001 on procedural grounds and remitted the case for a new examination. On 24 August 2001 the Tsentralniy District Court of Kaliningrad delivered a new judgment in the matter. In substance, the court followed the reasoning of the judgment of 19 February 2001. The court noted that the judgment made by the district court on Mrs Tkach’s claim had been subsequently upheld by the Kaliningrad Regional Court on 7 July 2000 and also scrutinised by the prosecutor in charge of supervision over the lawfulness of court decisions in civil cases who reported on 4 July 2000 that no violation had taken place. The Kaliningrad Regional prosecutor’s office and the Presidium of the Kaliningrad Regional Court refused to lodge applications for supervisory review as no breaches were found and a request for review was therefore unsubstantiated. The court observed that Mr Tkach’s official position was in no way related to the substance of the civil dispute in question; he was not a plaintiff or a party to the dispute and there were no evidence that he had exercised pressure on the court. Moreover, the first deputy mayor of Kaliningrad and the head of the Tsentralniy district administration confirmed that neither Mr Tkach nor his spouse had ever applied for permission to reconstruct their flat or otherwise improve their living conditions at the expense of neighbours Sh. On the other hand, the court had regard to the overwhelming evidence showing that neighbours Sh. maintained the attic in a dilapidated state, flooded Mrs Tkach’s flat and refused access to the attic to housing maintenance workers. The court held that the information in the articles of 27 April and 16 November 2000 was untrue and damaging to the plaintiff’s honour and professional reputation and caused him non-pecuniary damage. It awarded Mr Tkach RUR 3,000 (EUR 114) payable jointly by the applicant and her newspaper. Having examined the applicant’s counterclaim against Mr Tkach, the court found that the statement of claim of 3 May 2000 had been indeed submitted on the prosecutor’s office stationary, yet it did not specifically mention that the claim had been lodged in the State or public interests. The court held that the contested statement should be interpreted as a private person’s position rather than as a prosecutor’s injunction. An application to a court for the protection of one’s rights containing arguments in support of the plaintiff’s cause cannot be held to infringe rights of others. Moreover, the court had regard to the decision of the district court of 26 January 2001 whereby the contested statement of claim had been left without examination. The applicant’s counterclaim was therefore dismissed. The court noted in the judgment that the representatives of the applicant, Messrs Stepanov and Zinovyev, did not attend after a break, on the second day of the hearing, despite having been duly informed of the time and place of the hearing agreed between the parties. The court observed that they failed to show any valid reasons for their absence, the documents on the file were sufficient for examination of the merits and that the other party did not object to continuing the examination in their absence. On 30 August 2001 the applicant appealed against the judgment. In her appeal the applicant submitted, in particular, that the judgment had been given without her or her representatives being present. She explained that the hearing had begun on Thursday, 23 August. At 5.45 p.m. the judge had announced a break. The applicant alleged that she had not been informed when the hearing would resume. On Monday, 27 August, the applicant’s representative arrived at the courtroom only to find that the judgment had been delivered on 24 August. In her appeal the applicant also challenged the merits of the judgment. On 10 October 2001 the Kaliningrad Regional Court upheld in substance the judgment of 24 August 2001. However, the court reduced the amount of the award to RUR 250 (EUR 9) for the applicant and to RUR 500 (EUR 18) for the Citizen. The court reasoned its decision to reduce the award as follows: “... the extent of the applicants’ liability for dissemination of untrue information is insignificant because the judicial dispute with Mr and Mrs Sh. concerning the attic had indeed taken place, and the dissemination of damaging and inaccurate information is a result of incorrect, erroneous evaluation of the circumstances of that dispute.” The court also found that the applicant and her representative had been duly notified that the hearing would resume at 10.30 a.m. on 24 August and their consent had been noted in the transcript of the hearing on 23 August. On 1 November 2001 and 6 February 2002 Mr Tkach sent a request to the Head of the Town Council (председатель городского Совета депутатов) to impose a disciplinary sanction on the editor-in-chief of the Citizen and the applicant herself with a view of their future dismissal. The sanction was to be imposed for dissemination of untrue information. On 18 April 2002 the first deputy prosecutor of the Kaliningrad Region, Mr Tyapyshev, sent a “request to remedy the violation” (представление об устранении нарушения) to the editor-in-chief of the applicant’s newspaper. The prosecutor requested, inter alia, a decision to apply disciplinary sanctions on the applicant in connection with her having disseminated the information damaging the reputation of the prosecutor of the Moskovskiy district, Mr Tkach. On an unspecified date the applicant, her former representative Mr Stepanov and the editor-in-chief of the newspaper lodged a civil action against Mr Tkach for the protection of their honour, dignity and professional reputation and compensation for non-pecuniary damage. They submitted that at the oral hearing on 23 August 2001 in the Tsentralniy District Court of Kaliningrad and in his written submissions to that court Mr Tkach referred to them as “slanderers” who “badgered” him by publishing “ravings” about a non-existent problem and wrote letters to the authorities insisting that the applicant and the editor be dismissed. On 17 April 2002 the Tsentralniy District Court of Kaliningrad granted the defamation action lodged by the applicant and her colleagues and ordered Mr Tkach to pay RUR 250 (EUR 9) to each of the applicant and Mr Stepanov. On 5 June 2002 the Kaliningrad Regional Court upheld, on Mr Tkach’s appeal, the judgment of 17 April 2002. On 25 November 2002 the Presidium of the Kaliningrad Regional Court refused the application for supervisory review lodged by the acting prosecutor of the Kaliningrad Region against the judgment of 17 April 2002. On 12 November 2002 the Tsentralniy District Court of Kaliningrad granted yet another defamation action lodged by the applicant against Mr Tkach in connection with the letters which Mr Tkach had sent to the Mayor of Kaliningrad and to the Head of the Town Council. In these letters Mr Tkach requested that the municipal officials stop the publication of “slanderous” articles in the newspaper owned by the town administration. The court ordered Mr Tkach to pay RUR 250 to the applicant. Article 29 of the Constitution of the Russian Federation guarantees freedom of ideas and expression, as well as freedom of mass media. Article 152 of the Civil Code of the Russian Federation provides that an individual may seize a court with a request for refutation of information (сведения) damaging his or her honour, dignity or professional reputation unless the person who disseminated such information proves its accuracy. The individual may also claim compensation for losses and non-pecuniary damage sustained as a result of dissemination of such information. The Code of Civil Procedure of the RSFSR (in force at the material time) provided as follows: “A prosecutor may bring to a court a claim for the protection of rights and lawfully protected interests of other persons or enter the proceedings at any stage, if it is required for the protection of State or public interests or rights and lawfully protected interests of citizens. The participation of a prosecutor in civil proceedings is mandatory in the cases where the law so provides or where the necessity of his participation in a specific case has been recognised by the court. The prosecutor who participates in the proceedings may study the case materials, bring challenges, produce evidence, take part in the examination of evidence, lodge motions, state his opinion on issues arising in the course of the proceedings and on the merits of the case as a whole, as well as perform other procedural actions provided for by law. The prosecutor’s abandoning of a claim lodged for the protection of interests of another person does not impair that person’s right to have his case examined on the merits.” | 0 |
dev | 001-109741 | ENG | ROU | CHAMBER | 2,012 | CASE OF C.A.S. AND C.S. v. ROMANIA | 2 | Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Procedural aspect);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life;Respect for private life);Non-pecuniary damage - award | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi | 6. The applicants, son and father, were born in 1990 and 1954 respectively and currently live in Iasi. 7. From January 1998 to April 1998, the first applicant, who was then a seven year-old boy, was allegedly subjected to repeated rape and violence by P.E. 8. In January 1998, the child was followed home from school by P.E. In front of the applicant’s family’s apartment, P.E. grabbed the key from his hand, opened the door and forcefully pushed the boy inside. He hit the child several times in the stomach. He pulled the applicant’s clothes off and tied his hands and legs and gagged him with strips of white cloth that he had taken out of his trouser pocket. Then P.E. dragged the boy into the kitchen, removed a piece of furniture from against the wall and placed it near the couch. He bent the child over the furniture and sexually abused him. He then removed the gag and forced the child into oral sex. P.E. hit the applicant again several times in the stomach, head and genitalia, untied him and told him to put his clothes on. He threatened the child with a knife and warned him that he would kill him if anyone found out what had happened. 9. The first applicant was too scared to scream during the assault. 10. The abuse continued during the following months, several times per week. At a certain point, P.E. made a copy of the applicant’s key so he could enter the apartment. Sometimes he would wait for the child inside, sometimes he came with a dog and once with other persons, including two minor children. Before leaving the apartment, P.E. sometimes stole food and small sums of money. 11. Eventually the applicant told his brother and father about what was happening to him. 12. After the events the first applicant changed school and in October 2005 the family finally moved from Bacău to Iaşi, following the advice of the school psychologist. 13. The Government did not contest the description of the facts by the first applicant. 14. On 27 April and 4 May 1998 on behalf of his son, the second applicant reported the sexual abuse and violence inflicted on the child to the Bacău Police. He accused P.E., S.P. and L.I.D. He reiterated his complaints on 18 and 28 May, 4, 8 and 9 June and on 19 July 1998. 15. The police started investigating the case. 16. On 18 May 1998, at the request of the investigators, the first applicant underwent a medical examination at the Bacău Clinic. The record noted: “... healing anal lesion and hypotonia of the anal sphincter. No signs of violence on the body ... The lesions necessitate 16-18 days of medical care and could have been caused by anal intercourse.” A medical certificate issued on 19 May 1998 at the request of the police, summarised the findings of the examination. 17. On 12, 15 and 29 June 1998 P.E. gave statements to the police. He claimed that he had not been in the area during that period, and that he did not know the applicants’ family. He had only been in the building once, on New Year’s Eve, for approximately ten minutes. He admitted that he used to take his sister’s dog out for a walk but he had not done so in a while; during the time in question he had been training a similar dog, in the afternoons, from 5 p.m. to 7 p.m. During a polygraph test, P.E. showed simulated behaviour when asked whether he had had sexual intercourse with the first applicant. S.P. and L.I.D. denied any participation in the abuse. 18. The first applicant was interviewed several times by the investigators. He gave details about the facts. His statements were recorded on 19 June 1998, 12 October 2001, 31 May 2002 and 25 March 2003. In some of the interviews he declared that he had told his brother and father about the abuse, but in others he stated that he had not mentioned anything to anyone. In his first statement he also told the police that the day after he had told his father about the abuse, his parents had allowed him to return on his own from school and he had remained alone in the apartment after school. 19. The second applicant gave statements to the investigators, relating the facts as his son had described them. 20. On 15 December 1999 the first applicant’s mother declared that she had suspected something was going on as her son’s voice on the phone had sometimes been trembling and as she had sometimes found the house untidy and litter in the bathroom, but that she had thought the children were responsible. Before the prosecutor she supplemented her statements and stated that during that time she had noticed that food and money had disappeared from the house. 21. The first applicant identified P.E. in a line up at the police headquarters. 22. Several other witnesses were interviewed by the police, including neighbours and acquaintances. R.M., the neighbour from upstairs, stated that she had no knowledge of what had happened in the applicants’ home. A few days later she changed her statements and declared that she had seen a man who fitted P.E.’s description entering the applicants’ apartment with a dog during the period in question. She explained that she had been afraid that if she talked about what she had seen, the neighbours would have thought she had been spying on them. During the investigations and court proceedings R.M. changed her statements, claiming both to have seen P.E. entering the victim’s apartment several times, between February and March, and to have seen him entering only once. 23. On 10 January 2000 the police confronted R.M. and P.E. They both maintained their previous statements. 24. B.V. informed the police that at the second applicant’s request, he had followed the applicant to school and home a few times in April 1998. He had noticed P.E. in the vicinity several times, and on 22 April 1998 had seen him forcing the first applicant into the apartment. R.I., R.M.’s adolescent son, stated that he had seen P.E. entering the victim’s home from January to April, sometimes with a dog. On 27 June 1998 the police organised a confrontation between R.I. and P.E. R.I. maintained that he had seen P.E. entering the apartment with the victim and then had heard the child scream. P.E. denied having seen R.I. or having abused the first applicant. 25. The investigators also searched the applicants’ and P.E.’s homes, but found no further evidence to support the accusations. They checked the record of calls made from the applicants’ telephone during the period under investigation. They also checked and confirmed that the upstairs neighbours could see, from the hallway, who entered the applicants’ apartment. 26. During the investigations the first applicant underwent several medical and psychiatric evaluations in the presence of his father. 27. On 1 February 2000 a new medical examination by the Bacău Laboratory of Forensic Medicine, ordered by the police, confirmed the findings of the expert examination of 18 May 1998. The doctors considered that it was impossible to tell whether the perpetrator had been an adult or a minor. They concluded that the lesions could only have been caused by repeated sexual abuse. 28. On 16 June 2000 the Prosecutor’s Office attached to the Bacău District Court decided to discontinue prosecution of P.E. and not to prosecute S.P. and L.I.D. The second applicant objected. 29. On 27 July 2000 the prosecutor at the Bacău District Court allowed the objection and sent the case back to the police for further investigation. 30. On 28 February 2001 the Prosecutor’s Office attached to the Bacău District Court again decided to discontinue the prosecution. On 5 September 2001 the second applicant’s objection was allowed by the Prosecutor’s Office attached to the Supreme Court of Justice. The latter sent the case to the District Court prosecutor and ordered him to continue the investigation. 31. On 7 March 2002 the prosecution file was sent to the Prosecutor’s Office attached to the Bacău County Court with an instruction to continue the investigation. 32. On 16 September 2002 the prosecutor at the Bacău County Court discontinued the prosecution of P.E. and decided not to prosecute S.P. and L.I.D. on the ground that they had not committed the crimes. It was also decided to continue the investigation in order to identify the criminals. 33. The second applicant appealed against the decision. On 11 November 2002 the Prosecutor’s Office attached to the Bacău Court of Appeal reversed the decision. 34. On 8 April 2003, the prosecutor at the Bacău County Court committed P.E. to trial for rape and unlawful entry of the victim’s home (violare de domiciliu). It was also decided not to prosecute S.P. and L.I.D. The first applicant sought civil damages in the amount of 300,000,000 Romanian lei. 35. During this period some witnesses were brought in again for interviews and a new expert report was drafted concluding that the anal lesions suffered by the first applicant may have been produced ten to twelve days before the expert examination of 19 May 1998. On 31 March 2002, the second applicant refused to subject his son, the first applicant, to another psychiatric evaluation. 36. Throughout the investigation and prosecution, the second applicant complained several times about the length of the proceedings. His complaints were dismissed by the Prosecutor’s Office attached to the Bacău District Court on 16 August 1999 and 29 February 2000. On 12 July 2002 the Bacău County Police answered a similar complaint, outlining the latest procedural steps taken in the case. 37. In addition, on 22 November 2001 the second applicant complained that he, his family and some of the witnesses had received threats from P.E. On 8 November 2004 P.E. threatened the applicants with retaliation. They reported the incidents to the police. 38. On 20 April 2004 the second applicant complained about the prosecutor’s decision not to prosecute S.P. and L.I.D. On 21 May 2004 the Bacău District Court dismissed the complaint. The decision became final as the parties did not appeal against it. 39. The case was initially referred to the Bacău County Court. However, on 27 May 2003 the County Court changed the legal classification of the crimes and sent the case to the District Court. It noted that at the time when the facts occurred, males were not recognised as potential victims of rape. Furthermore, at the time of the investigations, same-sex relations had been decriminalised. Therefore the facts under investigation could only be classified as the crime of “sexual perversion” and “sexual corruption of a minor”, which were under the jurisdiction of the district courts. The Bacău District Court started the examination of the case. On 13 May 2003 the first applicant gave a detailed description of the facts. P.E. denied having committed any crime against the applicant. 40. In September 2003 the first applicant’s older brother gave a statement to the court. He related what his brother had told him about the abuse. He further stated that around that period (January to April 1998) his brother’s behaviour had changed, he had refused to eat, had constantly been scared and had sometimes had blood on the back of his underpants. He declared that their mother had also noticed those blood stains. 41. The first applicant’s mother admitted that neither she nor her husband had taken time off work to accompany the child and see what had happened, although she had noticed the changes in his behaviour and sometimes even physical signs of potential abuse. 42. Several witnesses were interviewed by the court, including the neighbours R.I. and R.M., as well as S.P. 43. Between 20 December 2002 and 25 March 2003, the first applicant underwent a psychological evaluation. The final report revealed that he showed anxiety when shown his alleged aggressor’s image, uncertainty and social isolation; that he wished to have the routine of a “normal child”; and that he had a tendency to exaggerate and invent things, common to sufferers of trauma caused by such violence, especially children. 44. On 3 June 2003 the second applicant complained about the length of the proceedings and about P.E.’s request for release. On 11 August 2003 he complained that P.E. had been released from detention. 45. On 17 November 2003 the first applicant underwent a psychiatric evaluation in Iaşi Hospital No. 7. The examination commission noted that he was scared, insecure, had difficulty concentrating and showed the frustration associated with the experience of not being believed by others. 46. On 5 May 2004 the Bacău District Court acquitted P.E., on the ground that the crimes had not been committed by him. 47. The court noted in particular that the parents had failed to notice the change in their child’s behaviour and to notify the authorities in good time, but rather had waited until after the abuse had been going on for some time. The court also observed that the descriptions of the facts given by the first applicant and the witnesses had not been accurate and differed in the details and pointed to the fact that the second applicant had tried to influence some of the witnesses to give statements against P.E. The court also attached importance to the fact that the searches performed during the criminal investigation had revealed no traces of P.E.’s presence in the victim’s apartment or any evidence in P.E.’s apartment to support the accusation against him. Lastly, the court considered that the findings of the medical report were not conclusive as to P.E.’s guilt. 48. On 4 October 2004 the Bacău County Court dismissed the appeals lodged by the prosecutor and the applicant against the judgment given by the District Court. The County Court found that there were contradictions in the statements given by the parties and witnesses. It acknowledged that such contradictions may have been caused by the time that had lapsed between the events and the examination of evidence by the courts, but considered that the length of the investigations had not been the main cause of the discrepancies. Accordingly, it noted that from the beginning of the investigation the second applicant and the witnesses had given contradictory descriptions of the aggressor in their various statements and considered that some of the witnesses had been dishonest and that the victim’s father had tried to influence several individuals to testify against P.E. The court also considered that the police line up had not been carried out properly, as the persons chosen to stand with P.E. had differed in physical appearance, in particular their height, length of hair, and posture. It also noted that only one family from the whole block of flats had heard the child screaming. The court was concerned by the fact that despite the alleged physical evidence of abuse (blood stains for example) and other odd occurrences around the house (missing food, moved furniture), the parents had waited a long time before reporting the alleged abuse to the police. Lastly, it noted that his psychological profile indicated that the first applicant was prone to exterior influence and fantasizing, and considered that he might have “put his parents on a false track, either because he did not know who the aggressor was or because he wanted to hide the latter’s identity”. On 20 January 2005 the Bacău Court of Appeal dismissed, by two votes to one, the appeals in cassation lodged by the prosecutor and the applicant. It reiterated the arguments put forward by the County Court. The dissenting judge argued that the evidence in the file was sufficient to convict P.E. for sexual corruption and unlawful entry. 49. At the date when the abuse against the first applicant occurred, the relevant provisions of the Criminal Code read as follows: “(1) Sexual intercourse with a female through coercion or taking advantage of her incapability of defending herself or of expressing her will, is punishable by three to ten years of imprisonment. (2) The sentence will be from five to fifteen years if: (a) the act was committed by two or more than two persons together; ... (3) The sentence will be from ten to twenty years if the victim is not yet fourteen years old ...” “(1) Sexual intercourse with a female who has not yet reached fourteen years of age is punishable by imprisonment of from one to five years.” “(1) Sexual intercourse between persons of the same sex, carried out in public or which causes a public scandal, is punishable by imprisonment of between one and five years. (2) Sexual intercourse by an adult with a juvenile of the same sex is punishable by imprisonment of between two and seven years and loss of certain rights. (3) Sexual intercourse with a person of the same sex who is incapable of defending him or herself or of expressing his or her will, or which is performed through coercion, is punishable by imprisonment of between three and ten years and loss of certain rights.” “(1) Acts of sexual perversion committed in public which cause a public scandal are punishable by imprisonment from one to five years.” “(1) Acts of an obscene nature committed to a minor or in his or her presence are punishable by imprisonment from three months to two years or by a fine.” 50. Articles 197 and 198 have been amended successively in order to recognise males as potential victims of rape and statutory rape, by Law no. 197/2000, which entered into force on 15 November 2000 and by Emergency Ordinance no. 89/2001, which entered into force on 26 June 2001. The latter Ordinance also decriminalised consenting same sex intercourse. 51. On 28 September 1990 Romania ratified the United Nations Convention on the Rights of the Child (“the CRC”), in force since 2 September 1990. The CRC stipulates that the best interests of the child and his or her dignity shall be a primary consideration in all actions concerning children (Article 3). 52. The CRC urges Member States to take all appropriate measures to protect children from all forms of violence, including sexual abuse, and to provide for the recovery and social reintegration of victims. The relevant articles read as follows: “1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. 2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.” “States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent: (a) The inducement or coercion of a child to engage in any unlawful sexual activity;” “States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.” 53. The Committee on the Rights of the Child interpreted the text of the CRC in its General comments. Its latest General comment no. 13 (2011) on the right of the child to freedom from all forms of violence is aimed at guiding State parties in understanding their obligations under Article 19 of the CRC, building on existing documents and reflecting on the evolution of the protection in question. The Committee acknowledged the efforts of the States to prevent and respond to violence. It nevertheless found that the States were lagging behind in their obligations: “§ 12 ...In spite of these efforts, existing initiatives are in general insufficient. Legal frameworks in a majority of States still fail to prohibit all forms of violence against children, and where laws are in place, their enforcement is often inadequate.” The Committee expresses the view that States are under a “strict obligation” to undertake all appropriate measures to fully implement this right for all children (paragraph 37 of the General comment). Among the State obligations, the Committee identified the need to: review and amend domestic legislation in line with Article 19 of the CRC; ensure protection to child victims and effective access to redress and reparation; enforce law in a child-friendly way; and provide for counselling support (paragraphs 41-44 of the General comment). The Committee develops further on the content of the “protective measures”, stressing the importance of prevention, the need for an easily accessible report mechanism, the importance of rigorous and child-sensitive investigation and of effective and child-friendly justice where due process must be respected (in particular paragraphs 45-58 of the General comment). 54. On 25 October 2007 the Council of Europe, recognising that the well-being and best interests of children are fundamental values shared by all member States, adopted the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse urging the Member States to adopt measures to protect children from any form of abuse and to put in place a system capable of punishing any such acts. On 17 May 2011 the respondent State ratified that Convention which entered into force in respect of Romania on 1 September 2011. | 1 |
dev | 001-94220 | ENG | TUR | CHAMBER | 2,009 | CASE OF HAPESHIS AND OTHERS v. TURKEY | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property | David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä | 7. The applicants, who are siblings, were born in 1959, 1942, 1947 and 1944 respectively. The first applicant (who is a Cypriot and British citizen) lives in London; the second, third and fourth applicants all reside in Larnaca. The second applicant is a Cypriot citizen, while the third and fourth applicants are British citizens. 8. On 13 August 1974, as the Turkish troops were advancing, the applicants' father left the village of Ayios Avrosios in the District of Kyrenia, where he owned the following immovable properties: (a) plot of land with trees in Kapsala (plot no. 12/7/5/1, sheet/plan 13/15, registration no. 14426, area: hectares (h.) 3, decares (d.) 9, square metres (m²) 818); (b) plot of land with trees in Glifhonera (plot no. 12/7/3, sheet/plan 13/15, registration no. 13911, area: h. 5, d. 6, m² 105); (c) plot of land with trees in Glifhonera (plot no. 12/7/4, sheet/plan 13/15, registration no. 13912, area: h. 5, d. 5, m² 27); (d) plot of land with trees in Apati (plot nos. 13/4 and 15/3, sheet/plan 13/31, registration no. 10106, area: d. 2, m² 342); (e) plot of land with trees in Spati (plot no. 250/3, sheet/plan 13/23, registration no. 7182, area: d. 3, m² 345); (f) plot of land with trees in Apati (plot no. 11/6, sheet/plan 13/31, registration no. 10097, area: m² 437); (g) plot of land with trees in Apati (plot no. 11, sheet/plan 13/31, registration no. 10087, area: d. 4, m² 14); (h) plot of land in Trachonas (plot no. 579, sheet/plan 13/22, registration no. 5927; area: d. 1, m² 673). 9. In support to their claim that their father was the owner of the above-mentioned plots of land, the applicants submitted copies of the title deeds and of the relevant certificates of ownership. 10. On 17 August 1974 the applicants' father tried to visit his property but was arrested by Turkish soldiers. He was released on the same day, since he was a British citizen. 11. On 19 May 1991 the applicants' father died. According to his will, dated 18 May 1988, the plot described under paragraph 8 (a) above was to be inherited by the first applicant and the other plots were to be inherited by the four applicants in equal shares. On 30 July 1991, Mr T. Michaelides was appointed as executor of the will of the applicants' father. The applicants registered their titles with the Department of Lands and Surveys of the Republic of Cyprus on 10 July 1995. The first applicant tried, via the British consular authorities, to visit the properties at issue, but did not obtain permission. 12. In a letter of 2 September 2003, the applicants informed the Court that Turkey was planning to construct a highway at the edge of their properties and that an area of m² 6,000 had been taken for this purpose. The applicants had not been consulted on the matter and no compensation had been offered to them. | 1 |
dev | 001-102908 | ENG | BGR | CHAMBER | 2,011 | CASE OF KASHAVELOV v. BULGARIA | 3 | No violations of Art. 3 (substantive aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - award;Pecuniary damage - claim dismissed | Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Pavlina Panova;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 5. The applicant was born in 1964 and is currently serving a life term in Sofia Prison. 6. On 5 August 1996 the applicant was arrested on suspicion of having abducted a person. On 14 August 1996 he was charged with that offence. In September 1996 he was charged with murdering three police officers, and on 4 June 1997 with at least ten other offences. 7. On an unspecified date in 1998 the prosecuting authorities submitted an indictment against the applicant to the Sofia City Court. However, on 18 September 1998 the judge rapporteur referred the case back to them, citing irregularities in the manner in which some of the charges and evidence had been presented to the applicant. 8. On 12 October 1998 the prosecuting authorities submitted to the Sofia City Court an indictment against the applicant and three others. The charges included the murder of three police officers, several attempted murders, robberies, thefts, unlawful deprivation of liberty, and unlawful possession of firearms. On 29 December 1998 the judge rapporteur set the case down for trial over several days in May 1999. 9. The Sofia City Court held at least seven hearings between May 1999 and 8 March 2000, and on the latter date convicted the applicant of aggravated murder, hooliganism, attempted armed robbery, deprivation of liberty and unlawful possession of firearms, and acquitted him of the other charges. It sentenced him to life imprisonment without commutation and ordered that he should begin serving his sentence under the strictest prison regime (the so-called “special regime” – see paragraph 21 below). 10. On appeal, the Sofia Court of Appeal held at least five hearings, the last of which took place on 14 January 2002. On 10 February 2003 it partly quashed the lower court's judgment, acquitting the applicant of one of the charges of attempted armed robbery and of the charges of unlawful possession of firearms, and re-qualifying one of the other charges. It upheld the remainder of the judgment, including the applicant's sentence. 11. On 27 February 2004 the Supreme Court of Cassation partly quashed the Sofia Court of Appeal's judgment and remitted the case to that court for reconsideration of the charges of attempted robbery. It upheld the remainder of the judgment, including the applicant's sentence. 12. On remittal, the Sofia Court of Appeal held at least two hearings. On 31 August 2004, it upheld the Sofia City Court's judgment, acquitting the applicant of the charges of attempted armed robbery. No appeal was lodged, and the judgment became final on 6 October 2004. 13. On 7 February 1997 the applicant was moved to the detention centre of the National Investigation Service. On 2 December 1997 he was transferred to Sofia Prison. Between 1997 and 2004, he was held there as a detainee awaiting the final determination of the criminal charges against him. Since 17 November 2004, his stay in the prison has been continued on the basis of his final sentence of life imprisonment. 14. On 4 December 1997 the prison's governor, relying on the relevant regulations (see paragraphs 17 and 18 below) and having regard to a note in which the investigating authorities had described the charges against the applicant, his character, and their assessment of the risk that he could pose to prison staff, ordered that he be placed within an isolated group of prisoners subjected to stringent security measures and be deprived of the right to take part in communal activities. In a follow-up decision of 14 May 1999 the governor ordered that the applicant be handcuffed each time he was separated from that group. According to the Government, the applicant was being handcuffed only when taken out of the premises occupied by the group – for outdoor activities, visits to the prison doctor, dentist or library, or receiving visitors or lawyers. He was allowed to exercise in a special secluded yard. The applicant contended that he was being handcuffed each time when taken out of his cell. 15. The applicant alleged that he was held alone in a locked cell measuring 1.9 by 4.05 metres. He could leave the cell only for his daily onehour walk. During the first eight or nine months in prison he took his walk alone. After that, he was allowed to join one or two other life prisoners, but was prohibited from talking to them. Since October 2001, he was again taking his daily walks alone, in a concrete enclosure covered with a wire-net and measuring 6.7 by 11 metres. The only other times when the applicant was allowed out of his cell were the scheduled visits to the sanitary facilities, for five to ten minutes twice a day. According to him, those were the only occasions when he could stock up on drinking water. Later, he was allowed to spend more time using the sanitary facilities. The applicant further alleged that during the first six months of his stay in prison he was being deprived of one of his daily meals once every four days, and for an initial period of about a year and a half he was not allowed to use his own bed sheets and pillows. 16. The Government disputed those allegations, saying that the applicant had not been subjected to serious isolation inside his prison group. They pointed out that, save for a limited number of restrictions flowing from the “special regime” to which the applicant was subjected, he enjoyed the opportunities available to all other inmates, such as the possibility to work, access to free health and dental care, access to the prison library and temple, receiving visitors, parcels, telephone calls and correspondence, etc. They cited a note drawn up by the prison's governor, which said the following: “[The applicant] is even now extremely hostile towards the legal order of the Republic of Bulgaria. He does not accept his conviction and sentence, and considers the criminal proceedings against him to be unfair and biased. He shows complete disregard to others, and acts rudely and arrogantly when approached. Extremely mistrustful, suspicious and hostile towards all prison staff. His irascibility, undisguised cruelty and spitefulness, and constant nervous tension make him especially dangerous and unpredictable. His attitude towards the other inmates in his group does not differ markedly from the one described above. He refuses to socialise with others, hates everything and everyone. He enters into sporadic contacts with the group's hygienist when necessary. Refuses to take part in communal activities. On several occasions he was offered work, which he pointedly turned down. When taken out for visits and in the presence of larger groups of people, he often loudly makes negative remarks about the courts and the prison administration. He often rehearses his 'defence speech' naked in his cell.” 17. The applicant disputed those allegations and pointed out that the governor did not cite any specific facts to support them. 18. At the material time the regime of pre-trial detainees kept in prisons was governed by regulations issued in 1993 (Наредба № 12 от 15 април 1993 г. за положението на обвиняемите и подсъдимите в местата за лишаване от свобода). In May 1999 those were superseded by similar regulations (Наредба № 2 от 19 април 1999 г. за положението на обвиняемите и подсъдимите с мярка за неотклонение задържане под стража), which remained in force until September 2006. 19. Regulation 15(1)(3) of the 1993 regulations, superseded by regulation 14(3) of the 1999 Regulations, provided that detainees could be placed in a locked cell and be deprived of the right to take part in communal activities if considered a security risk. That measure could be imposed by the prison's governor, who had to have regard to the detainee's personal characteristics and psychological state, and to the dangerousness of the offence in relation with which he or she had been detained. Regulation 15(3) in fine of the 1993 regulations, superseded by regulation 15 of the 1999 regulations, provided that detainees subjected to such measures had to be kept isolated from the general prison population each time they were taken out of their cells, for court transfers, medical treatment, receiving visitors, outdoor activities, etc. 20. Until June 2009 the regime of prisoners serving a life sentence was governed by the Execution of Punishments Act (1969) (Закон за изпълнение на наказанията) and the regulations for its implementation. In June 2009 and February 2010 these were superseded by, respectively, the Execution of Punishments and Pre-Trial Detention Act (Закон за изпълнение на наказанията и задържането под стража) and the regulations for its implementation. 21. The regime of life prisoners was governed by sections 127a-127e of the 1969 Act, added in 1995. Section 127b(1) provided that when imposing a life sentence the court had to order the prisoner's placement under the strictest regime, called “special regime”. Individuals placed under that regime were to be kept in locked single cells and subjected to heightened security and supervision (regulation 56(1) of the implementing regulations). Those provisions were maintained in 2009 Act (sections 61(1), 71(2) and 198(1)) and the 2010 regulations (regulation 213). Regulation 213 additionally provides that life prisoners can take part in communal activities only with prisoners of the same category. Under regulation 214, they have to be kept isolated from the general prison population even when taken out of their cells for transfers, medical treatment, visits, outdoor activities, etc. 22. Section 127b(2) of the 1969 Act, superseded by section 198(1) of the 2009 Act, provided that, if they had good conduct, after five years life prisoners could be placed under a lighter regime. The time spent in pre-trial detention does not form part of that period (regulation 167(2) of the implementing regulations of the 1969 Act, superseded by regulation 218 of the implementing regulations of the 2009 Act). The decision to place a life prisoner under a lighter regime is taken by a commission consisting of prison staff and various other officials (section 17 of the 1969 Act, superseded by sections 73 and 74 of the 2009 Act). Under section 58 of the 1969 Act, the commission's decisions could be challenged by the Minister of Justice. Under section 74(2) of the 2009 Act, only the decisions to place a prisoner under a stricter regime can be challenged, by way of judicial review. Once under a lighter regime, life prisoners can, under certain conditions, be placed together with the general prison population (section 127b(4) of the 1969, superseded by section 198(2) of the 2009 Act). 23. The CPT has visited Bulgaria seven times. Sofia Prison was visited in 2006 and 2008. 24. The report on the 2006 visit (CPT/Inf (2008) 11) says: “101. There were 15 lifers at Sofia Prison at the time of the visit; two were being accommodated in the mainstream prison population, while the rest were held in a separate unit in the section used for disciplinary isolation ... Lifers in the separate unit were accommodated in single cells measuring 7.5 m²; the cells had a small barred window, set too high in the wall to afford a view out. There was integral sanitation which reduced the limited space in the cell; however, the cells would provide adequate sleeping accommodation for one person provided these prisoners were offered a varied programme of out-of-cell activities during the daytime. However, in contrast to the situation observed in [two other prisons], life-sentenced prisoners in Sofia Prison lacked communal activities. They were locked up in their cells except for periods of outdoor exercise (1.5 hours like the rest of the inmates at Sofia Prison), which all but four lifers took together. The lack of group activities is not justifiable in security terms, given that life-sentenced prisoners already exercise together. The delegation was told of plans to set up a group room for association and other activities for lifers, which would be opened in the near future. In-cell activities included watching TV and reading books from the library and a daily newspaper; further, nine lifers worked in their cells (making gift bags). One prisoner interviewed by the delegation complained that he had been refused permission to have a personal computer in his cell to do a computer literacy course. The four lifers who did not join the others for communal exercise were segregated under orders reviewed every 6 months. Whenever they were outside the cell, they were handcuffed, including for exercise which they took alone in a secure yard. In the CPT's opinion, there can be no justification for handcuffing a prisoner exercising alone in a secure yard, provided there is proper staff supervision. The Committee recommends that the Bulgarian authorities review their current policy as regards the handcuffing of the above-mentioned life-sentenced prisoners, in the light of these remarks.” 25. The report on the 2008 visit (CPT/Inf (2010) 29) says: “74. [A]t the time of the visit, there were 18 life-sentenced prisoners at Sofia Prison. Three of [them] had been integrated into the mainstream prisoner population, while the remainder were being held in a separate unit (Group 1). 75. Material conditions of detention in the lifer unit had remained basically unchanged since the 2006 visit ... The installation of integral sanitation in the cells, with a shower head over the toilet and access to hot water all day, was a positive feature; however, as a result, prisoners had less occasions to leave their cells and interact with staff. Some of the lifers had their own television sets and play-stations in their cells. At the time of the 2006 visit, lifers had had hot plates in their cells, to cook food, which increased their sense of independence and helped to pass the time. The hot plates had reportedly been withdrawn a few weeks before the visit for safety reasons, and lifers had immersion coils for heating water. 76. As regards activities, one notable change since the 2006 visit was the entry into operation of a social room (“club”) in the lifer unit. This good facility was decorated in pleasant light colours and furnished with bookcases, a chess table with two chairs, a larger table with five chairs, a cupboard with games including a backgammon board, a television set with DVD player and a sink. Lifers were divided into three subgroups on the basis of common interests (playing cards, chess, discussing legal matters, etc.) and each group was allowed to use the social room for one hour each weekday. At weekends, there were only the two officers present, which made it difficult to organise activities. Lifers who were willing to work (12 of the 15 in the lifers unit) worked in their cells on the same kinds of piece work as was observed on the 2006 visit (e.g. putting strings on boutique bags). Further, outdoor exercise for one and a half hours per day was offered to all lifers. The delegation noted that a shelter had been provided at one end of the exercise yard. Despite the above-mentioned welcome introduction of a social room, which increased the amount of time spent out of the cells and in association with other prisoners, the daily regime in the lifer unit remained monotonous. The CPT recommends that the Bulgarian authorities strive to enhance the programme of activities provided to life-sentenced prisoners at Sofia Prison, if necessary, by increasing staffing. 77. Staff on the lifer unit indicated that two of the inmates were in their first 5 years of a life sentence and were therefore subject to particular security restrictions. The two lifers were escorted in handcuffs and were not allowed television. It was up to the Director to review the use of handcuffs, but there was no time limit on their use and no regular review period. As already stated in the report on the 2006 visit, the CPT considers that there can be no justification for routinely handcuffing a prisoner within a secure environment, provided there is proper staff supervision. The Committee recommends that the Bulgarian authorities review the policy of handcuffing life-sentenced prisoners when outside their cells. 78. The CPT has in the past expressed its serious misgivings about the current legal provisions whereby lifers are systematically subjected to a strict and segregated regime for an initial period ordered by the sentencing court (i.e. 5 years). This approach runs counter to the generally accepted principle that offenders are sent to prison as a punishment, not to receive punishment. The Committee does not question that it may be necessary for some prisoners to be subject, for a certain period of time, to a special security regime. However, the decision whether or not to impose such a measure should lie with the prison authorities, be based on an individual risk assessment and be applied only for the shortest period of time. A special security regime should be seen as a tool of prison management, and not be made part of the catalogue of criminal sanctions to be imposed by courts. In many countries, lifers are not viewed as necessarily more dangerous than other prisoners; many of them have a long-term interest in a stable and conflict free environment. Therefore, the approach to the lifer management should proceed from individual risk and needs assessment to allow decisions concerning security, including the degree of contact with others, to be made on a case-by-case basis. Whereas lifers should not be systematically segregated from other prisoners, special provision should be made to assist lifers and other long-term prisoners to deal with the prospect of many years in prison. In this respect, reference should be made to Rule 103.8 of the European Prison Rules which states that “particular attention shall be paid to providing appropriate sentence plans and regimes for life-sentenced prisoners”, taking into consideration the principles and norms laid down in the Council of Europe Recommendation on the “management by prison administrations of life-sentence and other long term prisoners”. Pursuant to Bulgarian law, after the initial 5 years of their sentence, lifers are eligible for allocation within the mainstream prisoner population if they have behaved well and have had no disciplinary punishments. However, in practice, only a minority of lifers (3 out of 18 at Sofia Prison) had found their way into the mainstream, some after many years served in the lifer unit. The CPT invites the Bulgarian authorities to build on the success of the “experiment” of integrating some life-sentenced prisoners into the mainstream prison population, which should be considered as an appropriate part of the management of this category of prisoner and reinforced by legislative measures. More generally, the CPT recommends that the Bulgarian authorities review the legal provisions and practice concerning the treatment of life-sentenced prisoners, in the light of the above remarks.” | 1 |
dev | 001-76189 | ENG | TUR | CHAMBER | 2,006 | CASE OF YAYABAŞI v. TURKEY | 4 | Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings | null | 4. The applicant was born in 1946 and lives in Ankara. 5. On an unspecified date in 1990 the General Directorate of National Roads and Highways expropriated a plot of land belonging to the applicant in Ankara in order to build the Ankara Central Motorway. The authorities paid him the value of the land, assessed by a committee of experts, when the expropriation took place. 6. Following the applicant’s request, on 27 June 1995 the Ankara Civil Court awarded him additional compensation plus interest at the statutory rate applicable. 7. On 18 March 1996 the Court of Cassation upheld that judgment. 8. On 18 February 1998 the amount of 4,560,000,000 Turkish liras (TRL) was paid to the applicant. 9. The relevant domestic law and practice are set out in the case of Akkuş v. Turkey (judgment of 9 July 1997, Reports of Judgments and Decisions 1997IV, §§ 13-16). | 0 |
dev | 001-68938 | ENG | DEU | CHAMBER | 2,005 | CASE OF A.L. v. GERMANY | 3 | No violation of Art. 6-2 | null | 4. The applicant was born in 1964 and lives in Germany. He used to run a car rental business. 5. On 3 November 1994 the Limburg Prosecuting Office informed him that it had begun criminal investigations against him and three other persons on the suspicion of insurance fraud. They were suspected of having obtained reimbursement for non-existent car rental costs and of having requested payment for non-refundable kilometres. 6. On 4 November 1994, following the Wetzlar District Court's arrest warrant, the applicant was arrested on the suspicion that he would attempt to hinder the investigation proceedings (Verdunklungsgefahr). 7. On 29 November 1994 the District Court suspended the execution of the arrest warrant on the condition that the applicant cease to have contact with his co-suspects and any of the witnesses involved. 8. On 10 February 1997 the applicant and his co-suspects were indicted for fraud. 9. On 10 March 1997 the District Court revoked the arrest warrant. 10. On 12 January 2000 the Limburg Regional Court provisionally discontinued proceedings with the applicant's consent pursuant to Section 153a § 2 of the Code of Criminal Procedure (see relevant domestic law below) on the condition that the applicant pay a sum of 3,500 DEM to the Association to Aid Criminal Offenders (Verein für Straffälligenhilfe). 11. On 21 March 2000, after the applicant had fulfilled this condition, the Regional Court, sitting as a chamber of three judges, permanently discontinued proceedings against the applicant but refused to grant him compensation for the time spent in detention on remand, finding that such compensation would not be equitable (entspricht nicht der Billigkeit), in particular as the applicant had waived any right to compensation. 12. The applicant appealed against this decision, arguing that he had never waived his right to compensation and that compensation would be equitable, as the criminal proceedings had caused him to lose his source of income and had prevented him from finishing his law studies. 13. By letter to the applicant's counsel of 18 May 2000, the presiding judge of the competent chamber of the Regional Court confirmed that if the proceedings had been pursued, the Regional Court would have opened proceedings against the applicant with regard to parts of the indictment. The applicant would then have been convicted with predominant probability (“Insoweit war auch mit bei weitem überwiegender Wahrscheinlichkeit mit Verurteilung zu rechnen”). In one of the cases of fraud, this predominant probability was based on the submissions of another accused and of a former suspect. In another case, a conviction for fraud was to be expected following the submission of various car rental receipts (“...war schon im Hinblick auf die Einreichung der diversen Mietwagenrechnungen mit einer Verurteilung wegen Betrugs zu rechnen”). 14. On 22 September 2000 the Frankfurt/Main Court of Appeal rejected the applicant's appeal. It noted that granting compensation for prosecution measures lay within the discretion of the competent courts or prosecuting offices. The relevant Section 3 of the Act on Compensation for Prosecution Measures (Gesetz über die Entschädigung für Strafverfolgungs- massnahmen, see relevant domestic law below) was to be seen as an exception to the rule - according to this provision, compensation should be granted in special cases where the execution of provisional prosecution measures was considered to be grossly disproportionate (“grob unverhältnismässig”). This did not apply to the case against the applicant. 15. The Court of Appeal noted that the measures of prosecution instituted against the applicant were originally based on a strong suspicion (dringender Verdacht). If the proceedings had continued, the Regional Court would have opened proceedings against the applicant regarding a certain part of the indictment. The Court of Appeal found that taking into account a remaining suspicion (“verbleibender Tatverdacht”) when deciding on compensation was not in violation of the right to the presumption of innocence under Article 6 of the Convention, as it did not involve the establishment or allocation of guilt, but only constituted an admissible and necessary evaluation of the situation. Legal consequences of a non-punitive character, such as the refusal of compensation for prosecution measures, may be linked to such a remaining suspicion. This remaining suspicion, which the Regional Court took into account when deciding on compensation, was only relevant with regard to the question of whether to open proceedings and of whether the public interest in further prosecution could be overcome. It was not relevant with regard to the actual question of guilt or the probability of a conviction. 16. On 14 December 2000 the Federal Constitutional Court refused to entertain the applicant's complaint against the court decisions and the letter of the Regional Court, finding that the principle of the presumption of innocence did not prevent the establishment and assessment of a remaining suspicion in a decision on the discontinuance of criminal proceedings before a conviction has taken place. It thus also did not prevent courts or prosecuting offices from taking this remaining suspicion into account when deciding on compensation. 17. The presumption of innocence prohibits imposing sanctions with a punitive or de facto punitive effect on an accused whose guilt has not been established in the relevant criminal proceedings. However, in a decision on the discontinuance of proceedings, legal consequences of a non-punitive character may be linked to a remaining suspicion, but it must become sufficiently clear from its reasoning that this does not occur out of the intention to establish or allocate guilt, but out of the intention to describe and assess the state of suspicion (Verdachtslage). This distinction had to be sufficiently expressed in the decision's reasons. In this respect, the context of all the given reasons had to be taken into account. 18. In the light of the above principles, the Federal Constitutional Court found that the impugned decisions were compatible with the German Basic Law. It noted that the Court of Appeal had refused to grant the applicant compensation under Section 3 of the Act on Compensation for Prosecution Measures on the ground that if the proceedings against the applicant had been pursued, the Regional Court would have opened court proceedings against the applicant based on parts of the indictment. This evaluation of the remaining suspicion with regard to the question of the opening of proceedings and overcoming the public interest in pursuing prosecution measures neither contained a declaration on the probability of the applicant's conviction, nor did it contain a criminal allocation of guilt. 19. According to Section 153a of the Code of Criminal Procedure, criminal proceedings involving a less serious criminal offence (Vergehen) may be discontinued subject to certain conditions and instructions (Auflagen und Weisungen). 20. If the proceedings are still in the investigation phase, the Public Prosecutor's Office may, with the consent of the competent court and the accused, provisionally refrain from issuing an indictment relating to an offence and may at the same time order the accused (1) to take measures providing reparation, (2) to pay a sum of money to a charitable association or the Treasury, (3) to take other measures or (4) to make maintenance payments of a particular amount, if such conditions and instructions can remove the public interest in prosecution and if this is not in conflict with the seriousness of the crime (“...wenn diese geeignet sind, das öffentliche Interesse an der Strafverfolgung zu beseitigen, und die Schwere der Schuld nicht entgegensteht”) (Section 153a § 1). 21. If the accused has already been indicted, the court may, with the consent of both the public prosecutor's office and the accused, discontinue the proceedings and impose the same conditions and instructions (Section 153a § 2). 22. Compensation for various prosecution measures is covered by the Act on Compensation for Prosecution Measures (Gesetz über die Entschädigung für Strafverfolgungsmassnahmen). 23. In cases where an accused is acquitted or where the proceedings against him are discontinued or where a court refuses to open the proceedings against him, he is entitled to compensation for damages suffered due to time spent in detention on remand or due to other prosecution measures (Section 2). 24. If the discontinuation of the proceedings is subject to the discretion of the prosecutor' 25. According to the case-law of the Federal Constitutional Court, cases where the proceedings have been discontinued according to Section 153a of the Code of Criminal Procedure also fall under the scope of the above regulations. | 0 |
dev | 001-94077 | ENG | MKD | CHAMBER | 2,009 | CASE OF BOCVARSKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 3 | Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva | 5. The applicant was born in 1958 and lives in Skopje. 6. According to an official note of the Ministry of Finance of 1997, the applicant and Mr Angel Kupev registered Naša Kniga STD (самостоен трговски дукан, “the undertaking”, as opposed to companies incorporated under company law) through which they pursued business activities. On 17 July 1992 they ceased trading through the undertaking. On 8 February 1993 the undertaking was re-registered in the name of the applicant. The undertaking operated until 22 February 1995, when its activities were voluntarily terminated. 7. On 23 June 1993 the Skopje District Commercial Court (Окружен Стопански суд) upheld the undertaking's claim and ordered AD Gazela (“the debtor”) to pay a debt amounting to 1,393,377.70 old Macedonian denars (MKD) plus interest. The court found that the debtor and the undertaking had concluded a framework agreement under which the latter would produce paper products for the debtor. As the debtor had failed to pay for the products made, the court upheld the undertaking's claim. 8. On 10 September 1993 the Macedonia-Skopje Commercial Court (Стопански суд на Македонија), sitting as an appellate court, dismissed an appeal by the debtor and upheld the lower court's decision. On 22 March 1994 the Supreme Court dismissed an appeal on points of law (ревизија) by the debtor and upheld the lower courts' decisions. 9. On 2 October 1993 the undertaking requested enforcement of the judgment debt, proposing the following means of enforcement: transfer of the money due from the debtor's account and an inventory, evaluation and public auction of the debtor's movable and immovable property. On 8 October 1993 the Skopje District Commercial Court granted the undertaking's request and ordered the debtor to pay the debt. On 3 November 1993 it dismissed an objection by the debtor. 10. On 26 November 1993 the District Commercial Court dismissed a request by the debtor for postponement of enforcement. On 25 December 1993 the Commercial Court dismissed an appeal by the debtor and upheld its decision. 11. On 9 June 1994 the District Commercial Court upheld an objection by the debtor and discontinued the enforcement proceedings in so far as they concerned interest. 12. On 2 September 1994 the District Commercial Court ordered the Public Payment Office to require the bank in which the debtor had had its foreign currency account to transfer the balance due to the undertaking's account. It also ordered the bank not to make any payments from the debtor's account to other parties until the undertaking's claim had been completely honoured. The court established that the undertaking had received part of the judgment debt. It further noted that, as there were no other funds available in the debtor's account, on 25 July 1994 the undertaking had requested the court to satisfy its claim from other accounts belonging to the debtor. 13. On 6 October 1994 the undertaking, represented by Mr A. Kupev, and the debtor reached a court settlement (“the 1994 settlement”) concerning the means of securing payment of the remaining balance, which amounted to MKD 21,774,593.00 (844,631 German marks). The undertaking agreed to receive the balance in twelve equal instalments within a year. 14. As the debtor did not pay the debt as agreed, on 27 October 1994 the District Commercial Court ordered an inventory and public auction of the debtor's vehicles. On 30 November 1994 the Commercial Court dismissed an appeal by the debtor and upheld the lower court's decision. 15. On 12 January 1995 the District Commercial Court partly allowed a request by the debtor for postponement of the enforcement in respect of some heavy goods vehicles and a bus. On 29 January 1996 the court ordered the confiscated vehicles to be returned to the debtor as they were necessary for its work. On 29 August 1996 the Skopje Court of Appeal (Апелационен суд) upheld those decisions. 16. On 14 April 1997 the Skopje Court of First Instance (Основен суд) dismissed a request by the debtor to postpone enforcement of the 1994 settlement. 17. On 23 September 1997 the Court of First Instance upheld an objection by the debtor, who had argued that the undertaking had no legal capacity as a creditor in the proceedings as it had ceased to exist. It also stayed the enforcement proceedings and ordered the Public Payment Office to lift the charging orders on the debtor's accounts. It dismissed the applicant's arguments that she was a successor to the undertaking and that there had been a continuity of the undertaking's claims. On 30 April 1998 the Court of Appeal dismissed an appeal by the undertaking as inadmissible. 18. Pending the proceedings described above, on 14 June 1996 the Skopje Municipal Court granted the undertaking's request of 10 January 1996 and issued a charging order on one of the debtor's shops (“the shop”). On 2 September 1996 the Skopje Court of First Instance dismissed an objection by the debtor. On 31 October 1996 the Court of Appeal quashed the lower court's decision and ordered a re-examination of the case. On 21 November 1996 the Skopje Court of First Instance suspended the charging order, as the shop had been exempted from enforcement since it was necessary for the debtor's work. On 24 January 1997 the Court of Appeal quashed that decision and ordered a re-examination of the case. On 7 July 1997 the Court of First Instance dismissed an objection by the debtor. 19. On 18 February 1997 the undertaking requested the court to enforce the claim as established by the 1994 settlement. On 24 February 1997 the Court of First Instance granted the undertaking's request for the sale of the debtor's shop in respect of the principal debt, which had amounted to DM 844,631, together with interest between 11 October 1994 until settlement, plus trial costs. On 19 March 1997 the Court of First Instance partly upheld an objection by the debtor and suspended the enforcement proceedings in so far as they concerned interest. 20. On 12 June 1997 the Court of Appeal allowed an appeal by the debtor and quashed the decision of 19 March 1997. It found that the lower court had failed to determine the debtor's objection as to whether other enforcement proceedings had already been pending between the same parties on the same subject. 21. On 8 July 1997 the Court of First Instance partly upheld an objection by the debtor and suspended the enforcement proceedings in so far as they concerned interest. The order for the sale of the shop remained unaffected. 22. On 12 September 1997 the Court of Appeal dismissed an appeal by the debtor and upheld the lower court's decision. 23. On 26 November 1997 the public prosecutor lodged with the Supreme Court a request for the protection of legality (барање за заштита на законитоста) (“legality review request”) challenging the legality of the lower courts' decisions of 8 July and 12 September 1997. It argued that the 1994 settlement could not be regarded as an enforcement order (извршна исправа) as it had been concluded while the enforcement proceedings were already pending and it had merely concerned the means of enforcing payment of the outstanding debt. The public prosecutor's office further contested, inter alia, the legal capacity of the undertaking in the enforcement proceedings as it had ceased to exist before it had lodged its application for enforcement on 18 February 1997. On 1 December 1997 the undertaking made submissions in reply. 24. On 29 January 1998 the Supreme Court upheld the public prosecutor's legality review request and quashed the impugned decisions. It found that the lower courts had wrongly considered the 1994 settlement to be an enforcement order that could validly be enforced. It instructed them, inter alia, to reconsider the undertaking's legal capacity as a creditor in the enforcement proceedings. 25. On 2 April 1998 the Skopje Court of First Instance upheld the debtor's objection concerning the undertaking's capacity to take part in the proceedings as a creditor. It dismissed the undertaking's application for enforcement and ordered the proceedings to be resumed in the name of the applicant as a creditor. It held that the applicant had been the last person who had pursued business activities through the undertaking before it had ceased to exist. As the undertaking did not have the capacity of a legal entity, all its rights and obligations, including its claim against the debtor, had to be considered to have been transferred to the applicant, as the physical person who had run it. 26. On 11 June 1998 the Skopje Court of Appeal upheld the lower court's decision, finding no grounds to depart from the reasons given. 27. On 22 September 1998 the public prosecutor submitted a fresh legality review request to the Supreme Court, challenging the legality of those decisions and claiming that the applicant lacked the legal capacity to replace the undertaking and take over the enforcement proceedings as a creditor. It further disputed that the 1994 settlement could not be regarded as an enforcement order, as the enforcement proceedings had already been pending at the time when it had been concluded. On or about 29 September 1998, the applicant, who was legally represented, made submissions in reply to the public prosecutor's legality review request. 28. On 11 November 1998 the Supreme Court upheld the public prosecutor's request and quashed the lower courts' decisions. It found that they had failed to establish whether the enforcement proceedings had been pending before the 1994 settlement was concluded. It further held it to be irrelevant that the undertaking had ceased to operate, as the undertaking's founders bore its rights and obligations and it had been their responsibility to establish their status before the courts. 29. On 17 March 1999 the Court of First Instance ordered the enforcement of the 1994 settlement by sale of the shop in favour of the applicant. It held that the enforcement proceedings, which had been instituted before the 1994 settlement, had ended with the first-instance court's decision of September 1997. It further recognised the applicant's capacity to take over the undertaking's claim and to be given the status of a creditor. 30. On 13 May 1999 the Court of Appeal upheld the lower court's decision and dismissed an appeal by the debtor, which had submitted, inter alia, that the applicant had failed to establish that she had taken over the undertaking's claim. 31. On 9 June 1999 the public prosecutor lodged a third legality review request with the Supreme Court. The public prosecutor's office reiterated its earlier allegations that the 1994 settlement could not be regarded as an enforcement order and that the applicant could not automatically be considered to have taken over the undertaking's claim. 32. On 17 February 2000 the Supreme Court quashed the lower courts' decisions. It found that they had erroneously established that the applicant had taken over the undertaking's claims ipso jure as she had been the last proprietor of the undertaking. It further instructed them to verify whether there had been a valid certificate by which the undertaking's claim had been transferred to the applicant. 33. On 23 June 2000 the Court of First Instance requested the applicant to provide, in accordance with section 22 of the Enforcement Act (see paragraph 51 below), written evidence that the undertaking's claim had been transferred to her. On 29 June 2000 the applicant submitted documents to the court, including a balance sheet (биланс на приходи и расходи), bank account details, a receipt (признаница) and a certificate issued by a bank. 34. On 6 October 2000 the Court of First Instance dismissed the applicant's application for enforcement of the claim as established by the 1994 settlement. Following the Supreme Court's instructions, it held that there had been no valid certificate by which the undertaking's claim had been transferred to the applicant. It therefore concluded that the latter could not claim to have the status of a creditor. 35. On 1 March 2001 the Court of Appeal quashed the decision as the lower court had failed to establish whether the applicant had owned and run the undertaking as a sole proprietor. 36. On 15 June 2001 the Court of First Instance dismissed the applicant's request as ill-founded. It found that the documents submitted to the court on 29 June 2000 could not be regarded as a valid certificate by which the undertaking's claim had been transferred to the applicant. It concluded that the applicant could not ipso jure have taken over the undertaking's claim. 37. On 6 September 2001 the Court of Appeal overturned the decision and partly allowed the applicant's application for enforcement of the principal debt indicated in the 1994 settlement. It dismissed the applicant's request for payment of the interest. It found, inter alia: “...it is irrefutable that the creditor, Ms Bočvarska, owned the undertaking ..., which had no legal capacity... The fact that Ms Bočvarska carried out transactions on the market through the undertaking at the time when the latter still operated implied that she was responsible for all the rights and obligations arising from it... the lack of legal capacity of the undertaking ..., whose proprietor was the creditor [the applicant], means that it was not a separate legal entity, but that its capacity, regarded as a pool of rights and obligations, is vested solely in the creditor, Ms Bočvarska ... there is no transfer of the undertaking's claims to Ms Bočvarska, as the former does not have legal capacity, but the creditor [the applicant] was ... liable for the undertaking's obligations...” 38. On or about 15 January 2002 the public prosecutor lodged a fourth legality review request with the Supreme Court in respect of the Court of Appeal's decision. 39. At the public prosecutor's request, on 28 January 2002 the Court of First Instance postponed the enforcement of the order until the Supreme Court had determined the legality review request. 40. On the same date, the applicant made submissions to the Court of First Instance in reply to the public prosecutor's request. 41. On 30 May 2002 the Supreme Court upheld the public prosecutor's request, overturned the Court of Appeal's decision and upheld the first-instance court's decision of 15 June 2001. It found, inter alia, that the lower courts had established the following facts: “...the enforcement proceedings were pending before the District Commercial Court between the [undertaking] and [the debtor]. On 6 October 1994 they concluded a court settlement on the basis of which the enforcement proceedings were instituted... on 23 September 1997 the Skopje Court of First Instance stayed the proceedings... on 30 April 1998 the Court of Appeal rejected the [undertaking's] appeal as inadmissible [these decisions concern the enforcement proceedings instituted before the 1994 settlement was concluded]... on 8 February 1993 the [undertaking] was registered in the name of Ms Bočvarska.... On 22 February 1995 [the undertaking]... ceased to exist. Ms Bočvarska was the last sole proprietor of the [undertaking], which had been set up by her funds and her labour force.” 42. The court went on to conclude that the Court of Appeal had wrongly applied the substantive law for the following reasons: “In the present case, the requirements of the provision cited above [referring to section 22 of the Enforcement Proceedings Act], for the granting of enforcement at the request of a person not indicated as a creditor in the enforcement order, were not satisfied. There is no written certificate attesting that the claim was transferred from [the undertaking] to Ms Bočvarska, as a creditor. The termination of the undertaking's operations does not ipso jure entail the transfer of its claims to the last proprietor who ran it. Indeed, the Entrepreneurship Act did not contain a provision providing for ipso jure transfer of the undertaking's claims to the last proprietor who ran it ... Moreover, the court settlement of 6 October 1994 cannot be regarded as an enforcement order as it resulted from the enforcement proceedings already pending between the same creditor [meaning the undertaking] and the debtor... the subject of this settlement was the means of enforcing the outstanding debt...” 43. The decision was served on the applicant on 25 July 2002. 44. Article 101 of the Constitution provides that the Supreme Court is the highest court and that it ensures the uniform application of the laws by the courts. 45. Section 3 (1 and 3) of the Entrepreneurship Act provided that an entrepreneur could set up an undertaking (дуќан), in order to pursue business activities. The undertaking could have a legal personality. 46. Section 10 provided that an entrepreneur could set up an undertaking by submitting an application to the relevant municipal administrative body. 47. In accordance with section 16 § 1 (1) of that Act, an undertaking would cease to exist if the above application had been withdrawn. 48. Section 7 (6) of the Enforcement Proceedings Act (“the Act”), as applicable at that time, provided that a decision given on an appeal was regarded as final. 49. Under section 8 of the Act, an appeal on points of law and a request for reopening of the proceedings could not be lodged in respect of a final decision given in the enforcement proceedings. 50. Section 13 of the Act provided that the provisions of the 1998 Act applied, mutatis mutandis, to enforcement and security proceedings, unless otherwise provided for by law. 51. Under section 15 (2), an enforceable court decision and a court settlement were regarded as an enforcement order. 52. Section 22 (1) of the Act provided that enforcement might be granted at the request of a person not indicated as a creditor in an enforcement order only if that person proved, by a public or otherwise legally certified order, that the claim had been transferred to him or her. Should that be impossible, the transfer of the claim was to be proved by a final decision given in civil proceedings. 53. Section 319 of the Civil Proceedings Act (“the 1998 Act”), which was in force at the material time, provided that a decision became final when an appeal could no longer be lodged against it. 54. In accordance with section 380 (1) of the 1998 Act, in case of substantial procedural flaws, the Supreme Court quashed the first- and the second-instance decision or the second-instance decision only and referred the case back for reconsideration. 55. Section 381 of the 1998 Act provided that where the substantive law had been applied incorrectly, the Supreme Court upheld the appeal on points of law and overturned the impugned decision. In cases where the facts were erroneously established because of the incorrect application of the substantive law and where there were no grounds for overturning the impugned decision, the Supreme Court upheld the appeal on points of law and referred the case back for fresh consideration. 56. In accordance with section 387 of the 1998 Act, the public prosecutor could submit, within three months, a request for the protection of legality in respect of a final decision. When the request was lodged in respect of a second-instance decision, this term started to run from the date on which the last party was served with the decision. Where the parties concerned had lodged an appeal on points of law against the second-instance decision, the public prosecutor could submit a request for the protection of legality in respect of that decision within thirty days of the date of service of the appeal on points of law. 57. In accordance with section 390, a legality review request could be lodged either in respect of a substantial procedural flaw or an incorrect application of the substantive law. It could not be lodged where the impugned decision went beyond the scope of the claim or where the facts had been erroneously or incompletely established. 58. Section 394(2) of the Act provided, inter alia, that sections 370, 373 to 381 and 383 to 385 applied, mutatis mutandis, to proceedings concerning a legality review request. 59. The Act, which repealed the 1998 Act, does not contain any provisions concerning the legality review proceedings. | 1 |
dev | 001-96591 | ENG | ROU | CHAMBER | 2,010 | CASE OF SECELEANU AND OTHERS v. ROMANIA | 4 | Violation of P1-1 | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall | 4. The first applicant was born in 1922 and died in 2006. The other two applicants were born in 1948 and 1946 respectively and live in Bucharest. 5. In 1950, Apartments nos. 203 and 215 situated in Bucharest, Vasile Conta no. 7-9, the property of B.M., were seized by the State under Decree no. 92/1950 on nationalisation. B.M. was S.D.’s stepfather, S.D. being the husband of the first applicant and the father of the other two applicants. 6. In 1994 S.D. together with his brother B.R. sought to have the seizure declared null and void and to recover ownership of the two apartments. 7. On 8 February 1995 the Bucharest Court of First Instance allowed the action by S.D. and ordered restitutio in integrum of the two apartments. However, on the basis of an inheritance certificate, it held that B.R. had no standing in the proceedings. An appeal by the authorities was dismissed on 20 November 1995 by the Bucharest County Court, which considered the seizure as being unlawful. That judgment became final. 8. On 12 May 1997, at the request of S.D., the Bucharest Town Council, having regard to the fact that the judgment of 8 February 1995 had become enforceable, ordered the restitution of Apartments 203 and 215. 9. Although S.D. had secured judicial recognition of his property right, he was not able to recover possession of those apartments because the State had sold them on 23 December 1996 and 13 January 1997 respectively to the then tenants, under Law no. 112/1995. 10. In 1998 S.D. lodged two requests to have the sales by the State declared null and void. S.D. died in 2000 and the applicants continued the proceedings. 11. On 7 February 2001 the Bucharest Court of Appeal, by a final decision, dismissed the action regarding Apartment 215, considering that the sale had complied with the provisions of Law no. 112/1995 and that the former tenants had made the purchase in good faith. 12. On 13 August 2001 the applicants applied to the administrative authorities for restitution of Apartment 215 under Law no. 10/2001 governing immovable property wrongfully seized by the State. By a letter of 12 April 2006 the Town Council informed the Agent of the Government that the file was incomplete as it lacked some of the necessary documents. 13. On 12 December 2002 the Court of Appeal, by a final decision, upheld the other action lodged by S.D. in 1998 and declared the sale of Apartment 203 null and void. 14. On 22 February 2008 the Bucharest Court of First Instance allowed a request by the second and third applicants to have the former tenants of Apartment 203 evicted from that apartment. On 4 December 2008 the Bucharest County Court dismissed an appeal by the former tenants. The latter lodged a further appeal on points of law. The proceedings are still pending. 15. On 20 September 1999 the Bucharest Town Council, at the request of the former tenants of Apartment 203, sought the revision of the judgment of 8 February 1995 (cerere de revizuire), on the basis of alleged new documents attesting the lawfulness of the 1950 nationalisation. The former tenants also intervened in the proceedings. 16. The Bucharest Court of Appeal dismissed that request as being out of time, by a final decision of 20 September 2001. 17. On 12 June 2002 the Town Council again sought to have that judgment revised, following a request by the same former tenants of Apartment 203, alleging that there were new documents proving that S.D. was not the only heir of B.M. The former tenants intervened in the proceedings. 18. On 20 November 2002 the Bucharest Court of First Instance dismissed the action as being out of time. There is nothing in the file to say that an appeal was lodged against that judgment. 19. On 22 November 2002, at the request of the former tenants, the Prosecutor’s Office attached to the Bucharest Court of First Instance brought proceedings to have that judgment revised, on the basis of an inheritance certificate from 1958, considered to be a new document attesting that S.D. was not the only heir. 20. On 31 January 2003 the Bucharest Court of First Instance found that request inadmissible, since that certificate could have been obtained by the authorities, which were defendants in those proceedings, with minimum diligence. 21. The prosecutor, the town council and the former tenants of Apartment 203 appealed. Eventually, on 14 February 2006 the Bucharest County Court dismissed their appeals as groundless or for lack of interest. 22. All the parties lodged a further appeal on points of law. According to the documents in the file, the proceedings are still pending. 23. On 27 April 2005 the Bucharest Town Council made a fresh attempt, at the request of the same former tenants who had intervened in the proceedings, to have the judgment of 8 February 1995 revised. The former tenants informed the Town Council that the prosecutor had found that the signatures on the 1994 application form (see paragraph 6 above) were forged, since they belonged to the plaintiffs’ lawyer, although it had been alleged that they belonged to the plaintiffs themselves. However, the prosecutor acknowledged that the lawyer’s criminal responsibility had become time-barred. 24. On 30 September 2005 the Bucharest Court of First Instance upheld the action and declared null and void the action introduced by those plaintiffs in 1994, for lack of a valid signature. 25. On 18 January 2006 the Bucharest County Court considered an appeal by the applicants as being out of time. 26. On 6 November 2006 the Bucharest Court of Appeal allowed a further appeal, on points of law, by the second and third applicants, quashed the previous judgment and sent the case back for fresh consideration of the applicants’ appeal against the judgment of 30 September 2005. 27. On 13 March 2007 the Bucharest County Court allowed the applicants’ appeal against that judgment and dismissed the request for revision, considering that the application form had not represented relevant evidence in delivering that judgment. 28. The Bucharest Town Council lodged a further appeal on points of law. By a letter of 18 March 2009 the Government informed the Court that the proceedings were still pending. 29. The relevant legal provisions and jurisprudence are described in the judgments Brumărescu v. Romania ([GC], no. 28342/95, §§ 31-33, ECHR 1999VII); Străin and Others v. Romania (no. 57001/00, §§ 19-26, ECHR 2005VII); Păduraru v. Romania (no. 63252/00, §§ 38-53, 1 December 2005); and Tudor v. Romania (no. 29035/05, §§ 15-20, 17 January 2008). | 0 |
dev | 001-102748 | ENG | IRL | ADMISSIBILITY | 2,010 | KELLY v. IRELAND | 4 | Inadmissible | Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra | 1. The applicant, Mr Martin Kelly, is an Irish national who was born in 1956 and lives in Dublin. He was represented before the Court by Mr Michael Finucane, a lawyer practising in Dublin. 2. The following are the main allegations which led to the applicant’s prosecution (drawn from the later Court of Criminal Appeal judgment). The applicant and a co-accused, WC, were charged with membership of an unlawful organisation styling itself the Irish Republican Army (“IRA”) contrary to section 21 of the Offences Against the State Act, 1939 as amended. It was alleged that DM, in association with four others, planned to open a lap dancing club in Dublin (“the Club”) and engaged a company to provide security. The Club was due to open on 27 May 2002. On that day one of the principals in the security company requested a meeting with DM at lunch time. The meeting was attended by DM, GC (one of the partners in the Club), PB, the applicant and his co-accused. In the course of this meeting, the applicant introduced his co-accused as “the top man”, meaning the top man in the IRA. It was alleged that WC said that certain people in Dublin did not want the club to open but that they would make sure it would open if a donation was given to the Continuity IRA (“CIRA”) and, that if a donation was not made, the dancers and DM’s girlfriend would be hurt and the premises would be petrol bombed. Initially, a payment of €50,000.00 (EUR) was sought, but after some discussion this was reduced to €25,000.00. The €25,000.00 was ultimately paid in instalments. 3. On 29 July 2002 the applicant and WC were arrested, questioned and charged with the offence of membership of an illegal organisation (the IRA) pursuant to section 21 of the Offences Against the State Act 1939, as amended (“the 1939 Act”). During police questioning (under section 2 of the Offences Against the State (Amendment) Act 1998, “the 1998 Act”) the applicant denied membership of an unlawful organisation. 4. The applicant and WC (“co-accused”) were tried before the SCC in November 2003 over 9 days. On the 5th day of the trial, the applicant’s co-accused pleaded guilty. The trial proceeded and the SCC had regard only to evidence insofar as it concerned the applicant. In all, the SCC heard 13 witnesses, nine of whom testified on behalf of the prosecution and 4, including the applicant, for the defence. 5. The SCC delivered its judgment on 19 November 2003. The judgment gave a detailed account of the relevant evidence of every witness followed by an assessment of the credibility of each. 6. The principal witness for the prosecution was DM. He gave evidence as to a meeting that took place on the 22nd May 2002, the day upon which the club was due to open. He identified the two accused (WC and the applicant) as being present at that meeting. He testified as to the threats made by WC in the event of a required contribution of €50,000.00 not being made to the Continuity IRA. When he had replied that he did not have that amount negotiations took place and the amount was reduced to €25,000.00. The dates upon which the instalments were to be paid were then agreed. He paid the first two instalments to the applicant’s co-accused and on the 31st May 2002 he had met with both men and had handed over a further instalment of €5,000.00 to the applicant. The witness was cross-examined by counsel for the applicant. He confirmed that the applicant and his co-accused made themselves known to him to be Continuity IRA. He did not report the matter to the Garda Síochána (police) straightaway because he was afraid of his life. His first contact with the police came when he received a telephone call from a sergeant whose identity he had to check out in order to ascertain that he really was a member of the police force. He said that he was “in the Witness Protection Programme having received threats to his life and having been told that “they” would stick a hammer into his head in messages left on his phone from [the applicant].” The SCC found him to be a truthful witness: “Vigorous efforts were made to discredit this witness by putting to him that he had a record of cocaine abuse, drunkenness, lying, theft and involvement in fraudulent conversion. He gave his evidence in a forthright manner both in examination and cross-examination. Throughout his evidence it was apparent to the Court from his demeanour that he was in fear. ... The Court is satisfied that he was indeed in fear of both the accused and of the Continuity IRA. It is for this reason he accepted entry into the Witness Protection Programme and removed himself from Dublin and pending the trial for approximately one year remained in isolation. The Court is satisfied that he is a truthful witness.” 7. The trial court also heard evidence from PB and GC. An application was made by the prosecution to treat PB as a hostile witness, which was initially refused but subsequently granted. As to the evidence of PB, the Court held: “The witness throughout his evidence was hesitant and there was frequently a very long pause between a question posed by [Counsel for the prosecution] and the answer. At a later stage in his evidence he was clearly terrified and the impression of the Court was that he was anxious that he should give no answer that could implicate [the applicant] or the IRA in the events described by [DM] and in the final stage of his evidence that while implicating the IRA he was anxious that he should not implicate [the applicant]. The stress which he was under was apparent.” GC gave evidence that he was present at the meeting in May 2002 which was held because it had been brought to his attention by DM that there was a potential threat to the staff and business. It was the first occasion he had met the applicant and the co-accused who had been introduced as being another security company who would be able to provide extra security at a cost, initially, of €15,000.00 but subsequently €25,000.00. He took control of the last five payments. He found DM to be dishonest but gave no instances of this. The applicant had never threatened him. He had never been in fear of the applicant. Upon cross-examination he denied having extensive contact with the applicant since the trial started. The SCC held: “The witness was not convincing in his evidence. ... The Court regards his account of the manner in which the sum sought by [the applicant] and [WC] was negotiated upwards of €15,000 to €25,000 so unlikely as to be incredible.... He offered no plausible explanation as to why any money should be paid to [the applicant] and [WC] for extra security in the circumstance where there was not evidence of any discussion as to the nature of that extra security if any and when it was his wish that they should not attend at the premises his agreement to pay this sum when he did not believe [DM]’s reportage of threats is not credible. ... In his evidence he created an impression of being evasive .... The impression left upon the Court by the witness’s manner of giving his evidence is that he is an untrustworthy witness.” 8. A police Chief Superintendent gave evidence in accordance with section 3(2) of the Offences Against the State (Amendment) Act 1972, as amended (“the 1972 Act”) of his belief that the applicant had been a member of the IRA on the relevant date. He had served 32 years in the police (of which 25 years were in “the fight against subversion”) and he was, at that time, in charge of the Special Detective Unit involved in receiving and analysing sensitive information and intelligence relating to subversion. He gave evidence that he believed that the applicant was a member of the IRA on the date of his arrest. He also stated that he believed that the applicant had been a member of the IRA for six months prior to that date and that he had been associated with the IRA for months before being sworn in as a member. He stated that he based his belief on matters other than those that related to the applicant’s arrest. The Chief Superintendent was cross-examined as to the source of his belief but he pleaded privilege on the basis that the disclosure of his sources would endanger life and would endanger the ongoing police operations against the IRA. 9. The applicant argued that the SCC should refuse the claim of privilege since, in order to have a fair trial, the accused must be told the identities of the informants that went to make up the belief of the Chief Superintendent. In the course of its ruling on this application the SCC reviewed the legal authorities on ‘informer privilege’ and the ‘innocence at stake’ exception thereto. It cited, in particular, the case of The Director of Public Prosecutions and the Special Criminal Court [1999] 1 IR 60 where O’Flaherty J had said: “In effecting the balance between the interest of the public in determining and detecting crime and the interest of an accused person, one important consideration which is relevant to this case is that the Court will have regard to a risk of serious harm or death to persons whose identity is disclosed.” The SCC was satisfied that disclosure of the sources upon which the Chief Superintendent relied for his belief: “would have the effect of endangering ongoing Garda operations against the IRA and would expose these sources, and particularly non-Garda sources, to a real and substantial risk of serious harm or death. The evidence given to this Court . . . is that threats have been made and the effect of those threats upon the witnesses concerned, namely [DM] and [PB], has been apparent to the Court, not just in the oral evidence which they gave, but in their demeanour while giving evidence and which demeanour made it clear that they, themselves, were in serious harm. [DM] repeated on a number of occasions that he is in fear of his life and the consequence of threats to date made upon him. In these circumstances, the Court is satisfied in weighing the respective interests of the public and the accused that it must give preference to that of the public in having crime deterred and detected.” In making its ruling the SCC noted that it was for the trial court to attach to the statement of belief, as is the case with all other evidence, such weight as it considers appropriate in all the circumstances. The Chief Superintendent’s claim of privilege was therefore upheld. 10. A Detective Chief Superintendent was called in relation to a detention matter which, it transpired, was not in issue. Two detective sergeants gave evidence about their interviews with the applicant in July 2002, during which the applicant was questioned about joining the organisation at a house in Dublin and about his associations with WC. The applicant denied being a member of the IRA. One of the Sergeants gave evidence as to the identification parade. 11. The final prosecution witness applied pursuant to Rule 7(4) of The Offences Against the State Acts 1939-1972 Special Criminal Court Rules 1975 S. I. No. 234 of 1975 to be permitted to give her name and address in writing to the court. She handed in a letter to the court in which she had expressed concern for her own safety. The Court deferred dealing with the application until the conclusion of her evidence. She gave evidence as to how she had assisted DM both financially and through her interior design skills with his project and of how she had been employed in a managerial capacity in the club. She met the applicant and his co-accused some weeks after the club had opened. At the conclusion of her evidence the court ordered that her name and address should not be disclosed in court. In assessing her credibility, the SCC found that she had given her evidence in a forthright manner and was satisfied that she was a truthful witness. 12. The defence called four witnesses. The applicant pleaded not guilty. He testified that he had left school at the age of 15 and that he had been in the Irish Army for 26 years. Prior to his retirement, he became involved in the provision of security services as part of his return to civilian life. It was in this context that he had come to know his co-accused and DM. He accepted that the meeting of May 2002 took place. When asked why he brought WC to that meeting he replied that he had been in his house at the time and that when told by the applicant that he had to go into town to meet some people, he (WC) said that “he would tag along”. He said that the meeting concerned the provision of bona fide security services and that there was no question of the involvement of the IRA. He denied that he knew that his co-accused was a member of the IRA, although he knew that he had been a member of another illegal organisation (the Irish National Liberation Army). 13. In relation to the applicant, the SCC held: “The witness gave his evidence in a straight forward and vigorous manner. There are inconsistencies within the same. He was reticent about his knowledge of and prior relationship with [a person] and likewise his relationship with [WC] outside the circumstances mentioned in the evidence of prosecution witnesses. His account of the arrangement for payment for the additional security at the [Club] lacks credibility. .... The witness’s evidence as a whole makes clear that his answers at interview to Detective Sergeant ... quoted in this judgment were untrue and misleading. The Court is satisfied that it should approach his evidence with caution. ... The court finds his account of the circumstances in which [WC] came to be present at the meeting in Dorans ... improbable to the extent that it is unbelievable. It is not credible that [WC] was present in his house on one of his regular social calls on the 27th May 2002 when the phone call from [PB] was received and that [WC] simply tagged along to the meeting as if he had nothing better to do but that he then took control of the meeting and took part in the separate private meeting to the exclusion of [the applicant] and there negotiated the agreement for the payment of €25,000.00. Further his account of the arrangement for payment for the additional level of security lacks credibility .... Further he was reticent about his previous relationship with [WC] in connection with meetings in Tallaght and Limerick. ... Having regard to these matters where there is a conflict between the evidence of [the applicant] and that of [DM] or [PB] the evidence of [DM] and [PB] is to be preferred. 14. DL, a former employer of DM, was also called by the defence. He gave evidence of a report he had received from his security firm that DM had been taking alcohol and stealing at work. The court noted that this evidence was hearsay and that no weight whatsoever should be attributed to it. His evidence of having employed and dismissed DM was accepted. It was noted that the alleged reasons for that dismissal had been denied by DM in evidence. 15. The applicant’s brother and an officer from the Irish Defence Force were also called. The former had introduced the co-accused to the applicant and the latter had been the applicant’s former commanding officer for ten years. He testified that for most of that period the applicant’s conduct rating was excellent. He confirmed the discussion between himself and the applicant as to the advisability of retirement in the light of allegations that he was a member of the IRA. 16. The SCC considered and assessed the evidence adduced at the trial. It accepted in its judgment the evidence of the Chief Superintendent as to his belief that the applicant was a member of the IRA. It took into account when assessing the weight to be attributed to that evidence that privilege had been granted in respect of the information grounding his belief. It found, however, that the statement of ‘belief’ was supported by additional corroborative evidence. 17. This additional evidence included evidence admissible under section 3(1) of the 1972 Act of the applicant’s association with his co-accused who had pleaded guilty to membership of an unlawful organisation. In particular, the SCC considered that the evidence demonstrated that it was the applicant who had arranged the meeting on 27 May 2002 at which he had introduced his co-accused as a “top man” in the IRA (evidence of PB); that sums of money had been demanded for the CIRA from DM under threats of violence; that his co-accused pretended to have an accent from Northern Ireland, the applicant knew he did not have such an accent and his failure to comment on this during the meeting was evidence that they acted in concert in order to reinforce and confirm the IRA connection of the applicant and his co-accused; that the applicant was involved in negotiations for the payment of €25,000 in instalments; that €5,000 was paid directly to the applicant (evidence of DM); and that the applicant had attended a separate meeting in a house in Dublin where another person was introduced by the co-accused as “top man in Limerick” meaning the top man in the IRA (evidence of PB). 18. In addition, the SCC found that the applicant’s answers to police questions in interview, which were material to the investigation of the offence, were untrue and misleading. The false or misleading nature of those responses was “quite clear” from the evidence of the applicant himself as well as of other witnesses. Those responses were designed to give the impression of distance between himself, on the one hand, and his co-accused, the meeting on 27 May 2002 and the Club, on the other. In so distancing himself during a police interview about membership of an unlawful organisation, he inferred that those activities were connected to the organisation. 19. Moreover, the trial court found that the applicant’s evidence concerning how his co-accused had ‘tagged along’ to the meeting in May 2002 and had then taken it over was simply not credible. His account of the arrangement for payment of the additional level of security also lacked credibility. His disposition not to tell the truth had to be borne in mind in evaluating his evidence. Having regard to all of the above, where there was a conflict of evidence between the applicant and that of DM/PB, the latter was to be preferred. 20. On the entirety of the evidence adduced, the SCC was satisfied beyond reasonable doubt that the applicant was guilty of the offence with which he was charged. He was found guilty and sentenced to 4 years’ imprisonment. 21. The applicant appealed to the CCA and argued that his right to a fair trial (under Article 38 of the Constitution and Article 6 of the Convention) had been breached by the refusal to disclose the source of the Chief Superintendent’s belief. He argued that a fair trial requires some investigation as to whether it is reasonable to protect a claim of privilege in any particular case. His appeal was dismissed by judgment of 29 April 2005, although the appeal court reduced the sentence to 3 years’ imprisonment. 22. In dismissing the appeal, the CCA found that in the course of a lengthy judgment the SCC had indicated that it had laid very great emphasis on the demeanour of the witnesses in the witness box and on the manner in which they had given their evidence. The case involved striking conflicts of evidence which could not be explained simply by errors of memory or lapse of time so that, clearly, false and perjured evidence had been given by some witnesses. The CCA was impressed by the care with which the SCC had assessed the credibility of the various witnesses and the clear way in which it had expressed its findings. The CCA had “no doubt that there was credible evidence upon which such findings could be made” and it did not therefore interfere with the findings of fact of the SCC. 23. The CCA noted that the Chief Superintendent had given evidence of his belief that the applicant was a member of the IRA at the relevant date and that under cross-examination he had claimed privilege against disclosure. It also noted that the problem related to information in his possession which quite possibly was not documented at all. Thus, the simple solution of allowing the trial court to see the disputed documentation could not really be adapted to the circumstances of the present case. 24. There was no doubt that there was a long established principle that, in certain circumstances, the police were entitled to refuse to disclose sources of information. There was undoubtedly a serious public interest in ensuring that persons who might be subject to intimidation and threats, if not actually in danger of their life, should be protected to ensure that information in their possession would be given to the police to assist in the prosecution of wrongdoers. As against this, there was also the constitutional obligation to ensure that an accused had a fair trial. The CCA considered that the balancing of those conflicting rights and interests could only be determined by the trial court. It had to be remembered that that the purpose of section 3(2) of the 1972 Act was simply to make the statement of belief of the Chief Superintendent admissible as evidence and that, while it may be persuasive, it is not conclusive. The trial court must consider that evidence in the light of all their surrounding circumstances and, in particular, in the light of the other evidence in the case. 25. In the present case, the trial court could certainly take into account the fact that the Chief Superintendent refused to identify the basis of his belief, as well as the fact that the applicant appeared to have made a false statement to the police and the evidence of the other witnesses. Having decided that it accepted the evidence of DM, the SCC was entitled to treat this evidence as corroboration of the belief of the Chief Superintendent. As claims of privilege of this nature were a matter for the trial court, the applicant’s argument that he did not receive a fair trial was rejected. The CCA left open the question of whether it could interfere in a case where there was no other evidence corroborating the belief of the Chief Superintendent. 26. An appeal was taken to the Supreme Court on a point of law pursuant to a certificate of the CCA. The Supreme Court considered whether the limitations placed on the applicant’s cross-examination of the Superintendent as to the source of his belief rendered his trial unfair. 27. On 4 April 2006 the Supreme Court unanimously dismissed the appeal. Geoghegan J. gave the judgment of the Court (with which Murray C.J. as well as Denham and Kearns JJ concurred). Fennelly J. delivered a separate judgment. 28. Geoghegan J. considered it essential to consider the purpose of section 3(2) of the 1972 Act. The legislation was passed in the context of preserving the security of the State and was introduced to allow reliable information about membership of an unlawful organisation from a senior police officer to be admitted into evidence given the difficulty in getting direct evidence from lay witnesses who would not come forward for fear of reprisal. As with all anti-terrorist offences, there would also be equal apprehension about intimidation of witnesses. It was reasonable to infer that the relevant provision was enacted out of bitter experience. A limitation on cross-examination was permitted by the statutory provision. However, informer privilege, even without the statutory provision, may involve more than merely refusing to divulge the name of an informer. The correct interpretation of section 3(2) was that it allowed cross-examination about the basis of the belief evidence but not to the extent that it interfered with or defeated a legitimate plea of privilege. 29. He noted that the trial and appeal courts had fully considered the weight to be given in a trial to the belief evidence. He considered that the SCC had the right methodology and, in any event, that there was substantial evidence implicating the applicant independently of the belief evidence. 30. He went on to note that it had been the practice of the SCC not to convict on the basis of belief evidence only and commended the court on that practice. He also commended the practice of the DPP not to initiate prosecutions based solely on belief evidence. These self-imposed restrictions of the SCC and the DPP aimed at ensuring a fair trial. However, in the present case, there was plenty of outside evidence and it was well within the discretion of the SCC to convict the applicant for the reasons given by the CCA. 31. Geoghegan J went on to review domestic case law on the relevant provision and agreed that the balancing of the conflicting rights and interests was to be determined by the trial court. The Chief Superintendent’s belief had no special status but was merely a piece of admissible evidence (as stated by the CCA in DPP v. Redmond, judgment 24 February 2004). Although the trial court was entitled to take into account the fact that the Chief Superintendent refused to identify the basis of his belief, it was also entitled to take into account that the appellant had made a false statement to the police and to have regard to the corroborating evidence of other witnesses, particularly that of Mr. DM which it accepted. 32. Fennelly J. noted that the prosecution evidence was not limited to the belief evidence of the Chief Superintendent. The SCC had before it and had accepted the evidence of DM, whom it had regarded as a truthful witness and in respect of whom it was satisfied that “throughout his evidence it was apparent to the court from his demeanour that he was in fear” both of the applicant and of the CIRA. While there was a conflict concerning amounts, there was also evidence that €5,000 was paid to the co-accused and another €5,000 to the applicant. In addition, the SCC had before it the evidence of PB whom it also accepted as being in fear. Though treated as a hostile witness, he nevertheless gave evidence that the applicant described his co-accused as a “top man” using that expression in relation to the IRA. It was unnecessary to refer to this evidence in any greater detail as it was clear that there was significant evidence before the SCC, which was accepted by that court, of the involvement of the applicant with an unlawful organisation. The SCC had concluded by stating that on “the entire of the evidence adduced before the Court” it was satisfied beyond reasonable doubt that the applicant had been guilty of the offence with which he was charged. 33. The particularity of the present case was whether the fact that an accused person, who was prepared to give evidence denying membership of an unlawful organisation and was denied the right to cross-examine the Chief Superintendent as to the sources of his belief, had had a fair trial. 34. Fennelly J. recalled the nature of an unlawful organisation as defined by section 18 of the 1939 Act and considered it obvious both from that definition and from common sense that such organisations are, in their nature, secret and violent. It followed that it would be extremely difficult to produce direct evidence capable of sustaining a prosecution. Intimidation of possible witnesses, and worse, was to be presumed. Where the police have secret intelligence, they would be unable to produce informants as witnesses without compromising them. Hence the need for an unusual type of evidence permitted under section 3(2) of the 1972 Act. Parliament had chosen to designate a person holding the rank of Chief Superintendent as a witness whose belief might be accepted as evidence. Whether or not an accused person was a member of an unlawful organisation was a question of fact and the Chief Superintendent gave evidence, not of fact, but of belief. The Chief Superintendent simply states his belief. 35. Fennelly J. noted that the prosecution had submitted that it was no longer the practice of the DPP to prosecute on the basis of belief evidence alone. Having reviewed domestic case law on section 3(2) he noted that the specific circumstances of the present case (where the accused wishes to mount a full defence) had not previously been the subject of a ruling by the CCA. 36. The Chief Superintendent merely stated that he was of the belief that the accused was a member of an unlawful organisation. That type of evidence was, in itself, a novelty. Under the normal rules of evidence, only expert witnesses were permitted to give evidence of their belief and, even then, not on simple questions of fact. The Chief Superintendent could, no doubt, be regarded as an expert in his field. That, however, was not the real problem. The real problem was that, where privilege was claimed, as it inevitably was, the defendant did not know the basis of that belief. 37. This did not mean, in Fennelly J.’s view, that courts should generally or at all disallow claims of privilege. The evidence of the Chief Superintendent before the SCC was perfectly plausible, indeed compelling. The CCA was right in expressing the views it did and the SCC was entitled to accept such evidence. It was in the nature of an unlawful organisation to threaten, intimidate and endanger the lives of those who co-operate with the police or give evidence against members. 38. The courts had developed over recent years extensive rules and principles requiring the prosecution to preserve and disclose to the defence in advance of trial any materials in its possession which might give rise to a reasonable possibility of securing evidence relevant to guilt or innocence. It was implicit in this case law that the prosecution had to disclose to the defence any material of possible relevance to guilt or innocence. In several of these cases, the DPP was prohibited from continuing with prosecutions when a real risk of an unfair trial flowed from non-compliance with these principles. 39. The present applicant, however, made his case very firmly on the ground of denial of a fair trial as a result of infringement of the effective right to cross-examine the Chief Superintendent and, by extension, any of his informants who might be identified if he revealed his sources. Fennelly J. reviewed case-law of the Irish, US and UK courts on the right to cross-examination. He also reviewed the case law of this Court (notably Kostovski v. the Netherlands, 20 November 1989, Series A no. 166; Doorson v. the Netherlands, 26 March 1996, Reports of Judgments and Decisions 1996II; Van Mechelen and Others v. the Netherlands, 23 April 1997, Reports 1997III; and Rowe and Davis v. the United Kingdom [GC], no. 28901/95, ECHR 2000II). He concluded that authorities cited from all relevant jurisdictions demonstrated that there was an inescapable obligation on the courts to guarantee the overall fairness of a trial and he believed that, in Ireland, the right to cross-examine one’s accusers was an essential element in a fair trial. While restrictions could be imposed in the interests of overall balance and the efficiency of the criminal justice system, derogations, for overriding reasons of public interests, from normal procedural rights of the defence were not to go beyond what was strictly necessary and should not “imperil the overall fairness of the trial”. 40. The essential question was whether the undisputed restriction on the right of the accused to cross-examine his accusers and to have access to the materials relied upon by the prosecution, had been unduly restricted so as to render his trial unfair. Fennelly J. believed that the privilege made by the Chief Superintendent constituted an undoubted infringement of the normal right of the accused to have access to the material which underlay the belief expressed and, to that extent, had constituted a restriction on the effectiveness of his right to cross-examine his true accusers and it had, for that reason, the potential for unfairness. 41. On the other hand, Counsel for the DPP had pointed to a number of compelling circumstances to justify the course of action adopted. In the first place, resort to belief evidence applied only in the case of organisations which, by their nature, represented a threat, not only to the institutions of the State, but to individuals who are prepared quite properly to cooperate with the State in securing the conviction of members of such organisations. This made it possible to justify some restriction on direct access on behalf of the accused to the identity of his accusers. Secondly, the legislature allowed such evidence to be given by police officers of particularly high rank who could be presumed to have been chosen for having high standards of integrity. Thirdly, the procedure applied only while there was in force a declaration that “the ordinary courts are inadequate to secure the effective administration of justice....” The offence was a scheduled one: thus the cases would be heard by the SCC, a court composed of judges who had to be presumed to apply only the highest standards of fairness. The section also enjoyed a presumption of constitutionality. Any restriction on the right to cross-examine, which it implied, had therefore be limited to the extent that was strictly necessary to achieve its clear objectives. 42. As to its application in the present case, it was of crucial importance that there was quite extensive evidence, other than the evidence of the Chief Superintendent, which convinced the SCC that the applicant was a member of the IRA on the relevant date. While the SCC said that it had taken into account the fact that the Chief Superintendent had claimed privilege, Fennelly J. noted that the SCC should have explained the weight, if any, which it attached to the evidence of the Chief Superintendent given the grant of privilege. However, in the particular circumstances of this trial, Fennelly J. did not think there was any overall unfairness. He did not think that the undoubted restriction on the rights of the accused went further than was strictly necessary to protect other potential witnesses or informants and he did not see how else the identity and safety of those other witnesses could have been protected. Thus it was, in the literal sense, necessary to prevent the defence from learning who they were. This, in turn, made it inevitable that the right to cross-examine would have to be restricted. 43. The matter, he said, might be quite different in a case where the evidence of the Chief Superintendent was the sole plank in the prosecution’s case. However, the Supreme Court was not called upon to decide this issue and, in the particular circumstances of this case, he found that there was no unfairness in the trial of the applicant. 44. The applicant was released from prison on 19 January 2006. 45. Article 38 reads, in so far as relevant, as follows: “1. No person shall be tried on any criminal charge save in due course of law. ... 3(1) Special courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order. (2) The constitution, powers, jurisdiction and procedure of such special courts shall be prescribed by law. ...” 46. The Court refers to the description of the matters leading to the adoption of the 1939 Act in its judgment in Lawless v. Ireland (no. 3), 1 July 1961, §§ 1-7, Series A no. 3. 47. The 1939 Act allowed for the establishment of the SCC (section 38) to try offences which were not amenable to trial in normal domestic courts. The SCC is a non-jury court and sitting judges (normally three, drawn from the District, Circuit and High Court) hear the evidence and make findings of fact. 48. Section 36 of the 1939 Act allows for certain offences to be “scheduled” which offences are then to be tried before a SCC. Secondary legislation in 1972 defined those scheduled offences (Offences against the State (Scheduled Offences) Order 1972 S.I. No. 142 of 1972). 49. Section 21(1) of the 1939 Act provides that “it shall not be lawful for any person to be a member of an unlawful organisation”. The IRA was declared unlawful by a suppression order made under section 19 of the 1939 Act (Unlawful Organisation (Suppression) Order 1939). Accordingly, the SCC tries, inter alia, charges of membership of unlawful organisations. 50. This section, as amended, is headed “Evidence of membership of unlawful organisation” and reads as follows: “3(1)(a) Any statement made orally, in writing or otherwise, or any conduct, by an accused person implying or leading to a reasonable inference that he was at a material time a member of an unlawful organisation shall, in proceedings under section 21 of the Act of 1939, be evidence that he was then such a member. (b) In paragraph (a) of this subsection ‘conduct’ includes- (i) movements, actions, activities or associations on the part of the accused person, and (ii) omission by the accused person to deny published reports that he was a member of an unlawful organisation, but the fact of such denial shall not by itself be conclusive. (2) Where [a police officer], not below the rank of Chief Superintendent, in giving evidence in proceedings relating to an offence under the said section 21, states that he believes that the accused was at a material time a member of an unlawful organisation, the statement shall be evidence that he was then such a member. (3) Subsection (2) of this section shall be in force whenever and for so long only as Part V of the Act of 1939 is in force.” | 0 |
dev | 001-59194 | ENG | BEL | CHAMBER | 2,000 | CASE OF COEME AND OTHERS v. BELGIUM | 1 | Violation of Art. 6-1 in respect of Mr Coeme (fair hearing);Not necessary to examine Art. 6-2 and 6-3;Violation of Art. 6-1 (tribunal "established by law");Not necessary to examine Art. 14;Not necessary to examine the complaint of Mr Mazy, Mr Stalport, Mr Hermanus and Mr Javeau (fair hearing);No violation of Art. 6-1 (access to court);Not necessary to examine Art. 13;No violation of Art. 6-1 as regards the allegation that the Court of Cassation is not an independent and impartial tribunal;No violation of Art. 6-1 as regards the interview with Mr Stalport;No violation of Art. 6-1 (reasonable time);No violation of Art. 7;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 | 10. Mr Coëme, a Belgian national born in 1948, is a former member of the House of Representatives and a former minister. Mr Mazy, a Belgian national born in 1955, is an economist. Application no. 32548/96 was originally lodged by Mr Stalport, a Belgian national born in 1950, who was then the director-general of Belgian Radio and Television. Following Mr Stalport's death on 7 May 1997 his wife and his daughters announced their intention of pursuing the application in a letter of 4 July 1997. Mr Hermanus is a Belgian national, born in 1944. A civil servant, he was deputy mayor of the municipality of Jette from 1983 to 1986 and the chairman of the Brussels-Capital Regional Development Board (“the SDRB”) from 1989 to 1996. Mr Javeau, a Belgian national born in 1943, is a psychologist. 11. In 1984 Mr Javeau, an employee of the “I” association, was appointed as its manager. The object of the association was to carry out market research and opinion polls, and to create and develop computer software. The market research included surveys requested and paid for by third parties in both the private and public sectors (such as the State, public establishments, political parties, etc.). The association also carried out market research and opinion polls on its own initiative. On 22 August 1989, while Mr Javeau was in the United States, he was dismissed for serious misconduct. 12. On 25 August 1989 an investigating judge at the Brussels Court of First Instance was instructed to conduct an investigation into some of “I”'s activities. 13. On 26 August 1989 Mr Javeau was placed in pre-trial detention on his return from the United States. He was suspected of using forged invoices to overcharge “I”'s clients for surveys the association had undertaken to carry out on the basis of contracts with the Belgian State, the Walloon Region and the French-speaking Community, among others. It was alleged that he personally had obtained a financial gain from the higher fees paid to the association in consequence and had allowed others to do so. Those alleged to have benefited from these transactions included prominent politicians. 14. In October 1989 one V., “I”'s deputy manager, was also placed in pre-trial detention. He was released in November 1989, as was Mr Javeau. 15. On 28 August 1989 Mr Hermanus lodged a complaint against a person or persons unknown in connection with “slanderous rumours [being spread] about [him] in relation to the dismissal of Mr C. Javeau”. In this complaint he gave detailed explanations about two surveys he had requested “I” to carry out, in his capacity as secretary-general of the Ministry of the French-speaking Community of Belgium. These surveys, one of which had allegedly not been carried out, had been requested from “I” in two contracts dated 16 and 27 November 1987, the bills for which had been paid by the French-speaking Community on 20 January and 29 February 1988 respectively. 16. In the context of the proceedings brought against Mr Javeau, among others, the investigating judge appointed a court expert to ascertain how the fraud had been perpetrated, who was responsible for it and who had benefited from it. The expert was instructed in particular to report on the association's bookkeeping, to study its annual accounts, to determine to what extent, if at all, it was engaged in activity of a commercial nature, to identify the documents whose authenticity was in doubt and to note any evidence of fraud within the limits of the prosecution submissions and any further submissions which might be made. 17. The expert filed a preliminary report in December 1989. 18. At the prosecution's request, the investigating judge commissioned further expert reports. One of these was filed in 1990. 19. On 28 August 1991 searches were carried out at the home of Mr Hermanus and the offices he occupied as deputy mayor of Jette. 20. On 10 June 1992 the Audit Commission (an independent body responsible for detecting frauds or offences committed in connection with the operation of public services, supervising public works or supply contracts and verifying how public subsidies have been used) interviewed Mr Hermanus. A report on the proceedings was drawn up (no. 2337). Mr Hermanus was questioned by the Audit Commission on a number of further occasions in 1992 and 1993. 21. On 8 June 1993 an Audit Commission investigator questioned Mr Javeau about certain contracts entered into by “I”, particularly three contracts for 1,200,000 Belgian francs (BEF) each signed by Minister M. which concerned businesses in the Brussels area which were geared for exports, operating as sub-contractors or receiving subsidies from the Brussels Region (files nos. IN B/40, B/50 and B/60). He was asked in particular whether the intention had not been “in effect to scrape together all available funds” before Minister M. left the Brussels Region and whether a preliminary study had not been split into three contracts in order to evade the scrutiny of the Treasury inspector. According to the interview record, Mr Javeau replied: “Yes, in effect, we signed those contracts at the end of Minister M.'s term of office in the Brussels Region as I have just explained, but I think that splitting the work between three contracts was done simply to save time. The new minister-president had to be installed and a new procedure would have led to further delays. If we had not severed the contract we would indeed have had to submit it to the Treasury inspector for approval, and in the event of an unfavourable opinion we would have had to go up as far as the Cabinet, all for a contract that M. was determined to get through whatever level of the procedure it had to go to.” 22. The final report containing the expert opinions ran to six volumes which were filed between December 1993 and March 1994. 23. Reports concerning the additional expert opinions requested were filed in January and February 1995. 24. On 2 February 1994 the investigating judge charged Mr Hermanus with misappropriation, fraud, forgery, uttering forged documents and accepting bribes as a civil servant. 25. On 7 February 1994, as the investigation appeared to have uncovered evidence of offences committed by prominent politicians who, because of ministerial or parliamentary immunity, could not be prosecuted or investigated except under the conditions laid down in Articles 59, 103 or 120 of the Constitution (concerning members of the House of Representatives or Senate, ministers and members of Community or Regional Councils respectively), the investigating judge sent a copy of the file in the meantime to the Principal Public Prosecutor's Office at the Brussels Court of Appeal. 26. The Principal Public Prosecutor (procureur général) at the Brussels Court of Appeal decided that there did indeed appear to be evidence that offences had been committed by eleven prominent politicians protected by ministerial or parliamentary immunity, including Mr Coëme and Minister M. 27. On 16 March 1994 Mr Stalport was interviewed, as former head of the private office of Minister M., by two civil servants belonging to the investigation branch of the Audit Commission, acting pursuant to instructions given by the investigating judge handling the proceedings against Mr Javeau. This interview mainly concerned the relations between Mr Javeau and the private office of Minister M., and the working practices of the private office. It concentrated on three contracts dated 15 June 1989 between the Brussels Region and “I”. The verbatim record of the interview records this part of the proceedings as follows: “Q [Question] On 17 May 1989 Mr Javeau sent the private office a draft contract for a preliminary study to be carried out among small and medium-sized businesses in the Brussels area for a total fee of BEF 4,800,000 net of VAT. The study was intended to produce a list of businesses – geared for exports; – operating as sub-contractors; – receiving subsidies from the Brussels Region. A few days later you informed Javeau that his draft contract had been transmitted to the administration for scrutiny (appendices 116 to 122 of the same report). Did you have instructions to do that? Did you inform yourself about the possibility of a call for tenders for the creation of such a data bank? A [Answer] I had no instruction to do that. As for finding out about calls for tenders, I left that to the administration, for the reasons I have already mentioned. ... Q What is the procedure to be followed where the Treasury inspector's opinion on a draft contract is unfavourable? A I now know that it was possible to apply to the regional government for arbitration. At the time, I was unaware of that procedure and nobody told me about it. I was determined to get things moving and the opinion of the Treasury inspector, L. in this case, concentrated very much on the regulations and was little concerned with financial viability. In substance, I was irked by the inflexibility and resistance to change of the Treasury inspectorate. In my private office I was advised to do things differently, namely to split the contract into three parts so that the fees would be lower than the BEF 1,250,000 threshold triggering compulsory scrutiny by the Treasury inspector. I must emphasise that, despite doing things that way, I once again submitted the subdivided project to the Treasury inspector, but the second time he gave a favourable opinion. Q Here you see three contracts signed on 15 June 1989 between the Brussels Region, represented by Minister M., and the “I” association, represented by Mr Javeau (see appendices 100 to 111 of the expert report). Each of these contracts concerns a preliminary study to be carried out among small and medium-sized businesses in the Brussels area to determine which of them would be interested in appearing in a data bank as described in the initial project. Each of these contracts concerns one of the three above-mentioned criteria. They represent a total cost for the preliminary study of BEF 3,600,000 net of VAT, as compared with the initial project, which would have cost BEF 4,800,000 net of VAT. Did not that reduction result from the need to split the initial project into three, since there were three criteria, while at the same time making sure that none of the three contracts exceeded BEF 1,250,000 net of VAT, the threshold for intervention by the Treasury inspector? A I wish to make it clear that I once again requested the opinion of the Treasury inspectorate even though in each case the fee was below the BEF 1,250,000 threshold. I would also point out that splitting the project into three led to a significant reduction in cost amounting to 25% of the overall fees. Q Does the fact that Mr Javeau agreed to do the same work for BEF 3,600,000 not show that the initial contract accepted by the private office and the administration was overpriced? A Your point about the initial price is not wrong, but the agreement on BEF 3,600,000 was probably the result of a tripartite or quadripartite agreement between the private office, the administration, the Treasury inspectorate and “I”. That is a guess, because I can't remember the precise details of that transaction now. ... Q Here is the commitment slip for one of the contracts signed with “I” on 15 June 1989. This document bears the signature of Treasury inspector L., dated 30 June 1989, authorising the expenditure. Could Mr L. have opposed implementation of the contract, his opinion not having been sought, it would appear, before it was signed? A I would observe on this point that I was not obliged to submit the file to Mr L. in view of the size of the fee. But as I was working more with the administration than with the private office, the administration automatically sent the ad hoc expenditure commitment slip to the Treasury inspector for authorisation. In my opinion, Mr L. must have received the contract before it was signed. Q When these three contracts were received the administration gave them only one commitment number, which was the number of one of them (see appendices 130 and 131 of the same report). Here is another series of documents which indicate that the administrative authorities wrongly thought they were dealing with a single contract, so much so that when “I” sent them three invoices for part-payment of each of the three contracts Mr P. informed Mr Javeau that he thought “I” must have made a mistake. In fact, he requested three original copies of what he believed to be a single invoice and these copies could not bear three different numbers (see appendices 130 to 136 of the same report). So Mr L. could only have authorised expenditure in respect of one commitment slip relating to a single contract? A Yes, that's true. But it's not my fault. The paperwork was entirely a matter for the administration. ... Q As regards approval of expenditure by the Treasury inspectorate in respect of contracts where the fee was lower than its intervention threshold, was it still possible for the inspector to give his views on the advisability of proceeding? A It is true that from the administrative-law point of view his approval does not seem to be required for the commitment of such sums. However, as far as I am concerned, and in view of my lack of technical experience of budgetary matters, I preferred on all occasions to seek the approval of the Treasury inspector, seeing that for me this represented a guarantee of lawfulness from the Minister's budgetary adviser. Therefore, if Mr L. had formally refused to sign the commitment slip, I would not have gone ahead. You tell me that there is a contradiction between what I am telling you and the splitting of the original project refused by Mr L. My reply is that I was advised to do things that way and that I made sure that Mr L. approved the three new contracts. Having read through the above record, [Mr Stalport] stands by his statements and adds his signature to ours.” 28. By a 75-page letter of 30 June 1994 the Principal Public Prosecutor at the Brussels Court of Appeal transmitted to the President of the House of Representatives “a file disclosing, in [his] opinion, evidence of offences committed by Mr ... Guy Coëme ..., a former minister”. The letter went on to say: “These offences include forgery, uttering forged documents, fraud, misappropriation and corruption, committed as co-principal, as defined in Articles 66, 193, 196, 197, 213, 214, 246, 248, 491 and 496 of the Criminal Code. The acts concerned, which could be classified differently but would still constitute offences, ... were apparently committed at times when [he held] ministerial office ... Consequently, the provisions of Article 103 of the Constitution are applicable.” After a summary of the case, the file set out the facts and the evidence against Mr Coëme regarding offences said to have been committed between 30 March 1981 and 8 December 1989. The letter implicated another minister, a former minister and eight other members of parliament, although the Principal Public Prosecutor considered that in respect of six of these prosecution was probably time-barred. The Principal Public Prosecutor also mentioned a general problem concerning limitation of prosecution arising from the fact that under Article 25 of the Law of 24 December 1993, which had come into force on 31 December 1993, the limitation period had been extended from three to five years and the change applied to “all prosecutions brought before the Law's entry into force which have not yet become time-barred by that date”. The Principal Public Prosecutor accordingly submitted the following opinion: “In the present case all the offences committed before 1 January 1988, at least, are subject to limitation. In respect of the offences committed after that date the first three-year time-limit, expiring on 1 January 1991, began to run. The first procedural step causing time to begin to run again occurred in August 1989, more specifically on 25 August 1989, when the information in writing was laid before the investigating judge.” The Principal Public Prosecutor sent this report to the President of the House of Representatives to enable the House to “exercise the prerogatives conferred on it by Article 103 of the Constitution”. He further requested, in any event, the lifting of the parliamentary immunity of the three ministers implicated, including Mr Coëme and Minister M. 29. The House of Representatives, sitting on 1 July 1994 in plenary session, set up a special committee composed in accordance with the proportional representation rule. The special committee took evidence at separate hearings from the investigating judge, the court expert and Mr Coëme, assisted by his lawyers. After deliberating on 8 July 1994, the special committee made a recommendation urging the House of Representatives to commit Mr Coëme for trial in the Court of Cassation, but not the other two ministers. With regard to Minister M., it expressed the following opinion: “The special committee, rejecting all other legal argument put forward, decides to recommend that the House of Representatives should find – that [Minister M.] should not be committed for trial in the Court of Cassation in connection with contracts nos. IN B040, 050 and 060, and – that in connection with the other offences the House of Representatives is not required to give a ruling under Article 103 of the Constitution.” 30. On 14 July 1994 this recommendation was adopted in exactly the same terms by the House of Representatives by 140 votes to 39, with 2 abstentions. 31. After the House of Representatives had reached this decision, the Principal Public Prosecutor at the Court of Cassation asked the President of the Court of Cassation, in the interests of the proper administration of justice, to appoint a judge of the Court, as a matter of urgency, as investigating judge, with the task of extending and continuing the investigation of the facts in close collaboration with the investigating judge dealing with the case. 32. By a decision of 21 July 1994 the President, allowing this application, appointed Judge F. to investigate the case. 33. On 9 May 1995 Judge F. sent the case file to the Principal Public Prosecutor at the Court of Cassation, so that the latter could make his submissions. 34. As a result of elections held in April 1995 Mr Hermanus sat as a member of the Council of the Brussels-Capital Region from 6 June 1995 onwards. On 26 June 1995 the Principal Public Prosecutor at the Brussels Court of Appeal sent a letter to the Council of the Brussels-Capital Region asking it to inform him, “regard being had to the provisions of Articles 59 § 3 and 120 of the Constitution”, whether it considered it necessary “to call for a stay of the proceedings brought when Mr Hermanus had not yet been invested with the functions [of a regional councillor]”. On 10 July 1995 the Council decided to “authorise” proceedings against Mr Hermanus involving investigation of the case before a criminal division of the Brussels Court of First Instance and to “reserve its decision regarding all other forms of proceedings until it [had] received fuller information, so as to be able to assess whether these [were] compatible with the continuance in office of the member concerned”. On 25 September 1995 the Principal Public Prosecutor at the Court of Cassation asked the President of the Council of the Brussels-Capital Region “to be so good as to request the Council of the Brussels-Capital Region to give a ruling as early as possible on the present application for the authorisation of proceedings against Mr Hermanus in the Court of Cassation”. On the advice of its Criminal Proceedings Committee, the Council decided at its sitting on 18 October 1995 to give the authorisation requested, considering that “connection between the offences [had been] established by the decision of 22 September 1995 of the Committals Division of the Brussels Court of First Instance, reached after the Council's decision of 10 July 1995 [and that] the questions of connection between the offences, the proportionality between the offences and the consequences of committal for trial in the Court of Cassation, and the reasonableness of the time taken to investigate the case [were] matters for the trial court on which the Criminal Proceedings Committee [did] not have to rule”. 35. In the meantime the Committals Division of the Brussels Court of First Instance had decided, by an order of 22 September 1995, in respect of which the parties were not permitted to make submissions, to take the case out of the hands of the investigating judge it had been assigned to. 36. In addition to Mr Coëme, the prosecuting authorities at the Court of Cassation decided to prosecute before that court seven other defendants, including the other four applicants. They considered that the investigation had revealed a system for the illegal financing of the activities of certain politicians. This involved public authorities entering into contracts for the provision of over-priced services so that the provider of the services could transfer a portion of the sums paid to third parties in order to cover the costs of the activities in question. The practices concerned consisted in negotiating and signing contracts for various opinion polls or surveys to be conducted mainly by “I” for the “benefit” of government ministries. The prices stipulated in these contracts were too high in relation to the real cost of the surveys carried out and their likely benefits. In addition, care had been taken to avoid the competitive procedure laid down for contracts entered into by the administrative authorities, which might have prevented “I” from winning some of these contracts, and internal checks carried out by the administrative authorities, mainly by Treasury inspectors, which might have revealed the fact that some of them were over-priced. In order to do so, care had been taken to ensure that the thresholds which triggered application of the regulations and circulars relevant to public works and supply contracts and of the administrative authorities' internal control procedures were not exceeded. The prosecuting authorities also accused some defendants (including Mr Javeau) of obtaining the payment of certain fees by false pretences. Lastly, they considered that although two of the applicants, Mr Stalport and Mr Mazy, had obtained no financial gain from these contracts, they had taken part in drawing them up. 37. At 11 a.m. on 3 November 1995 the Principal Public Prosecutor at the Court of Cassation held a meeting with the lawyers of five of the persons under investigation, including Mr Coëme and Mr Javeau, to inform them of the measures taken for organisation of the trial. He handed them copies of the summons he intended to serve on their clients and allegedly suggested that the case should come on in early January 1996. When the lawyers protested, he apparently put off the trial until 5 February 1996, despite the reservations they expressed about the shortness of the time they had been given to prepare their clients' defence. He also allegedly told them that the trial in the Court of Cassation would follow the procedure of the ordinary criminal courts. Mr Stalport was not invited to this meeting. He explained that at that time he had not consulted a lawyer, not considering himself to be implicated. 38. By summonses served between 8 and 15 November 1995 the eight persons under investigation by the prosecuting authorities at the Court of Cassation were summoned to appear in that court on 5 February 1996, to answer various charges relating to offences allegedly committed in connection with public supply contracts awarded to “I”, at a time when Mr Coëme was a member of the government. Mr Coëme was the only defendant to whom Article 103 of the Constitution applied; the others were summoned, pursuant to Articles 226 and 227 of the Code of Criminal Investigation, on account of the connection between the offences they stood accused of and the charges Mr Coëme had to answer. 39. By a summons served on 10 November 1995 Mr Stalport was summoned to appear in the Court of Cassation to answer the charges of forgery, accepting a bribe as a civil servant and fraud committed in connection with the allocation of public contracts with which he had been associated as head of the private office of Minister M., whom the House of Representatives had not committed for trial in the Court of Cassation. According to the summons, he stood accused of the following offences: “A. the first (Mr Coëme), second (Mr Javeau), third (Mr V.), fourth (Mr Hermanus), fifth (Mr Stalport), sixth (Mr H.), and seventh (Mr Mazy) being a civil servant or public officer or the accomplice of a civil servant or public officer, with fraudulent intent or the intention of causing harm, when making out official documents of his ministry, falsified their substance or circumstances, either by drafting contracts other than those allegedly drawn up by the parties, or by representing falsehoods as true facts, with a view to: ... 3. the second (Mr Javeau) and the fifth (Mr Stalport) the fifth, being head of the private office of the Minister for the Brussels Region, with the fraudulent intent of making it possible for a contract to be awarded by circumventing the rules and procedures for public contracts and more especially with the intention of evading the scrutiny of the Treasury inspectors, substituted or caused to be substituted for a contract which had been turned down by the Treasury inspectors three contracts dated 15 June 1989, each for a sum lower than the threshold triggering intervention of the inspectorate, but which together had the same purpose as the one which had been turned down, namely research on small and medium-sized businesses; (contracts IN B 040, B 050 and B 060 – see in particular: RE, vol. IV, pp. 13 to 19 and annexes 100 to 111; C 5, f 2, p. 179; C 12, f 5, pp. 2 and 4).” 40. On 18 January 1996 the lawyers of each of the defendants requested the Court of Cassation to put back the trial on the ground that it was impossible for them, in spite of all their efforts, to prepare their clients' defence satisfactorily. 41. As soon as the trial began, on 5 February 1996, the President of the Court of Cassation announced that the case would be investigated in accordance with the provisions of Article 190 of the Code of Criminal Investigation. The hearing was given over to consideration of an application for an adjournment lodged by several defendants to give them the time they needed to be able to conduct their defence in accordance with their rights. The defendants concerned lodged pleadings to that end. By an interlocutory judgment of 6 February 1996 the Court of Cassation ruled that these defendants had had sufficient time to prepare their arguments regarding both the criminal and the civil aspects of the case. 42. At the hearing on 6 February 1996 Mr Coëme filed a first pleading concerning the fact that no legislation had been enacted to implement Article 103 of the Constitution, despite the expressly stated intention of the National Congress. This legislative deficiency had caused the provision originally intended to be transitional, adopted by the National Congress to fill the legal vacuum – namely Article 134 § 1 of the Constitution, which had later become the transitional provision of Article 103 – to remain in force indefinitely. He submitted in the first place that although the constitutional revision of 5 May 1993 had replaced the words “and in so doing classify the offence and determine the appropriate sentence” in the transitional provision of Article 103 of the Constitution with “in the cases contemplated by the criminal law and applying the penalties laid down therein”, this constitutional revision could not apply retrospectively to the charges against him concerning offences committed between 29 March 1981 and 30 November 1990 without breaching Article 7 § 1 of the Convention. He further submitted that, although the transitional provision gave the Court of Cassation discretion to try ministers indicted by the House of Representatives as regards the question of their guilt and the penalties to be imposed, it did not confer on either the Court of Cassation or the House of Representatives an analogous power concerning the procedure to be followed in such proceedings. The Court of Cassation had therefore imposed the applicable procedural rules on its own authority, contrary to the principle that a tribunal's procedure must be established by law. 43. At the hearing on 6 February 1996 Mr Coëme filed a second pleading concerning the procedure followed by the special committee of the House of Representatives and reference of the case to the Court of Cassation. 44. At the hearing on 7 February 1996 Mr Stalport filed a pleading arguing that no provision of Belgian law permitted his committal for trial in the Court of Cassation as court of first instance. In a separate pleading he further submitted that there was no connection between the offence he stood accused of and the offence allegedly committed by Mr Coëme. If the Court of Cassation thought otherwise, it should refer a preliminary question to the Administrative Jurisdiction and Procedure Court as to whether legal provisions which permitted a defendant who was not a minister to be committed for trial in the Court of Cassation infringed the principles of equality and non-discrimination. He therefore asked the Court of Cassation to rule that it did not have jurisdiction to try him in the absence of any connection or, in the alternative, to submit to the Administrative Jurisdiction and Procedure Court the following preliminary question: “In so far as Articles 226 and 227 of the Code of Criminal Investigation have the effect of referring to the Court of Cassation, sitting as a court of trial, criminal proceedings against a defendant who is not a minister, do they breach Articles 10 and 11 of the Constitution taken together with Articles 12, 13 and 147 of the Constitution?” 45. At the hearing on 8 February 1996 Mr Coëme filed a third pleading in which he asked the Court of Cassation to stay its decision on the prosecution's submissions until the Administrative Jurisdiction and Procedure Court had answered the following preliminary question: “Does the extension of the limitation period for criminal proceedings resulting from Article 21 of the Law of 17 April 1978 containing the preliminary part of the Code of Criminal Procedure, as amended by Article 25 of the Law of 24 December 1993, in so far as that provision applies to all prosecutions brought before its entry into force which were not yet time-barred on that date and introduces longer limitation periods, create discrimination contrary to Articles 10 and 11 of the Constitution in relation to the situation of persons who are subject, on account of the date on which their offences were committed, to the limitation period laid down in the former version of the above-mentioned Article 21?” 46. At the beginning of the hearing on 12 February 1996 the President read out an interlocutory judgment in which the Court of Cassation ruled that the case had been lawfully referred to it, that it had jurisdiction to hear it and that it was not necessary to refer to the Administrative Jurisdiction and Procedure Court the preliminary questions proposed by the defendants on the principle of connection. In the reasons for its judgment the Court of Cassation held: “The transitional provision in Article 103 of the Constitution ... applies both to the offences committed after the constitutional revision of 5 May 1993 and to those committed before it”. It went on to say that its discretion was limited by the obligation to follow certain procedural rules and added: “Where the Court of Cassation is sitting as a court of trial it must comply, in procedural matters, with the provisions – directly applicable in Belgian law – of the Convention for the Protection of Human Rights and Fundamental Freedoms and the International Covenant on Civil and Political Rights, with the Constitution, with the rules of the Judicial Code, with the common provisions applicable to all criminal proceedings and with the general principles of law. In giving the Court of Cassation the power to try ministers 'in those cases where the criminal law so provides', the framers of the Constitution were necessarily referring, as regards the form of procedure, to the one laid down by Parliament for such cases, namely the Code of Criminal Investigation, in so far as that is compatible with the provisions governing procedure before the Court of Cassation when it sits as a full court. To that extent, this Court will apply the procedural rules laid down in Book II, Part One, Chapter II of the Code of Criminal Investigation, entitled 'The criminal courts'. These rules, which are prescribed by law, accessible and foreseeable as to their effects, guarantee full exercise of the right to due process and to a fair trial. In applying existing rules, the Court is not usurping the function of the legislature.” 47. The Court of Cassation ruled as follows on the connection between the offences charged and on the preliminary questions on that subject: “As regards connection between the offences The provisions of Articles 226 and 227 of the Code of Criminal Investigation are not the expression of a general principle of law, but form a rule which is common to and applicable to all criminal proceedings. It is not necessary for a connection to have been previously found by a court of investigation. It is for the court of trial to which a case has been referred by a lawful committal decision or direct summons to assess for itself whether there is a connection and, accordingly, the scope of the case and its jurisdiction with regard to the connected offences. The effect of a connection is that all joint principals and accomplices implicated in the connected offences must be tried together by the same court. It follows that where there is a connection between offences with which a minister has been charged and offences of which other defendants stand accused the jurisdiction given by the Constitution to the Court of Cassation requires the trial of all the accused to be conducted by that court, which is highest in rank. Article 147 of the Constitution delimits the powers of the Court of Cassation when it rules on appeals on points of law. The Court's powers to try ministers include, thanks to the principle of connection, the power to try other defendants for whom, in that situation, to the exclusion of any other, it is the court empowered by law to try them for the purposes of Article 13 of the Constitution. The rules on connection, which are generally applicable, do not entail an arbitrary difference in treatment between the defendants for the purposes of Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Moreover, the Court will have to assess, when it looks into the merits of the case, whether there is a connection between the offences listed in the summons, and on this point the objection should be dealt with together with the merits. ... As regards discrimination and the preliminary questions The accused have alleged that the fact that they have been arraigned before the Court pursuant to the rules on connection constitutes discrimination prohibited by Articles 10 and 11 of the Constitution. They have asked for preliminary questions to be submitted to the Administrative Jurisdiction and Procedure Court seeking a ruling as to whether Articles 226 and 227 of the Code of Criminal Investigation, in so far as their effect is to refer to the Court of Cassation, sitting as a court of trial, the prosecution of a defendant who is not a minister, are in breach of Articles 10 and 11 of the Constitution. The defendant Stalport raised the same question, referring to the same Articles of the Constitution taken together with Articles 12, 13 and 147 thereof. Furthermore, the defendant Javeau asked for a question to be submitted to the Administrative Jurisdiction and Procedure Court on a contradiction between Articles 10 and 11 of the Constitution and Articles 226, 227, 479 and 501 § 2 of the Code of Criminal Investigation, while the defendants V., Hermanus and Mazy asked for a question on a contradiction between the above-mentioned Articles 10 and 11 and Articles 226, 227, 307, 501 § 2, 526 and 540 of the Code of Criminal Investigation and Articles 30, 31, 566, 753, 856, 1053, 1084 and 1135 of the Judicial Code 'in that they laid down general principles of law permitting the Court of Cassation to try them'. Even if deprivation of the possibility of defending oneself before the courts of investigation and of access to a second level of jurisdiction and cassation proceedings did constitute a violation of Articles 10 and 11 of the Constitution, those Articles would be violated not by the provisions complained of in the pleadings but by Article 103 of the Constitution, which gives the Court of Cassation jurisdiction to try ministers under the conditions it lays down. Article 26 § 1 (3) of the Special Law of 6 January 1989 on the Administrative Jurisdiction and Procedure Court provides that that court shall give a ruling, in the form of a judgment, on the merits of questions concerning contravention of Articles 10, 11 and 24 of the Constitution by one of the statutes, decrees or rules contemplated by Article 134 of the Constitution. The defendants' applications do not come within the scope of the above-mentioned Article 26.” 48. After this judgment had been delivered, one of the defence lawyers, speaking on behalf of all the accused, said that the Court of Cassation was laying down the rules of the procedure to be followed on its own authority and expressed serious reservations about compliance with Article 6 of the Convention. He also asked whether the Court of Cassation intended to ask the registrar, pursuant to Article 190 § 2 of the Code of Criminal Investigation, to read out the 30,000 pages in the file, explaining that, having stated that it intended to follow the practice of the criminal courts, it was not right for the Court of Cassation to apply some rules but not others. The Court of Cassation did not grant this request. 49. At the hearing on 12 February 1996 the Principal Public Prosecutor began an address presenting the facts of the case, which continued on 13 February. At the beginning of this address he said: “I shall deal with the charges against Mr Coëme, Mr Javeau and Mr V., but in respect of these last two defendants only in so far as the charges concerned are closely connected with those against Mr Coëme. The Principal Advocate-General will speak about the other charges against Mr Javeau and Mr V. and those against Mr Hermanus.” 50. According to Mr Javeau and Mr Stalport, the President of the Court of Cassation interrupted the Principal Advocate-General's address at one point to remind him that the purpose of that stage of the proceedings was not for the prosecution to present its case. 51. On 16 February 1996 the Court of Cassation began to take evidence from the accused. It also heard the parties' submissions on the subject of fixing a timetable for the further proceedings and the order in which submissions should be made. The prosecution suggested that the defence case should be heard before the prosecution's. After deliberation, the President announced that the Court had “fixed the order for submissions in the further proceedings as follows: 1. Examination of the accused (continued) 2. Civil party's submissions 3. Prosecution submissions 4. Defence submissions 5. Replies, if any”. 52. On 20 February 1996 Mr Stalport was examined, together with Javeau, about the offences he stood accused of. The record of the hearing on 20 February includes the following information: “At the public hearing of the Court of Cassation, sitting as a full court, on 20 February 1996, in the formal hearing room, where the following members were present and sitting: President Stranard, Vice-President D'Haenens, Division President Marchal, Judges Ghislain, Rappe and Charlier, Division President Baeté-Swinnen, Judges Willems, Lahousse, Jeanmart, Verheyden, Verougstraete, Forrier, Boes, D'Hont, Waûters, Dhaeyer, Bourgeois and Huybrechts; Principal State Counsel Baron J. Velu, Principal Advocate-General du Jardin, Chief Registrar Vander Zwalmen, assisted by Registrar Sluys and Deputy Registrar Van Geem, ... The accused Stalport stated: I was questioned for the first and last time on 16 March 1994 in the context of an investigation into allegations against [Minister] M. I was told that I was being interviewed as a witness and that I would not have to be cross-examined in his presence. At no time did I have the opportunity to present my case. I confirm the statements I made at the time of that interview. ... Question to Mr Stalport: Is it true that when you received the draft contract you transmitted it without further formality to the administration for scrutiny and that when the administration gave a favourable opinion you submitted the file to the Treasury inspector on 23 May 1989? Mr Stalport's reply: Yes, the project was part of a package submitted to the administration with a total cost of BEF 20,000,000. It was that [amount] which caused the unfavourable opinion, and also in part the points of divergence between the opinions of the administration and the Treasury inspectorate. ... Question to Mr Stalport: Why, in your opinion, notwithstanding the unfavourable opinion of the Treasury inspectorate, were three contracts signed on 15 June 1989 which now form the basis of the charge against you, and which, taken together, had exactly the same purpose, although the cost of each of them was limited to BEF 1,200,000? Mr Stalport's reply: After the refusal I asked the Minister about it. He confirmed that it was politically desirable to go ahead. I looked for a cheaper solution. A few weeks later my colleagues submitted a new project to me. Question to Mr Javeau: Does that not show that the original fee of BEF 4,800,000 was too high? Mr Javeau's reply: No, Mr Stalport has already answered that question. We altered the project. Question to Mr Stalport: According to the procedure in force, was the Minister not required, in the event of the Treasury inspector's refusal to approve the project, to ask the Budget Minister to arbitrate, and, should the latter's opinion also be unfavourable, to use the possibility of bringing the matter before the Cabinet, which would have had the last word on the subject? Mr Stalport's reply M. was also the Budget Minister. We wanted to launch a much more limited project and we did a preliminary study. I do not think the solution of splitting into three was adopted to evade Treasury scrutiny. If we had followed the administrative procedures the project would not have got off the ground. My job as head of the private office was to get things moving quickly. Although we did not follow the classic procedure, the project was nevertheless subjected to Treasury scrutiny. ... Question to Mr Stalport: Who in the private office decided to disregard the Treasury inspector's unfavourable opinion and split the contract up in such a way as not to be bound by the opinion in question? Mr Stalport's reply: The decision to continue was taken by the Minister, the solution consisting in a reduction of the scope of the original project. Whatever the amount committed, the Treasury inspectorate had the power to supervise and give an opinion. Even though the contract was limited from the financial point of view, everything was above board. ... Question to Mr Stalport: You stated in substance (p. 9540) that you were irked by the inflexibility and resistance to change of the Treasury inspectorate and that in your private office you were advised to do things differently, namely to split the contract into three parts so that the fees would be lower than the BEF 1,250,000 threshold triggering compulsory scrutiny by the Treasury inspectors, and you went on to say that despite doing things that way you had once again submitted the subdivided project to the Treasury inspector, who the second time had given a favourable opinion, and that splitting the project into three had led to a significant reduction in cost amounting to 25% of the overall fees. Do you stand by that assessment of your conduct? Mr Stalport's reply: Yes, because the Treasury inspection procedure took some time. We wanted to work quickly and we came back to another way of doing things, which nevertheless received the Treasury inspectorate's approval, but more quickly, even though supervision was maintained. I did not have much time and I had to find a solution by using a faster procedure, namely approval of the order to pay. I knew that I had to give an account of my actions to the Minister and I insisted that the Treasury inspector sign each file, as was done even where this was not mandatory. Question to Mr Stalport: Did you know of the memo sent to Mr C., a minister of the Executive Council of the Brussels-Capital Region on 11 September 1989 by Mr L., Inspector-General at the Treasury (p. 9270), pointing out that it was highly questionable to continue to implement the three contracts and calling on him to block payment by the Region of all invoices even where, from the formal point of view, these had been legally drawn up? Mr Stalport's reply: I found out about Mr L.'s criticisms afterwards. I do not know whether Mr L. knew of only one contract. In the allegations I think he referred to three contracts of BEF 1,500,000. So he was aware that there were three contracts. In reply to the Court's question, Mr Javeau stated: Splitting the contract was a means of dealing with real difficulties that had cropped up. Question by the Principal Advocate-General: The administration received three contracts and made only one commitment, believing that it was dealing with three copies of a single contract. Does Mr Stalport remember this misunderstanding, which happened with all three contracts? Mr Stalport's reply: The error would have been pointed out to me, but I had left on 18 June 1989.” 53. On 4 March 1996 Mr Stalport filed a new pleading in which he argued that there was no connection between the charges against him and those against Mr Cöeme and that he should therefore stand trial in the appropriate place, namely the Criminal Court. 54. During the trial Mr Hermanus asked the Court of Cassation to submit a preliminary question to the Administrative Jurisdiction and Procedure Court about limitation of the prosecution. In the alternative, he requested it to find that the proceedings against him were time-barred. He further submitted that there was no connection between the offences he had been charged with and those Mr Coëme stood accused of. In addition, he argued that his case had not been heard within a “reasonable time”. As regards the merits, he submitted that he had acted without any criminal intent. 55. The Court of Cassation gave judgment on 5 April 1996. It decided firstly that there was a connection between the offences with which Mr Coëme had been charged and those with which the other defendants had been charged, ruling as follows: “For the purposes of Articles 226 and 227 of the Code of Criminal Investigation, a connection is the link between two or more offences. By its nature it requires, with a view to the proper administration of justice, and subject to the right to due process, that the cases be dealt with together and by the same court, which may thus determine whether each element of the alleged offences has been made out, and assess the admissibility of the evidence and the guilt of each of the defendants. [Mr Coëme] and the [other] defendants have stood trial together for offences brought to light by the same investigation. These offences formed part of a system run by Camille Javeau which placed the 'I' association at the point of contact between the financial interests of scientific research and the personal interests of its directors and third parties. By the admission of Camille Javeau, this system consisted in seeking to sign contracts with the public authorities for surveys to be carried out by the 'I' association or by the [...] Institute, each of these contracts being accompanied by advantages for politicians whose power of decision-making, influence or promising future were intended to ensure the effectiveness and continuity of the system. All the offences [Mr Coëme] and the [other] defendants were charged with link in with this system in such a way that there is a connection between them which justifies application of Articles 226 and 227 of the Code of Criminal Investigation. Even if such application did cause in the present case all the disadvantages complained of by the defendants, it has not hindered the full exercise of their right to challenge the admissibility of the proceedings or the truth of the charges against them, to raise any argument they chose in their defence or to submit to the Court any applications they considered useful for the trial of their case.” 56. The Court of Cassation also refused, in the following terms, to submit a preliminary question to the Administrative Jurisdiction and Procedure Court on the subject of limitation: “Guy Coëme submitted that extension of the limitation period 'in so far as it applie[d] to all prosecutions brought before its entry into force which were not yet time-barred on that date and introduce[d] longer time-limits, create[d] discrimination contrary to Articles 10 and 11 of the Constitution in relation to the situation of persons who [were] subject, on account of the date on which their offences were committed, to the limitation period laid down in the former version of Article 21'. Jean-Louis Mazy submitted that the law introducing the new limitation period applied to all prosecutions brought before its entry into force which were not yet time-barred on that date, and that limitation of prosecution accordingly depended on the date of procedural steps causing time to begin to run again. He argued on that basis that in the present case application of Articles 25 and 26 of the Law of 24 December 1993 had created discrimination prohibited by Articles 10 and 11 of the Constitution. Merry Hermanus likewise submitted that 'only the date of procedural steps causing time to begin to run again for limitation purposes determine[d] whether the new law or the old should be applied'. [Mr Coëme] and the [other] defendants mentioned above requested the Court, in their final written submissions, to refer to the Administrative Jurisdiction and Procedure Court a preliminary question concerning what they alleged to be a contradiction between Articles 10 and 11 of the Constitution and Article 25 of the Law of 24 December 1993, which extended periods of limitation. It appears from those final written submissions that the inequality of treatment they complained of results solely, according to the defendants themselves, from the date on which procedural steps in the investigation or prosecution were taken and from the effects of such steps on the running of time for the purposes of limitation, but not from the provisions of Article 25 of the Law of 24 December 1993. Thus, they are criticising not a distinction allegedly created by that Law, but the necessary effects of any application of the law on criminal procedure in the course of time. The questions raised do not fall within the scope of Article 26 of the Special Law of 6 January 1989 on the Administrative Jurisdiction and Procedure Court, and there is accordingly no call to ask them.” 57. The Court of Cassation further held that the proceedings against Mr Coëme and Mr Hermanus were not time-barred, ruling in the following terms: “In the field of criminal procedure, new legislation is of immediate effect, so that it applies to all criminal proceedings brought before the date of its entry into force which are not yet time-barred on that date pursuant to the previous legislation. Prosecution of offences not subject to limitation on 31 December 1993 will become time-barred, unless the running of time has been suspended, on expiry of a period of five years from the time of the offences , which may be extended where the case arises by a further period of five years from any act causing time to begin to run again lawfully performed before expiry of the first five-year period. Since limitation of prosecution consists in the extinction, in society's interest, through the lapse of a certain length of time, of the power to prosecute a suspect, statutes of limitation do not affect the substance of the law. Where they extend the limitation period they do not aggravate the penalty applicable at the time when the offence was committed or punish an act or omission which was not punishable at the time it was committed. Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 15 of the International Covenant on Civil and Political Rights are not applicable to them. The Court must take the date of the judgment as the material time for assessing once and for all whether prosecution is time-barred, and the nature of the offence is determined not according to the penalty applicable but according to the penalty imposed. From the outset, limitation of prosecution of an act which in principle constitutes an offence may be influenced by the penalty imposed. If the Court, after declaring the offences of forgery and uttering forgeries made out, were to accept that there were extenuating circumstances, thus altering the nature of these crimes [crimes] and giving them the status of less serious indictable offences [délits], the limitation period for these offences would be the one laid down for délits, namely five years. Where a number of criminal acts are committed successively in execution of a single criminal design and thus form only one offence, that offence is only consummated, and the running of time for the purposes of limitation only begins, with regard to all of the acts concerned, when the last of them is committed, provided, however, that each previous criminal act is not separated from the later criminal act by an interval longer than the applicable limitation period, unless the running of time has been retriggered or suspended. ... The offences for which [Mr Coëme] and [Mr Hermanus] have stood trial were committed: – in the case of G. Coëme, between 29 March 1981 and 1 December 1989, the last being committed on 30 November 1989; ... – in the case of Mr Hermanus, between 1 December 1987 and 1 March 1988, the last being committed on 29 February 1988; ... These offences, if made out, constitute execution of a single criminal design. For each of the defendants the running of time for the purposes of limitation only began, with regard to all of the offences in which they are implicated, when the last of those offences was committed, which in the present case was not separated from the others by an interval longer than the limitation period in force. The Law of 24 December 1993, which raised from three to five years the limitation period for the prosecution of less serious indictable offences, and consequently of crimes reclassified as such, is applicable to [Mr Coëme] and [the other defendants] since the three-year limit had not been reached when that Law came into force and the running of time had been validly retriggered as regards [Mr Coëme] and [the other defendants] on 22 February 1991 by the Audit Commission's report no. 480 (p. 14690), an investigative measure carried out during the former three-year limitation period. ... Consequently, the original limitation period of five years began to run: – in the case of G. Coëme, on 30 November 1989; ... – in the case of Mr Hermanus, on 29 February 1988. The running of time during this period was validly retriggered on 10 June 1992 by the Audit Commission's report no. 2337. It follows that prosecution is not time-barred in respect of any of the offences referred to in the summons.” 58. The Court of Cassation found Mr Coëme guilty of most of the offences he had been charged with and sentenced him to two years' imprisonment, suspended for five years, and a fine of BEF 1,000, adjusted to BEF 60,000. It also disqualified him from exercising any of the rights listed in Article 31 of the Criminal Code for a period of five years and ordered him jointly with another defendant to pay the civil party – “I” – the sums of BEF 476,000, BEF 31,970 and BEF 42,070. 59. The Court of Cassation found Mr Mazy guilty as charged and sentenced him to nine months' imprisonment, suspended for three years, and a fine of BEF 500, adjusted to BEF 30,000. 60. The Court of Cassation sentenced Mr Stalport to six months' imprisonment, suspended for one year, and a fine of BEF 26, adjusted to BEF 1,560, after declaring him guilty as charged on the basis of the following considerations: “On 30 May 1989 the Treasury inspectorate gave an unfavourable opinion (p. 18684) on a draft contract in which the 'I' association undertook to carry out for the Brussels Region 'a preliminary study of all businesses in the Brussels area', the total cost amounting to BEF 4,800,000 net of VAT (p. 18689, at 18694). On 15 June 1989 three contracts, each for an inclusive price of BEF 1,200,000, were signed by [Minister] M., representing the Brussels Region, and Camille Javeau, representing 'I' (p. 18699 at 18710). In these contracts 'I' undertook to carry out a 'preliminary study' (a) among small and medium-sized businesses operating as sub-contractors (first contract); (b) among all businesses receiving subsidies from the Brussels Region' (second contract); and (c) among all small and medium-sized businesses geared for exports (third contract). On 15 June 1989, when these contracts were signed, they were transmitted under the Minister's signature to the administration (p. 18681). On 30 June 1989 the Treasury inspectorate approved the commitment slip for one of the three contracts without making any comment (p. 18680). It is clear from a comparison of the initial draft contract with the three new contracts that, although the scope and price of the initial contract were reduced in the three new contracts, it was still the same concept with the same initial aim, in other words the same work. It is apparent from the statements of Jean-Louis Stalport (p. 9540)[] and Camille Javeau (p. 2905)[] that the purpose of severing the original contract was to evade the mandatory scrutiny of the Treasury inspector. The approval of the Treasury inspector alluded to by Jean-Louis Stalport is the countersignature required for commitment of the expenditure, which was added on 30 June 1989, after the contract was signed, and reveals nothing about the desire for transparency alleged by the defendant (p. 1304). Neither the assertion that, if the contract had not been severed, it would have been approved in any case nor the assertion that the three contracts were submitted to the non-mandatory scrutiny of the Treasury inspector can justify the artificial severance of the contract. The fraudulent intent required for the charge to be made out need exist only in the mind of the perpetrator of the offence. It is sufficient for co-principals to have provided necessary assistance in the commission of the offence or to have directly caused it to be committed, to have had positive knowledge of the facts constituting the main offence and to have conspired, as defined by law, to commit the offence. With the fraudulent intent of satisfying the request of Camille Javeau, approved by Minister M., Jean-Louis Stalport provided the necessary assistance in the commission of the offence within the time agreed. ...” 61. The Court of Cassation then found Mr Hermanus guilty as charged and sentenced him to one year's imprisonment, suspended for five years, and a fine of BEF 500, adjusted to BEF 30,000. It also disqualified him from exercising any of the rights listed in Article 31 of the Criminal Code for a period of five years. 62. The Court of Cassation held that Mr Hermanus had been tried within a reasonable time, on the following grounds: “It appears from the case file – that on 7 August 1989 the Audit Commission transmitted the initial report to the Brussels public prosecutor (p. 1120, at 1094); – that the information in writing calling for an investigation in respect of Camille Javeau and a person or persons as yet unidentified was lodged on 25 August 1989 (p. 1085); – that numerous reports had to be compiled on account of the many interviews and investigative measures made necessary by the nature of the offences the defendants were accused of; – that the nature of the offences made it necessary on 20 October 1989 to appoint a court expert (p. 283) to study and analyse thousands of documents and items of computer data; that in that connection it should be noted that the accounts of the 'I' association and those of the ... Institute were interconnected in such a way as to complicate the expert's task; that after filing a preliminary memorandum on 26 December 1989 (p. 358, at 337), an analysis of Camille Javeau's bank accounts on 26 November 1990 (p. 373, at 367), a memorandum replying to Camille Javeau's observations on 6 December 1990 (p. 460, at 440) and a memorandum on the French-speaking Community's contract no. D/100 on 24 September 1991 (p. 664, at 659) the expert filed the successive parts of his report on 29 December 1993, 7 January 1994, 21 January 1994, 4 February 1994, 3 March 1994 and 22 March 1994 (pp. 18256 at 18157, 17939 at 17769, 19406 at 19156, 18909 at 18811, 17285 at 17228, and 20576 at 20464); – that while the expert was compiling his report and later the investigation continued without a break, as evidenced by the records and inventories; – that the investigative measures taken as a result show that the interconnections between the offences made it necessary to verify the statements of the numerous persons concerned and to cross-check the evidence obtained before the prosecution could make their submissions; – that as early as 30 June 1994 the file was communicated to the President of the House of Representatives by the Principal Public Prosecutor at the Brussels Court of Appeal on account of the fact that the file appeared to contain evidence that offences had been committed by Guy Coëme, P. M. and W. C. at a time when they held ministerial office and that the latter was still a minister on the date when the file was sent (p. 26645, at 26572). At its meeting in plenary session on 14 July 1994 the House of Representatives indicted Guy Coëme and committed him for trial in the Court of Cassation. On 21 July 1994, allowing an application by the Principal Public Prosecutor, the President of the Court of Cassation appointed Judge F. as the investigating judge in the present case with the task of extending and continuing the investigation of the facts in close collaboration with Investigating Judge V.E., who, as matters stood, remained responsible for the same offences in so far as there was evidence of offences committed by persons other than Guy Coëme. On 9 May 1995 [Judge F.] communicated his file to the Principal Public Prosecutor at the Court of Cassation. On an application made on 15 June 1995 by the Principal Public Prosecutor at the Brussels Court of Appeal, the Council of the Brussels-Capital Region, sitting on 10 July 1995, authorised the prosecution of Regional Councillor Merry Hermanus 'by investigation of the case before a criminal division of the Brussels Court of First Instance'. When Investigating Judge V.E. was taken off the case by order of the Committals Division on 22 September 1995, the Council of the Brussels-Capital Region, sitting on 18 October 1995, decided, allowing an application of 25 September 1995 by the Principal Public Prosecutor at the Court of Cassation, to authorise the prosecution of Merry Hermanus in this Court. The summons to appear for trial on 5 February 1996 was signed on 8 November 1995. On account of the possible connection between the offences with which [Mr Coëme] and [the other defendants] had been charged, the case against each of them could not be dissociated from the case against the others, regard being had to procedural rules. Accordingly, the Court finds no delay in the prosecution of the case. ...” 63. Mr Javeau was sentenced to two years' imprisonment, with half of that term suspended, and a fine of BEF 500, adjusted to BEF 30,000. 64. As a result of his conviction Mr Stalport had to resign from his position as administrator of various public limited companies under Belgian law, pursuant to Article 1 of the royal decree of 24 October 1996. The decision to disqualify Mr Hermanus from exercising the rights listed in Article 31 of the Criminal Code deprived him of all his functions, namely the posts of regional councillor, deputy mayor, secretary-general of the Ministry of the French-speaking Community and chairman of the SDRB. 65. The relevant provisions of the Constitution read as follows: “Individual liberty is guaranteed. No one may be prosecuted save in the cases and under the procedure prescribed by law ...” “No one may be removed against his will from the jurisdiction of the court empowered by law to try him.” “No member of either House may be committed for trial, prosecuted by direct summons or arrested in connection with a criminal matter while Parliament is in session without the authorisation of the House to which he belongs, except in cases where an offence is discovered while it is being committed. ... The detention or prosecution of a member of either House shall be stayed throughout the session if the House concerned so requires.” “Any member of a [regional or community] council shall enjoy the immunities laid down in Articles 58 and 59.” “There shall be a Court of Cassation for Belgium. The Court of Cassation shall not determine cases on their merits, save for the trial of ministers and members of community or regional governments.” 66. The first paragraph of Article 103 of the Co-ordinated Constitution of 17 February 1994 (former Article 90 of the Constitution of 7 February 1831) provided: “The House of Representatives is empowered to indict ministers and commit them for trial in the Court of Cassation, which alone shall have jurisdiction to try them, sitting as a full court, save as provided by statute with regard to a civil action brought by an injured party and crimes or less serious indictable offences allegedly committed by ministers otherwise than in the performance of their official duties.” 67. The second paragraph of Article 103 of the Co-ordinated Constitution of 17 February 1994 (former Article 134 of the Constitution of 7 February 1831) provided: “The cases of responsibility, the penalties to be imposed on ministers and the manner of proceeding against them, either on a charge accepted by the House of Representatives or as the result of a prosecution brought by the injured parties, shall be laid down by law.” The Constitution of 7 February 1831 included an Article 139 which provided in particular: “It is necessary to make provision, in separate legislation, and as soon as possible, for the following: ... 5. the responsibility of ministers and other government agents.” This Article was repealed on 14 June 1971. 68. The Law of 12 June 1998 amending the Constitution replaced Article 103 of the Constitution by a new provision which states: “Ministers shall be tried only by the Court of Appeal”, whether for “offences they have allegedly committed in the performance of their duties” or for “offences they have allegedly committed otherwise than in the performance of their duties for which they are tried during their term of office” (Article 103 § 1). The new text further provides: “The procedure for the prosecution and trial of ministers shall be laid down by law” (Article 103 § 2). 69. The relevant legislation is the Special Law of 25 June 1998 governing the criminal responsibility of ministers (and the Special Law of 25 June 1998 governing the criminal responsibility of members of community and regional councils). “The Brussels Court of Appeal alone is empowered to try a minister for offences allegedly committed in the performance of his official duties”, whereas “for the trial of a minister during his term of office for offences he has allegedly committed otherwise than in the performance of his duties the courts having jurisdiction shall also include the Court of Appeal for the place where the offence was committed, the place where he lives or the place where he has been found” (Article 1). The Special Law lays down the rules for the conduct of the prosecution and investigation, the procedure before the Court of Appeal and the procedure for an appeal on points of law. Title VI of the Special Law lays down two special provisions, one of these being Article 29, which expressly provides: “Co-principals and accomplices implicated in an offence for which a minister is prosecuted and the perpetrators of connected offences must be prosecuted and tried at the same time as the minister.” 70. Pending the enactment of a law on procedure, and in order to avoid the paralysis of the criminal justice system in cases concerning ministers during the time it would take to bring in legislation, the National Congress adopted in 1831 a transitional provision specifying the scope of the jurisdictions of the House of Representatives and the Court of Cassation. In its original version, former Article 134 of the Constitution, which later became the transitional provision of Article 103, was worded as follows: “Until such time as provision for the purpose has been made by law, the House of Representatives shall have discretion to indict a minister and the Court of Cassation to try him, and in so doing classify the offence and determine the appropriate sentence.” 71. In Volume II (Political and administrative laws) of the Novelles survey of 1935 it was argued that this provision concerned both ministers' ordinary responsibility and a responsibility specific to their official duties, the following point being made (nos. 723 to 725, p. 236): “Where it is a matter of offences defined in the Criminal Code, the penalties laid down in that Code are applicable. Where, on the contrary, the Criminal Code has nothing to say about the offences concerned, on a provisional basis, pending the enactment of legislation governing the question, the House of Representatives has discretion to indict ministers and the Court of Cassation to try them, and in so doing classify the offence and determine the appropriate sentence.” 72. In his Mercuriale address of 1 September 1976 marking the opening of a new judicial session (Journal des Tribunaux, 1976, pp. 653-54, at 4 and 5, and pp. 658-59, at 19) Principal Public Prosecutor Delange said that under the transitional provision of Article 103 of the Constitution (Article 90 at that time) ministers were criminally responsible for all offences defined by the criminal law, the Court of Cassation not having any discretion in the matter (it could, at the most, add charges and penalties but not reduce ministers' ordinary criminal responsibility in any way). He further observed: “As regards the procedure in the Court of Cassation, it would appear that in the absence of legislation the ordinary rules of criminal law should apply by analogy” (p. 669). 73. In the constitutional revision of 5 May 1993 the transitional provision of Article 103 was amended to read as follows: “Until such time as provision for the purpose has been made by means of the law referred to in paragraph 2, the House of Representatives shall have discretion to indict a minister and the Court of Cassation to try him in the cases contemplated by the criminal law and applying the penalties laid down therein.” 74. However, as Parliament never legislated save on a temporary basis, the transitional provision remained in force until the constitutional revision of 1998 (see paragraph 68 above). 75. Various laws for the implementation of Article 103 of the Constitution have been adopted. These were temporary responses to specific circumstances. 76. The first of these laws was enacted after a duel in 1865 between a member of the House of Representatives and the Minister of Defence. Both men had used their weapons. As this conduct constituted a criminal offence, the Principal Public Prosecutor at the Court of Cassation expressed the intention of preferring charges. Since one of the two antagonists was a minister, it was for the House of Representatives to indict him and an application was made to that effect. However, the House of Representatives allowed this application only on condition that legislation was first brought in. 77. In the report of the special committee appointed by the House to consider the constitutional issues arising from this duel, Mr Delcour made the following comments on the bill that had been tabled: “Our committee, gentlemen, was also of the opinion that the Court of Cassation has jurisdiction to rule on offences committed by accomplices of a minister or connected offences which might be imputed to persons other than the minister facing charges. It referred to general legal principles. It would not be rational, in Mr Dalloz's opinion, for the Court of Cassation, which, on account of the large number of judges who sit in it, its rank in the judicial hierarchy and the solemnity of its procedure, provides defendants with more safeguards than the ordinary courts, not to have jurisdiction to rule on offences committed by accomplices and connected offences. Provision is already made for that in Article 479 of the Code of Criminal Investigation. Where a public officer charged with an offence has accomplices who are not themselves public officers, the public officer does not follow his accomplices to the Criminal Court, they follow him to the higher court. ... It is undoubtedly in the general interest for a minister who has committed a crime or less serious indictable offence to be handed over to the courts, because, as I observed above, no one may lay claim to impunity in Belgium. But side by side with this general interest there is another public interest which is no less respectable, that of the minister's complete freedom to manage public affairs at any particular time. The House of Representatives is the judge of this latter interest, to which the former, it would seem, must give way in certain circumstances. Let us assume that the Minister of Defence has committed an indictable offence: the country is in a critical situation and he alone can properly ensure its defence. In such a serious situation, should not the House of Representatives be able to make the interests of justice take second place behind that other, even weightier public interest, the defence of the State and public safety? ... The Court of Cassation will observe the procedure laid down by the Code of Criminal Investigation, according to the nature of the offence referred to it. When dealing with a less serious indictable offence, it will comply with the relevant existing provisions, whereas when dealing with a crime it will comply with the Code's provisions governing assize courts. In the latter case, since the Court of Cassation sits without a jury, it is clear that the provisions of the Code of Criminal Investigation concerning that part of the procedure cannot be applied.” 78. The law entitled “Law on offences committed by ministers otherwise than in the performance of their official duties” was adopted on 19 June 1865. It provided, inter alia: “Crimes and less serious indictable offences committed by a minister otherwise than in the performance of his official duties shall be referred to the Court of Cassation, sitting as a full court ...” “The Court of Cassation shall observe the procedure laid down in the Code of Criminal Investigation ...” “Summary offences committed by ministers shall be dealt with by the lower courts under the ordinary procedure.” “The present Law shall come into force on the day following its publication and shall remain in force for one year only ...” 79. In accordance with the provisions of this law the Minister of Defence and the member of the House of Representatives were committed for trial in the Court of Cassation, tried and convicted. The relevant parts of the Court of Cassation's judgment of 12 July 1865 read as follows: “Whereas the indivisibility of the procedure is a necessary consequence of the indivisibility of the offence and requires the whole proceedings to be assigned to the highest-ranking court which has jurisdiction to try one of the defendants; Whereas this public-policy principle, which is universally accepted in case-law, was enshrined in a law promulgated in Belgium, the Law of 24 Messidor Year IV, governing the prosecution of the accomplices of a representative of the people or a member of the Executive Directory indicted by the legislature and committed for trial in the High Court of Justice; whereas it has subsequently been confirmed in new legislation by the way it was applied in Article 501 of the Code of Criminal Investigation; “Whereas, since Lieutenant-General Baron C., the Minister of Defence, must be tried by the Court of Cassation, pursuant to the Law of 19 June 1865, that court is, according to the principle stated above, legally seized of the proceedings brought at the same time against representative D., co-defendant; ... “For these reasons, [the Court] finds both defendants guilty of the offence of fighting a duel without causing injury and the first defendant guilty of the offence of provoking that duel.” 80. On 3 April 1995 the Federal Parliament enacted a second law providing for the temporary and partial implementation of Article 103 of the Constitution. This law concerned only the investigative measures which could be ordered by the House of Representatives and it was provided that it was to remain in force for only nine weeks. In its opinion of 23 March 1995 on the bill which formed the basis for this law, the Legislation Section of the Conseil d'Etat expressed the following views: “The bill as it stands uses these broad powers in a very limited way, but Parliament should use them to define not only the offences which ministers may possibly commit but also the penalties which may be imposed on them or the procedure to be followed for their prosecution, both before and after indictment proper. Such legislation is likely to cause difficulties on account of the uncertainty which it may leave, for example, about how proceedings brought in such conditions would be continued.” 81. On 17 December 1996 Parliament enacted a third law providing for the temporary and partial implementation of Article 103 of the Constitution. This concerned federal ministers. It empowered the House of Representatives to order investigative measures in respect of a minister and laid down the conditions and specified the procedures for carrying out such measures. The Special Law of 28 February 1997 concerned ministers of the community and regional councils. These two laws remained in force until 1 January 1998. 82. Pursuant to Article 26 § 1 of the Special Law of 6 January 1989, the Administrative Jurisdiction and Procedure Court has jurisdiction to give a preliminary ruling, in the form of a judgment, on questions concerning, firstly, contravention by one of the statutes, decrees or rules contemplated by Article 26 bis (134) of the Constitution of the rules laid down by or pursuant to the Constitution to determine the respective powers of the State, the Communities and the Regions; secondly, any conflict between decrees or rules as contemplated by Article 26 bis (134) of the Constitution promulgated by different legislative authorities; and, lastly, contravention by one of the statutes, decrees or rules contemplated by Article 26 bis of the Constitution of Articles 6, 6 bis or 17 of the Constitution. Articles 6 and 6 bis of the Constitution, which became Articles 10 and 11 after the revision of 17 February 1994, enshrine the principles of the equality of all Belgian citizens before the law and enjoyment of recognised civil rights and freedoms without discrimination. 83. Under Article 26 § 2 of the Special Law, a court before which a preliminary question has been raised must in principle seek a ruling on the matter from the Administrative Jurisdiction and Procedure Court. However, this is not mandatory where the action is inadmissible for procedural reasons based on rules which are not themselves the subject of an application for a preliminary ruling. Similarly, a court whose decisions are open to challenge in the form of an ordinary appeal, a petition to reopen proceedings, an appeal on points of law or an application for judicial review in the Conseil d'Etat is also exempted from this obligation either when the Administrative Jurisdiction and Procedure Court has already given a ruling on a question or appeal having the same object or when it considers that the reply to the preliminary question is not essential for it to be able to give judgment, or when it is manifestly apparent that the law, decree or rule contemplated in Article 26 bis (134) does not contravene any rule or Article of the Constitution contemplated in Article 26 § 1. 84. When the Special Law of 6 January 1989 was at the drafting stage, the Minister of Justice justified the obligation to refer a preliminary question by the need to avoid any risk of arbitrary assessment by the courts of the expediency of doing so. 85. Article 21 § 1 of the Law of 17 April 1878 containing the preliminary part of the Code of Criminal Procedure formerly provided: “Prosecution shall be time-barred after ten years in the case of a crime, three years in the case of less serious indictable offences and six months in the case of summary offences, counting from the day when the offence was committed.” 86. Article 25 of the Law of 24 December 1993 amended the above provision, which now reads as follows: “Prosecution shall be time-barred after ten years in the case of a crime, five years in the case of less serious indictable offences and six months in the case of summary offences, counting from the day when the offence was committed.” 87. The papers on the drafting history of the Law of 24 December 1993 include the following observations on Article 25: “The new limitation period applies where the current period has not yet expired, without any retrospective effect. That is also the minister's opinion. ... Third case: an offence is committed before 1 January 1992 and a step retriggering the running of time is taken on 15 December 1993. Given that Article 22 has never been amended, it is a moot point whether prosecution for the offence would become time-barred on 15 December 1996 or on 15 December 1998. ... The rapporteur considers that the three-year period which began on 15 December 1993 would become five years on 1 January 1994. Proceedings would in that case become time-barred on 15 December 1998 instead of 15 December 1996. The new limitation period applies where the current period has not yet expired, without any retrospective effect. That is also the minister's opinion.” (Doc. Parl. Ch., S.O. 1993-94, no. 1211/8, p. 11). 88. Circular no. 2/94 of 10 January 1994 on this point from the Principal Public Prosecutor at the Mons Court of Appeal includes, inter alia, the following instruction: “It follows that, where a step which causes time to begin to run again is taken before prosecution becomes time-barred, the limitation period is extended by five years counting from the last relevant step retriggering the running of time.” 89. Article 22 of the Law of 17 April 1878 containing the preliminary part of the Code of Criminal Procedure, which was not amended by the Law of 24 December 1993, provides: “For the purposes of limitation of prosecution, time shall be caused to run again only by procedural steps in the investigation or prosecution of an offence taken within the time-limit laid down by the previous Article. Such steps shall cause time to begin to run again for a new period of equal length, even for persons who are not directly affected by them.” 90. Article 190 § 2 of the Code of Criminal Investigation makes the following provision as regards the conduct of trials before the Criminal Court: “The public prosecutor, the civil party or his counsel shall present the facts of the case; the reports, if any have been drawn up, shall be read out by the registrar; witnesses for the defence and the prosecution shall give evidence, where appropriate, and any objections heard and determined; any exhibits capable of establishing guilt or innocence shall be shown to the witnesses and the parties; the defendant shall be questioned; the defendant and any persons liable under civil law shall present their defence; the public prosecutor shall sum up and make his final submissions; the defendant and any persons liable for the offence under civil law shall have the right to reply.” 91. The concept of “connection” is defined in Articles 226 and 227 of the Code of Criminal Investigation. Article 226 provides: “[The Court of Appeal] shall rule, in a single judgment, on connected offences in respect of which the documentary evidence has been placed before it at the same time.” Article 227 provides: “Offences are connected either where they have been committed at the same time by more than one person acting together or where they have been committed by different persons, even at different times and in various places, but as the result of a conspiracy between them beforehand, or where the offenders have committed some of the offences in order to obtain the means to commit the others, to facilitate or consummate commission of those other offences or to ensure that they will go unpunished.” | 1 |
dev | 001-22780 | ENG | CYP | ADMISSIBILITY | 2,002 | BAYBORA and OTHERS v. CYPRUS | 4 | Inadmissible | Gaukur Jörundsson | The applicants, Mr Saydam Hüsnü Baybora, Mr Hüsnü Mullaz Fevzi Baybora, Mrs Radiye Baybora, Mr Selçuk Baybora, Mr Gültekin Baybora and Mrs Aydaner Gökçen. They were born in 1940, 1913, 1918, 1944, 1947 and 1950 respectively and live in Ertenköy (Kokkina), Cyprus. They are represented before the Court by Mr Z. Necatigil and Ms S. Karabacak, lawyers practising in Turkey. The facts of the case, as submitted by the applicants, may be summarised as follows. The first applicant was living in Erenköy (Kokkina), Cyprus, when he was abducted on 1 January 1964 by forces under the control and/or the responsibility of the respondent Government. The second and third applicants are the father and the mother of the first applicant. The other applicants are his brothers and sister. The applicants submit that in 1964 their village had run out of food supplies because hostilities between the two communities had prevented any form of safe transportation of food. On 1 January 1964 the first applicant, together with his friend, Lütfi Celul Karabardak, who owned a bus, took this bus and headed towards the Turkish-Cypriot town of Lefke. On the way, whilst passing through the Greek-Cypriot village of Pyrgos, he and his friend were abducted by a group of armed Greek-Cypriots, including a police officer, and taken to an unknown destination. They were never heard of again. The persistent efforts of the relatives to ascertain the fate of the missing persons were in vain. Subsequently, on 4 April 1989, the first applicant’s case was submitted to the appropriate authority on missing persons, the United Nations Committee on Missing Persons in Cyprus (“CMP”) (case number 146). According to the personal diary of a certain Georghiou Luca, a teacher from the Greek-Cypriot village of Mosphileri, which was found in the possession of a Turkish-Cypriot journalist, the missing persons were “executed” summarily in the Greek-Cypriot cemetery of Pyrgos village by armed Greek Cypriots named Mouzouri and Pari “on the instructions of the Headquarters” (the code-name of the then Minister of Interior, Polycarpos Georghadjis). Through the intermediary of the Turkish-Cypriot member of the CMP, the relatives submitted this additional information to the CMP in the hope of finding out what really happened to the missing persons. According to the applicants, a number of requests were made to the CMP to conduct an effective investigation into the fate of the first applicant and his friend. However, there was no response to their requests and no hint of any effective investigation having been undertaken. The third applicant wrote to Amnesty International in London. He stated in his letter that all of their enquiries had so far borne no results and that the Greek-Cypriot Administration had persistently refused to investigate the matter. Amnesty International answered by saying that it appeared that while the CMP may have investigated quite a number of cases submitted to it, it has not been able to bring any of these investigations to a conclusion because the Committee members have been unable to come to an agreement about the Committee’s working methods. The accidental discovery of human remains in 1996 in the Kato Pyrgos region raised a hope for the applicants. However, a scientific report drafted by an American company, following the study of a bone sample, concluded that the individuals whose remains had been found had lived between 1030 and 1240 AD. On 2 March 2001 the Office of the Greek Cypriot Member of the CMP sent to the CMP the following letter: “I am referring to the human remains which were accidentally discovered four years ago in Kato Pyrgos. My letter dated 10.12.1999, as well as your letter dated 14.4.2000 on this issue, are hereby appended for any reference. Further to a conversation you had with Mr Georgiades concerning recent developments on the matter, I wish to inform you that on two separate occasions, members of the team of the Physicians for Human Rights, assisted by our investigating officer and myself, searched the area for additional skeletal remains. All remains were subsequently taken to the laboratory of the Physicians for Human Rights in Cyprus for anthropological analysis, and for decent keeping. Moreover, skeletal samples were sent to a laboratory in U.S. for specialised tests in order to ascertain the period that the remains were buried. The report of the laboratory concerning the remains is appended, as well as a letter by Dr W. Hagkund Director PHR Cyprus Project. We would be most grateful if you could inform accordingly the Office of the Turkish Cypriot Member of the CMP of this development. We strongly suggest that the Turkish Cypriot family, which claimed in the press that the remains might belong to their missing father, should also be informed of the results of the scientific analysis by you too. We are at your entire disposal for any further information ...”. | 0 |
dev | 001-106553 | ENG | TUR | CHAMBER | 2,011 | CASE OF GÜLER AND ÖNGEL v. TURKEY | 4 | Violation of Art. 3 (substantive aspect) | András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi | 4. The applicants were born in 1977 and 1979 respectively. 5. On 29 June 2004 a large group of demonstrators, including the applicants, gathered in Istiklal Street in front of the Galatasaray High School in Istanbul to attend the reading out of a statement to the press in protest against the NATO summit which was being held in Istanbul on 28-29 June 2004. The demonstration was organised by KESK (Kamu Emekçileri Sendikaları Konfederasyonu – The Confederation of Public Employees’ Trade Unions). A large group of police officers, all wearing helmets and gas masks and equipped with the necessary material, was also deployed to the area. Nearly 500 demonstrators took part in the demonstration and slogans were chanted against NATO. After the statement was read out by the representative of KESK, the demonstrators started to disperse. A small group of demonstrators, carrying the flags of their non-governmental organisation Halkevleri Derneği (Peoples’ Houses), walked towards the police officers who had blocked Istiklal Street to prevent the group from approaching Taksim Square. The demonstrators attacked the police officers with sticks and stones and the police officers used tear gas and truncheons to disperse the group. Some of the nearby shops and vehicles were damaged during the incident. According to the incident report, six police officers were wounded during the incident. 6. The applicants, who had listened to the press statement, were arrested during this incident. According to the applicants, they were beaten and insulted during and after their arrest. The same day, they were taken to the Bayrampaşa Health Clinic for a medical examination. According to the applicants, the doctor examined them in the presence of the police officers. A copy of the medical report is not included in the case file. 7. On 30 June 2004 the applicants were taken to the Beyoğlu Forensic Medicine Institute for a further medical examination. The doctor who examined the applicants concluded that both of them were unfit to work for seven days. The following findings were noted in the medical report: – Serdar Güler: Large bruises on the back of the upper left arm, bruises on the back, bruises on the shoulders and on the waist, bruises on the right shoulder, bruises on the left gluteal region, tenderness of the left leg. – Savaş Kurtuluş Öngel: Several bruises on the back of the left shoulder, bruise on the upper side of the right shoulder blade, bruises on the left and right sides of the back, a bleeding wound on the left elbow, a bruise on the right knee, bruises on the left knee. The doctor also noted that the applicant had a nose bleed. 8. The same day, the applicants were released upon the order of the Beyoğlu Public Prosecutor. 9. On 18 July 2004 the applicants filed a petition with the Beyoğlu public prosecutor against the police officers who had carried out their arrest. In their petition, the applicants complained, inter alia, that their arrest had been unlawful and that the police officers had used excessive force during and after the arrest. 10. On 2 November 2004 the Beyoğlu public prosecutor issued a decision of non-prosecution in respect of the police officers who had been on duty at the relevant time. In his decision, the public prosecutor considered that the force used by the security forces had been in line with Article 16 of Law no. 2559 on the Duties and Powers of the Police and had not been excessive. In the public prosecutor’s opinion, the injuries sustained by the applicants had been caused by a use of force which was proportionate. In delivering this decision, the public prosecutor had regard to the fact that after the press statement had been read out, a group of seventy people had not dispersed and had attacked the police officers with sticks and stones, also causing damage to nearby shops and vehicles. In the public prosecutor’s opinion, the force used by the police had therefore been proportionate. 11. On 29 December 2004 the applicants filed an objection against the public prosecutor’s decision. 12. On 13 December 2005 the Istanbul Assize Court dismissed the applicants’ objection. 13. In the meantime, on 30 June 2004, the Beyoğlu public prosecutor filed a bill of indictment against eighteen accused, including the applicants, with the Beyoğlu Criminal Court and accused them under Article 32 of Law no. 2911 of taking part in an illegal demonstration without prior authorisation and of not dispersing despite the police officers’ warning. Five police officers, who had been wounded during the incident, joined the proceedings as intervening parties. 14. On 7 March 2006 the Beyoğlu Criminal Court acquitted the applicants of the charges against them. In delivering its decision, the Criminal Court had regard to a video recording of the incident, to witness statements and to the submissions of the intervening parties. The court found it established that the applicants were not amongst the demonstrators who had been carrying “Halkevleri” flags and had attacked the police officers. The court accordingly stated that there was no evidence in the file to support a finding that the applicants had violated Law no. 2911 or resisted the police officers as alleged. 15. Article 16 of Law no. 2559 on the Duties and Powers of the Police provides: “The police may use firearms: (a) In self defence, ...; (h) if a person or a group resists the police and prevents them from carrying out their duties or if there is an attack against the police.” “In cases of resistance by persons whose arrest is necessary or by groups whose dispersal is necessary, threat of attack or an attack, the police may use force to subdue these actions. Use of force refers to the use of bodily force, physical force and all types of weapons specified in the law and may gradually increase according to the nature and level of resistance or attack with a view to restoring calm. In cases of intervention by group forces, the extent of the use of force and the equipment and instruments to be used shall be determined by the commander of the intervening force.” | 1 |
dev | 001-90276 | ENG | TUR | CHAMBER | 2,008 | CASE OF TERZIOGLU AND OTHERS v. TURKEY | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property | Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky | 4. The applicants were born in 1924, 1932, 1940, 1949, 1946, 1944, 1937 and 1934 respectively and live in different cities in Turkey. 5. On various dates, the applicants inherited or bought plots of land and properties near the coasts in different parts of Turkey, namely in Çanakkale, Şarköy, Izmir, Mudanya and Seferihisar. Some of the applicants constructed houses or operated commercial entities on their land. 6. On different dates, the Treasury requested from the competent courts of first instance to determine whether the applicants’ properties were located within the coastal strip. A group of experts appointed by the courts inspected the plots of land and any existing buildings on them and concluded that they were located within the coastline area. 7. Following the conclusion of the expert reports, the Treasury brought actions before the relevant courts, requesting the annulment of the applicants’ title deeds to the land and the properties, on the ground that they were located within the coastal area. 8. On various dates, the courts of first instance upheld the request of the Treasury and annulled in full the applicants’ title deeds in application nos. 23953/05, 37166/05, 19638/06 and 17654/07, whereas the title deeds in the remaining two applications were partially annulled. In their decisions, the courts held that, pursuant to domestic law (the Coastal Law of 1990), the coasts could not be subject to private ownership and that, therefore, the applicants could not rely on the argument that they had acted bona fides or on the fact that they had constructed buildings on the plots of land. 9. Appeals by the applicants against these judgments were dismissed by the Court of Cassation. Some of the applicants’ requests for rectification of the judgments were also rejected by that court. 10. In application no. 23953/05 the applicant brought an action for damages in the Şarköy Civil Court of First Instance on account of his loss of ownership and the demolition of four shops located on the land. On 28 October 2003 the Şarköy Civil Court of First Instance dismissed the applicant’s action on the ground that, inter alia, the State was not liable for the damage resulting from the cancellation of the registration of the property in issue. The applicant appealed. In a judgment of 24 September 2004 the Court of Cassation upheld the judgment. A rectification request by the applicant was further dismissed by the Court of Cassation on 17 March 2005. The details concerning the six applications are indicated in the table below: 11. The relevant domestic law and practice in force at the material time are outlined in the Doğrusöz and Aslan v. Turkey judgment (no. 1262/02, § 16, 30 May 2006). | 1 |
dev | 001-98559 | ENG | TUR | CHAMBER | 2,010 | CASE OF SAYGILI AND BİLGİÇ v. TURKEY | 3 | Violation of Art. 10;Non-pecuniary damage - award;Pecuniary damage - claim dismissed | András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria | 5. The applicants were born in 1966 and 1972 respectively and live in Istanbul. Mr Saygılı (“the first applicant”) is the owner of a daily newspaper, Günlük Evrensel, and Mr Bilgiç (“the second applicant”) is its editor-in-chief. Until 22 July 2001 the first applicant owned another daily newspaper named Yeni Evrensel. 6. On 23 November 2000 the First Chamber of the Istanbul State Security Court convicted Mr Bülent Falakaoğlu, the editor-in-chief of Yeni Evrensel, of the offence defined in Article 312 § 2 of the Penal Code for certain articles published therein. The conviction entailed certain measures being taken against Yeni Evrensel. Pursuant to Additional Article 2 § 1 of the Press Act (law no. 5680) then in force, the court ordered the newspaper to cease publication for a period of one month. 7. On 18 June 2001, while the closure order was yet to be executed, the applicants notified the office of the Istanbul Governor of their intention to publish a new newspaper, named Günlük Evrensel. 8. On 22 July 2001 Mr Saygılı ceased Yeni Evrensel's publication. The following day he launched Günlük Evrensel with a new editor-in-chief, Mr Bilgiç, and a new team of columnists. 9. On 8 September 2001 a number of police officers came to the applicants' printing headquarters to execute the closure order. They found that the applicants had discontinued Yeni Evrensel and started to publish Günlük Evrensel. The officers informed the public prosecutor in Zeytinburnu who, in return, concluded that Günlük Evrensel was Yeni Evrensel's successor. 10. On 13 September 2001 the public prosecutor applied to the Zeytinburnu Magistrates' Court (Sulh Ceza Mahkemesi) for a seizure warrant. The court issued the warrant authorising the seizure of Günlük Evrensel's two recent issues. 11. The same day the applicants filed an objection with the higher criminal court, the Zeytinburnu Criminal Court of First Instance (Asliye Ceza Mahkemesi), asserting that Günlük Evrensel was not Yeni Evrensel's successor. Unconvinced by the applicants' assertions, the court rejected the application without giving any reasons, other than stating that “it was established that Günlük Evrensel was Yeni Evrensel's successor”. 12. For the following 29 days the same sequence of events took place; the prosecutor requested a seizure warrant for the latest issue, the Magistrates' Court granted it and the applicants unsuccessfully lodged a number of objections against those decisions with the Zeytinburnu Court, which repeated its above conclusion in each of its decisions. In their objections the applicants drew the Zeytinburnu Court's attention to the fact that as Günlük Evrensel had first been published on 23 July 2001 and Yeni Evrensel was not officially closed down until 8 September 2001, it could not possibly be Yeni Evrensel's successor. Moreover, Günlük Evrensel had a different editorial team than that of Yeni Evrensel. The applicants also argued that the seizure of Günlük Evrensel was in breach of Articles 6 and 10 of the Convention because, inter alia, the seizure decisions were not adequately reasoned. 13. On 25 September 2001 the applicants wrote to the Ministry of Justice and requested that a written order be issued against the seizure orders. They repeated their arguments under Articles 6 and 10 of the Convention. 14. Meanwhile, the Zeytinburnu prosecutor filed a number of criminal charges against the applicants on the ground that they had breached the shutdown order by issuing a successor newspaper. The charges were joined and examined by the Zeytinburnu Criminal Court of First Instance. On 26 December 2001 the court acquitted the applicants as it found that the two newspapers in question were unrelated. The court also revoked the seizure warrants, which had already been executed by then. 15. Additional Article 2 of the Press Act: “Where offences [prescribed in Article 312 § 2 of the Penal Code] ... and those threatening national security and general morals are committed via the press, the relevant publication may be ordered to be shut down by the competent court for a period of three days to one month. Any publication which manifestly succeeds a previous publication that was so ordered ... shall be seized by a warrant to be issued by a magistrates' court.” | 1 |
dev | 001-59450 | ENG | GBR | CHAMBER | 2,001 | CASE OF HUGH JORDAN v. THE UNITED KINGDOM | 3 | Violation of Art. 2;No violation of Art. 6;No violation of Art. 14;No violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Nicolas Bratza;Simon Brown | 11. The facts of the case, in particular concerning what happened when Pearse Jordan was shot on 25 November 1992, are in dispute between the parties. 12. On 25 November 1992, the applicant’s son, Pearse Jordan, aged 22, was shot and killed in Belfast by an officer of the Royal Ulster Constabulary (the RUC), later identified as Sergeant A. 13. The official statement issued by the RUC to the media indicated that an RUC unit had pursued a car on the Falls Road and brought it to a halt. On stopping the car, the officers had fired several shots at the driver, fatally wounding him a short distance from where his car had been abandoned. No guns, ammunition, explosives, masks or gloves had been found in the car and the driver, Pearse Jordan, had been unarmed. 14. The post mortem report found two entry wounds in Pearse Jordan’s back and one in the back of the left arm, and noted a bruise on the face and shin. It concluded that he had been struck by three bullets which had come from behind and to the left. There was nothing to indicate the range. 15. The shooting was witnessed by four civilians, who on 26 November 1992 made statements to the Committee for the Administration of Justice (CAJ), an independent non-governmental human rights organisation based in Belfast. The four witnesses gave the following account of the shooting, which is not accepted by the Government. 16. The four civilians were walking together along the Falls Road and passed Andersontown RUC station at 5 p.m. approximately. They noticed two unmarked police cars parked with their headlights dimmed, each containing three RUC officers: one car was red and the second dark blue/green. As they proceeded along the road, they heard a crash behind them and turned to see on the opposite side of the road the red police car pulling alongside a car (Pearse Jordan’s) and ramming it up onto the footpath. The red police car came to a halt in front of the car while the dark blue/green police car pulled up behind hitting it in the rear. The four civilians stopped and had an unobstructed view across the road. Pearse Jordan emerged from the immobilised car, and appeared shaken. He staggered across the road towards the four men followed by four police officers. As Pearse Jordan reached the white line in the centre of the road, an officer about 12 feet away fired a number of shots. The civilians heard no warning shout or challenge given by any of the officers and saw nothing in Pearse Jordan’s hands or anything threatening in his actions. Some of the shots struck Pearse Jordan. He staggered a little further then turned to face the police who, when they caught up with him, verbally abused him and pushed his face into the ground where he was kicked and searched. The police carried out a search of the car. The four witnesses followed the ambulance which took Pearse Jordan to hospital where they stated that they were subjected to hostile and threatening remarks by members of the security forces. 17. According to the applicant, prior to the release of the official RUC statement (see paragraph 13 above), there were a number of unofficial reports widely circulated in the media to the effect that gloves, masks, guns and bombs had been found in the car, and one report to the effect that Pearse Jordan was a former Republican prisoner who had been charged in 1991 with possession of explosives. This information was not correct. Pearse Jordan did however receive an IRA funeral and, in the Republican News, he was described as a Volunteer of the Belfast Brigade of the IRA and it was said that he had died on active service. 18. An official RUC statement stated that a deputy superintendent of the RUC from outside Belfast would investigate the shooting. In a later statement, it was announced that the Independent Commission for Police Complaints (the ICPC) would supervise the RUC investigation. 19. On 26 November 1992, at 10.55 p.m., a detective chief inspector of the RUC criminal investigation department interviewed Sergeant A, in the presence of his solicitor and a representative of the ICPC. Sergeant A, member of an HMSU unit, stated as follows. He had been at a briefing at 11 a.m. the day before concerning reports of a planned distribution of kit and munitions, including weapons, explosives and mortars, by the Provisional IRA in West Belfast. A surveillance operation was to be mounted and he was in charge of the teams on the ground which were going to intervene if possible to intercept the munitions. He was carrying a Smith and Wesson 59 pistol and a MP5 Heckler & Koch. At about 3.20-3.30 p.m., following reports of a car acting suspiciously at White Rock leisure centre, he and his teams left Woodbourne police station to wait at Andersontown police station. They heard reports there of a build up of activity at the back of two houses in Arizona street, which were under surveillance. The red car from the leisure centre arrived in Arizona street. Sergeant A thought that this was possibly the re-supply of terrorist equipment taking place. He was told by radio to gather his people together – car crews with call signs 8, 9, 3 and 12. When the red Orion left Arizona street, he and his crews left the police station but were called back almost immediately to allow the red Orion to make its run. A red Cavalier left Arizona street and they were told to allow that to run. News arrived that the red Orion had come back to Arizona street. Sergeant A was told on the radio that the next time the red Orion came out they were to intercept it. He split his crews in two, his own team (call signs 8 and 12) to approach from the city side and the crews with call signs 3 and 9 to approach from the country side. When the red Orion came past the two police cars, Sergeant A saw that there was one driver. They pulled out behind it. His driver flashed his lights at it. They switched on their police klaxon but had no blue flashing light on the car and none of them were wearing their police caps. Sergeant A’s car drew level with the Orion and he signalled for it to pull over. The Orion slowed falling behind and then shot past on the passenger side, accelerating down the Falls Road in the direction of the city. Sergeant A told his driver to pursue him and force him off the road. The car possibly reached the speed of 60, maybe 70 miles per hour at the fastest. They were in a built up area, in traffic so it was difficult to judge. Their klaxon was going throughout. They drew parallel with the red Orion and nudged it once. The impact was hard enough to force the Orion partly up on the pavement and stop it. Sergeant A’s own car stopped partly on the pavement in front of the Orion. The lock of his door had broken on the impact. He burst out of the door onto the pavement moving towards the Orion. He saw the driver running across the road from left to right at an angle away from him. He was looking over his right shoulder in Sergeant A’s direction as he ran. Sergeant A said that he called out “Police. Halt.” or “Halt. Police.” The driver of the Orion turned around towards him. He could not see the man’s hands which were below his waist. His vision was either obscured by the roof of the police car in front of him or the arrival of the other black car (crew 12) on the scene. As he could not see the man’s hands, he thought that his own life or the life of his own driver might be at risk. He feared the man was armed as he had spun round so quickly. He fired a short burst from his MP5 at the trunk of the man. When he made the split second decision to fire, the man was facing him but he could not say whether he had turned or moved in some other way. He was aware of other police officers shouting. He ran towards the driver who ran towards the footpath on the far side of the road. Constable F was shouting at him to get down on his knees. The driver fell flat, toppling over. It was realised at that stage that he was seriously injured. Sergeant A quickly searched the car, while other security force personnel administered first aid to the driver. Either base, or he himself, suggested that the police officers move to Arizona street. The military took over the first aid. He had directed most of the police officers to leave the scene as soon as they had arrived, including crew 12 in their car. He did not know that car 12 had come into contact with the Orion or the deceased. He arrived back at the station at about 5.30 to 6.00 p.m. There was a 20-30 minute debriefing in which he participated. He also discussed the matter casually with the others who were there. He was instructed to hand in his weapon at about that time. 20. On 30 March 1993, a detective inspector carried out a second interview of Sergeant A, in the presence of his solicitor. Further questions were put about his position and actions at the time of the shooting. He recalled that he had had a clear view of the deceased from the waist up. When the deceased turned to face him, he did not make any movements towards him. His arms remained down though. When asked to explain precisely why he had considered that his life was in danger, given that he could not confirm that the deceased was armed, Sergeant A replied that it had been a prolonged operation lasting several hours involving serious terrorist activity. The red Orion had reacted in a very aggressive manner in driving at excessive speed on a busy road. When the Orion was stopped, the driver ran away and when he was ordered to stop, he turned towards the Sergeant in what the Sergeant interpreted as an aggressive manner. His arms were down and his hands out of sight. In that short space of time, he formed the opinion that the deceased was a threat to his life. The man’s actions had not been of someone about to surrender. He was certain that there were no viable alternatives to discharging his own weapon. 21. Forensic examinations of the cars involved in the incident were carried out. Interviews were conducted with the other police officers and army personnel involved in the incident. According to the statements of police officers D, E and F in the car call sign 12, they had been pursuing the red Orion car close behind the red police Sierra in which Sergeant A was driving. When the Orion stopped, their car pulled up behind. As they were stopping, the driver was running from the car and either he ran into them or their car struck him, clipping him on the right thigh. The driver span round towards call sign 8. At that point, there was a short burst of gunfire. Their car had also at some point made contact with the red Orion in the rear. Only officer D heard shouting coming from the call sign 8 direction before the shooting. Shortly after moving their car to facilitate the flow of traffic, they had been directed to Arizona street. In his statement of 6 December 1992, Sergeant H, from the car call sign 11, stated that on arrival at the scene he had instructed car 12 to be moved to facilitate the movement of a bus which had stopped very close to the injured man. He was not aware that car 12 might have struck the red Orion car or the deceased. The car was only moved back slightly and he was not involved in directing its complete removal from the scene. Inspector M gave a statement on 7 December 1992 that, on being satisfied that the injured man was receiving first aid and that the red Orion had been secured, he gave directions for all the HMSU police teams to go to Arizona street for searches. Some sort of device has been located there. 22. During the investigation, appeals were made by the police in newspapers and broadcast media for potential eyewitnesses to come forward. A number of civilians made statements to the police and subsequently gave evidence at the inquest. In May 1993, the RUC concluded its inquiry. Its report on the investigation was submitted to the Director of Public Prosecutions (the DPP) on 25 May 1993. 23. On 3 June 1993, the ICPC wrote to the applicant’s family expressing the view that the RUC report of 25 May 1993 concerning the criminal investigation into the shooting was satisfactory. On 15 June 1993, the RUC wrote to the applicant advising him that the papers had been sent to the DPP. The applicant and his family were not however provided with any indication as to the nature of the RUC’s findings. 24. On 16 November 1993, the DPP’s department issued to the Chief Constable of the RUC a direction of “no prosecution” in respect of the fatal shooting of Pearse Jordan. It had been concluded that the evidence was insufficient to warrant the prosecution of any person. 25. On 22 November 1993, having considered a submission by the CAJ, the DPP notified the CAJ that the direction of “no prosecution” should stand. 26. On 11 February 1994, the RUC Complaints and Discipline Department wrote to the applicant to inform him that the report on the shooting had been sent to the ICPC. 27. On 31 August 1994, the ICPC wrote to the applicant to inform him that after careful scrutiny of all the details it was of the opinion that the evidence was insufficient to warrant the preferment of disciplinary charges against the police officers concerned. 28. On 29 November 1993, the RUC notified the Coroner that the DPP had directed “no prosecution”. Following that decision, the Coroner decided to hold an inquest. 29. On 4 November 1994, the Coroner received the case papers from the RUC. 30. On or about 13 November 1994, the Coroner wrote to interested parties informing them that the inquest would begin on 4 January 1995. 31. Prior to the commencement of the inquest, the Secretary of State for Defence issued a certificate in which he identified information whose disclosure at the inquest he believed would be contrary to the public interest on grounds of national security, and made an application that the identities of certain military witnesses be withheld and that they should give their evidence from behind a screen. 32. On 20 December 1994, the Coroner held a preliminary hearing at which he decided to: (a) protect certain categories of information from disclosure on the grounds of national security; (b) protect the identity of three military witnesses, Soldiers V, W and X by withholding their names and screening them from all except the Coroner, the jury and the legal representatives of the interested parties; and (c) protect the identity of certain RUC officers, including Sergeant A (the officer who fired the shots which killed Pearse Jordan) by withholding their names. 33. On 2 January 1995, the Secretary of State for Northern Ireland issued a certificate in which he identified information whose disclosure at the inquest he believed would be contrary to the public interest as compromising the integrity of RUC intelligence operations. 34. On 4 January 1995, the Coroner’s inquest commenced. The applicant and his family were represented by a solicitor and counsel. The RUC were represented. The Coroner sat for three and a half days, hearing evidence from 19 witnesses, including the applicant, 8 civilians, Soldiers V, W and X, 7 police officers and a pathologist. These witnesses were subject to cross-examination. Sergeant A had informed the Coroner that he would not appear. 35. On or about 8 January 1995, the CAJ provided the Coroner with a statement which they had received from another civilian witness, a driver of a black taxi who had been at the scene. 36. On 10 January 1995, the Coroner rejected the request by the applicant’s counsel to withdraw the protection of the identities of the RUC witnesses. 37. The proceedings were adjourned on 16 January 1995, at the request of Pearse Jordan’s family, to enable the DPP, in the light of new evidence from the taxi driver, to reconsider the decision whether or not to bring a prosecution. The Coroner wrote to the DPP informing him that new evidence had come to light which should be considered. 38. On 10 February 1995, the DPP decided that the evidence remained insufficient to warrant the prosecution of any person in relation to Pearse Jordan’s death. He requested that any further evidence adduced at the inquest relevant to his functions be reported to him. 39. On 14 February 1995, the applicant’s legal representatives were informed by the DPP that his decision not to bring a prosecution still stood. 40. On 10 March 1995, the applicant’s legal representatives made an application for the Coroner to discharge himself from the Inquest on the grounds that he was not conducting the inquest fairly. The Coroner refused the application. 41. On 11 April 1995, the Coroner wrote to the interested parties informing them that the inquest would resume on 12 June 1995. 42. On 26 May 1995, the applicant’s legal representatives commenced judicial review proceedings seeking declarations that certain rulings given by the Coroner in the course of the inquest were wrong in law. Leave was granted on 2 June 1995. The applicant sought orders of certiorari to quash inter alia (a) the Coroner’s refusal to give the next of kin access to the statements of the witnesses before they gave evidence at the inquest and (b) the decision of the Coroner to grant anonymity to RUC witnesses. Legal aid was granted to the applicant for this purpose. The Coroner adjourned the inquest pending these proceedings. 43. Leave was granted to bring judicial review proceedings against the Coroner on 2 June 1995. 44. The judicial review application was heard on 9 and 10 November 1995. By judgment of 11 December 1995, Lord Justice Carswell refused the applicant’s claims. In doing so he had regard to the inquisitorial nature of inquest proceedings. He referred to the remarks of Griffiths J in Ex parte Peach: “A coroner’s inquest is an inquisitorial procedure with a very limited objective indeed. The objective is set out in rule 26 of the Coroners Rules 1953. It is limited to ascertaining the following matters: who the deceased was; how, when and where the deceased came by his death. There is a further specific limitation provided by the Coroners (Amendment) Rules 1977. These provide by rule 7 that no verdict shall be framed in such a way as to appear to determine any question of criminal liability on the part of a named person or of civil liability. It is quite true that the coroner may allow interested parties to examine a witness called by the coroner. But that must be for the purpose of assisting in establishing the matters which the inquest is directed to determine. It is not intended by rule 16 to widen the coroner’s inquest into adversarial fields of conflict.” 45. Lord Justice Carswell also referred to the statutory background governing the procedure at inquest: Section 31(1) of the Coroners Act (Northern Ireland) 1959 providing that the jury shall give their verdict in the form prescribed by rules, “setting forth, so far as such particulars have been proved to them, who the deceased person was and how, when and where he came to his death.” and Rule 16 of the Coroners (Practice and Procedure) Rules 1963 providing: “neither the coroner nor the jury shall express any opinion on questions of criminal or civil liability ...” 46. On 8 January 1996, the applicant appealed against the decision of Lord Justice Carswell. The appeal was dismissed by the Court of Appeal of Northern Ireland on 28 June 1996. The applicant’s application for leave to appeal to the House of Lords was refused on 4 October 1996. The House of Lords also refused leave on 20 March 1997. 47. The inquest was due to recommence on 1 December 1997. However, it was adjourned on 19 November 1997 by the Coroner, after consultation with the parties, pending the outcome of a judicial review application in the High Court concerning the availability of legal aid for legal representation for the family of the deceased at inquests. 48. On 16 March 1999, final judgment was given in the case of Sharon Lavery v. the Secretary of State and the Legal Aid Department, in which a challenge concerning the unavailability of legal aid for inquests was dismissed. 49. On 1 July 1999, the Coroner informed the interested parties that he intended to resume the inquest on 1 November 1999. 50. On 13 October 1999, the Coroner adjourned the inquest pending the applicant’s application for the disclosure of documents by the Chief Constable of the RUC in the wake of the Home Office Circular issued on 28 April 1999 on deaths in police custody which recommended, inter alia, that material supplied by the police to the Coroner should be made available to the families of deceased persons (see paragraphs 73 and 74 below). 51. On 2 February 2000, the applicant was informed that the Chief Constable would provide copies of the statements of the witnesses who were to appear at the inquest and copies of any statements which the Coroner proposed to read out. 52. On 3 March 2000, the applicant was granted leave to bring judicial review proceedings against the Chief Constable, challenging his decision not to provide further documents to the applicant. 53. When the inquest resumed, the Coroner proposed to call, in addition to the witnesses who gave evidence in January 1995, 12 police officers and Soldier Y involved in the anti-terrorist operation in which Pearse Jordan died, forensic experts and three police officers involved in the RUC investigation into the shooting. 54. On a date unspecified between 4 April and 2 October 2000, the applicant was provided with the witness statements of persons whom the Coroner has decided should be called to give evidence at the inquest. 55. The applicant was granted legal aid to pursue a civil action for compensation in the High Court. On 7 December 1992, the applicant instituted civil proceedings, alleging death by wrongful act. 56. On 5 October 1995, the applicant served a statement of claim in the civil proceedings. On 24 October 1995 the Ministry of Defence served their defence, together with a request for further and better particulars of the statement of claim. The applicant did not reply to this request until a date unspecified subsequent to 27 August 1998. 57. On 8 October 1999, the Crown Solicitor wrote to the applicant seeking consent to a remittal of the civil action to trial. 58. The applicant stated that the case is currently at the discovery stage but that this cannot be concluded until the inquest is terminated. 59. Section 3 of the Criminal Law Act (Northern Ireland) 1967 provides inter alia: “1. A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting the arrest or assisting in the lawful arrest of offenders or suspected offenders or persons unlawfully at large.” Self-defence or the defence of others is contained within the concept of the prevention of crime (see e.g. Smith and Hogan on Criminal Law). 60. The conduct of inquests in Northern Ireland is governed by the Coroners Act (Northern Ireland) 1959 and the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963. These provide the framework for a procedure within which deaths by violence or in suspicious circumstances are notified to the Coroner, who then has the power to hold an inquest, with or without a jury, for the purpose of ascertaining, with the assistance as appropriate of the evidence of witnesses and reports, inter alia, of post mortem and forensic examinations, who the deceased was and how, when and where he died. 61. Pursuant to the Coroners Act, every medical practitioner, registrar of deaths or funeral undertaker who has reason to believe a person died directly or indirectly by violence is under an obligation to inform the Coroner (section 7). Every medical practitioner who performs a post mortem examination has to notify the Coroner of the result in writing (section 29). Whenever a dead body is found, or an unexplained death or death in suspicious circumstances occurs, the police of that district are required to give notice to the Coroner (section 8). 62. Rules 12 and 13 of the Coroners Rules give power to the Coroner to adjourn an inquest where a person may be or has been charged with murder or other specified criminal offences in relation to the deceased. 63. Where the Coroner decides to hold an inquest with a jury, persons are called from the Jury List, compiled by random computer selection from the electoral register for the district on the same basis as in criminal trials. 64. The matters in issue at an inquest are governed by Rules 15 and 16 of the Coroners Rules: “15. The proceedings and evidence at an inquest shall be directed solely to ascertaining the following matters, namely: - (a) who the deceased was; (b) how, when and where the deceased came by his death; (c) the particulars for the time being required by the Births and Deaths Registration (Northern Ireland) Order 1976 to be registered concerning his death. 16. Neither the coroner nor the jury shall express any opinion on questions of criminal or civil liability or on any matters other than those referred to in the last foregoing Rule.” 65. The forms of verdict used in Northern Ireland accord with this recommendation, recording the name and other particulars of the deceased, a statement of the cause of death (e.g. bullet wounds) and findings as to when and where the deceased met his death. In England and Wales, the form of verdict appended to the English Coroners Rules contains a section marked “conclusions of the jury/coroner as to the death” in which conclusions such as “lawfully killed” or “killed unlawfully” are inserted. These findings involve expressing an opinion on criminal liability in that they involve a finding as to whether the death resulted from a criminal act, but no finding is made that any identified person was criminally liable. The jury in England and Wales may also append recommendations to their verdict. 66. However, in Northern Ireland, the Coroner is under a duty (section 6(2) of the Prosecution of Offences Order (Northern Ireland) 1972) to furnish a written report to the DPP where the circumstances of any death appear to disclose that a criminal offence may have been committed. 67. Until recently, legal aid was not available for inquests as they did not involve the determination of civil liabilities or criminal charges. Legislation which would have provided for legal aid at the hearing of inquests (the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981, Schedule 1 paragraph 5) has not been brought into force. However, on 25 July 2000, the Lord Chancellor announced the establishment of an Extra-Statutory Ex Gratia Scheme to make public funding available for representation for proceedings before Coroners in exceptional inquests in Northern Ireland. In March 2001, he published for consultation the criteria to be used in deciding whether applications for representation at inquests should receive public funding. This included inter alia consideration of financial eligibility, whether an effective investigation by the State was needed and whether the inquest was the only way to conduct it, whether the applicant required representation to be able to participate effectively in the inquest and whether the applicant had a sufficiently close relationship to the deceased. 68. The Coroner enjoys the power to summon witnesses who he thinks it necessary to attend the inquest (section 17 of the Coroners Act) and he may allow any interested person to examine a witness (Rule 7). In both England and Wales and Northern Ireland, a witness is entitled to rely on the privilege against self-incrimination. In Northern Ireland, this privilege is reinforced by Rule 9(2) which provides that a person suspected of causing the death may not be compelled to give evidence at the inquest. 69. In relation to both documentary evidence and the oral evidence of witnesses, inquests, like criminal trials, are subject to the law of public interest immunity, which recognises and gives effect to the public interest, such as national security, in the non-disclosure of certain information or certain documents or classes of document. A claim of public interest immunity must be supported by a certificate. 70. Rules 15 and 16 (see above) follow from the recommendation of the Brodrick Committee on Death Certification and Coroners: “... the function of an inquest should be simply to seek out and record as many of the facts concerning the death as the public interest requires, without deducing from those facts any determination of blame... In many cases, perhaps the majority, the facts themselves will demonstrate quite clearly whether anyone bears any responsibility for the death; there is a difference between a form of proceeding which affords to others the opportunity to judge an issue and one which appears to judge the issue itself.” 71. Domestic courts have made, inter alia, the following comments: “... It is noteworthy that the task is not to ascertain how the deceased died, which might raise general and far-reaching issues, but ‘how...the deceased came by his death’, a far more limited question directed to the means by which the deceased came by his death. ... [previous judgments] make it clear that when the Brodrick Committee stated that one of the purposes of an inquest is ‘To allay rumours or suspicions’ this purpose should be confined to allaying rumours and suspicions of how the deceased came by his death and not to allaying rumours or suspicions about the broad circumstances in which the deceased came by his death.” (Sir Thomas Bingham, MR, Court of Appeal, R. v the Coroner for North Humberside and Scunthorpe ex parte Roy Jamieson, April 1994, unreported) “The cases establish that although the word ‘how’ is to be widely interpreted, it means ‘by what means’ rather than in what broad circumstances ... In short, the inquiry must focus on matters directly causative of death and must, indeed, be confined to those matters alone ...” (Simon Brown LJ, Court of Appeal, R. v. Coroner for Western District of East Sussex, ex parte Homberg and others, (1994) 158 JP 357) “... it should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish the facts. It is an inquisitorial process, a process of investigation quite unlike a trial... It is well recognised that a purpose of an inquest is that rumour may be allayed. But that does not mean it is the duty of the Coroner to investigate at an inquest every rumour or allegation that may be brought to his attention. It is ... his duty to discharge his statutory role - the scope of his enquiry must not be allowed to drift into the uncharted seas of rumour and allegation. He will proceed safely and properly if he investigates the facts which it appears are relevant to the statutory issues before him.” (Lord Lane, Court of Appeal, R v. South London Coroner ex parte Thompson (1982) 126 SJ 625) 72. There was no requirement prior to 1999 for the families at inquests to receive copies of the written statements or documents submitted to the Coroner during the inquest. Coroners generally adopted the practice of disclosing the statements or documents during the inquest proceedings, as the relevant witness came forward to give evidence. 73. Following the recommendation of the Stephen Lawrence Inquiry, Home Office Circular No. 20/99 (concerning deaths in custody or deaths resulting from the actions of a police officer in purported execution of his duty) advised Chief Constables of police forces in England and Wales to make arrangements in such cases for the pre-inquest disclosure of documentary evidence to interested parties. This was to “help provide reassurance to the family of the deceased and other interested persons that a full and open police investigation has been conducted, and that they and their legal representatives will not be disadvantaged at the inquest”. Such disclosure was recommended to take place 28 days before the inquest. 74. Paragraph 7 of the Circular stated: “The courts have established that statements taken by the police and other documentary material produced by the police during the investigation of a death in police custody are the property of the force commissioning the investigation. The Coroner has no power to order the pre-inquest disclosure of such material... Disclosure will therefore be on a voluntary basis.” Paragraph 9 listed some kinds of material which require particular consideration before being disclosed, for example: – where disclosure of documents might have a prejudicial effect on possible subsequent proceedings (criminal, civil or disciplinary); – where the material concerns sensitive or personal information about the deceased or unsubstantiated allegations which might cause distress to the family; and – personal information about third parties not material to the inquest. Paragraph 11 envisaged that there would be non-disclosure of the investigating officer’s report although it might be possible to disclose it in those cases which the Chief Constable considered appropriate. 75. The police complaints procedure was governed at the relevant time by the Police (Northern Ireland) Order 1987 (the 1987 Order). This replaced the Police Complaints Board, which had been set up in 1977, by the Independent Commission for Police Complaints (the ICPC). The ICPC has been replaced from 1 October 2000 with the Police Ombudsman for Northern Ireland appointed under the Police (Northern Ireland) Act 1998. 76. The ICPC was an independent body, consisting of a chairman, two deputy chairmen and at least four other members. Where a complaint against the police was being investigated by a police officer or where the Chief Constable or Secretary of State considered that a criminal offence might have been committed by a police officer, the case was referred to the ICPC. 77. The ICPC was required under Article 9(1)(a) of the 1987 Order to supervise the investigation of any complaint alleging that the conduct of a RUC officer had resulted in death or serious injury. Its approval was required of the appointment of the police officer to conduct the investigation and it could require the investigating officer to be replaced (Article 9(5)(b)). A report by the investigating officer was submitted to the ICPC concerning supervised investigations at the same time as to the Chief Constable. Pursuant to Article 9(8) of the 1987 Order, the ICPC issued a statement whether the investigation had been conducted to its satisfaction and, if not, specifying any respect in which it had not been so conducted. 78. The Chief Constable was required under Article 10 of the 1987 Order to determine whether the report indicated that a criminal offence had been committed by a member of the police force. If he so decided and considered that the officer ought to be charged, he was required to send a copy of the report to the DPP. If the DPP decided not to prefer criminal charges, the Chief Constable was required to send a memorandum to the ICPC indicating whether he intended to bring disciplinary proceedings against the officer (Article 10(5)) save where disciplinary proceedings had been brought and the police officer had admitted the charges (Article 11(1)). Where the Chief Constable considered that a criminal offence had been committed but that the offence was not such that the police officer should be charged or where he considered that no criminal offence had been committed, he was required to send a memorandum indicating whether he intended to bring disciplinary charges and, if not, his reasons for not proposing to do so (Article 11(6) and (7)). 79. If the ICPC considered that a police officer subject to investigation ought to be charged with a criminal offence, it could direct the Chief Constable to send the DPP a copy of the report on that investigation (Article 12(2)). It could also recommend or direct the Chief Constable to prefer such disciplinary charges as the ICPC specified (Article 13(1) and (3)). 80. The Director of Public Prosecutions (the DPP), appointed pursuant to the Prosecution of Offences (Northern Ireland) 1972 (the 1972 Order) is an independent officer with at least 10 years’ experience of the practice of law in Northern Ireland who is appointed by the Attorney General and who holds office until retirement, subject only to dismissal for misconduct. His duties under Article 5 of the 1972 Order are inter alia: “(a) to consider, or cause to be considered, with a view to his initiating or continuing in Northern Ireland any criminal proceedings or the bringing of any appeal or other proceedings in or in connection with any criminal cause or matter in Northern Ireland, any facts or information brought to his notice, whether by the Chief Constable acting in pursuance of Article 6(3) of this Order or by the Attorney General or by any other authority or person; (b) to examine or cause to be examined all documents that are required under Article 6 of this Order to be transmitted or furnished to him and where it appears to him to be necessary or appropriate to do so to cause any matter arising thereon to be further investigated; (c) where he thinks proper to initiate, undertake and carry on, on behalf of the Crown, proceedings for indictable offences and for such summary offences or classes of summary offences as he considers should be dealt with by him.” 81. Article 6 of the 1972 Order requires inter alia Coroners and the Chief Constable of the RUC to provide information to the DPP as follows: “(2) Where the circumstances of any death investigated or being investigated by a coroner appear to him to disclose that a criminal offence may have been committed he shall as soon as practicable furnish to the [DPP] a written report of those circumstances. (3) It shall be the duty of the Chief Constable, from time to time, to furnish to the [DPP] facts and information with respect to - (a) indictable offences [such as murder] alleged to have been committed against the law of Northern Ireland; ... and at the request of the [DPP], to ascertain and furnish to the [DPP] information regarding any matter which may appear to the [DPP] to require investigation on the ground that it may involve an offence against the law of Northern Ireland or information which may appear to the [DPP] to be necessary for the discharge of his functions under this Order.” 82. According to the Government’s observations submitted on 18 June 1998, it had been the practice of successive DPPs to refrain from giving reasons for decisions not to institute or proceed with criminal prosecutions other than in the most general terms. This practice was based upon the consideration that (1) if reason were given in one or more cases, they would be required to be given in all. Otherwise, erroneous conclusions might be drawn in relation to those cases where reasons were refused, involving either unjust implications regarding the guilt of some individuals or suspicions of malpractice; (2) the reason not to prosecute might often be the unavailability of a particular item of evidence essential to establish the case (e.g. sudden death or flight of a witness or intimidation). To indicate such a factor as the sole reason for not prosecuting might lead to assumptions of guilt in the public estimation; (3) the publication of the reasons might cause pain or damage to persons other than the suspect (e.g. the assessment of the credibility or mental condition of the victim or other witnesses); (4) in a substantial category of cases decisions not to prosecute were based on the DPP’s assessment of the public interest. Where the sole reason not to prosecute was the age, mental or physical health of the suspect, publication would not be appropriate and could lead to unjust implications; (5) there might be considerations of national security which affected the safety of individuals (e.g. where no prosecution could safely or fairly be brought without disclosing information which would be of assistance to terrorist organisations, would impair the effectiveness of the counter-terrorist operations of the security forces or endanger the lives of such personnel and their families or informants). 83. Decisions of the DPP not to prosecute have been subject to applications for judicial review in the High Court. In R v. DPP ex parte C (1995) 1 CAR, p. 141, Lord Justice Kennedy held, concerning a decision of the DPP not to prosecute in an alleged case of buggery: “From all of those decisions it seems to me that in the context of the present case this court can be persuaded to act if and only if it is demonstrated to us that the Director of Public Prosecutions acting through the Crown Prosecution Service arrived at the decision not to prosecute: (1) because of some unlawful policy (such as the hypothetical decision in Blackburn not to prosecute where the value of goods stolen was below £100); (2) because the Director of Public Prosecutions failed to act in accordance with his own settled policy as set out in the code; or (3) because the decision was perverse. It was a decision at which no reasonable prosecutor could have arrived.” 84. In the case of R v. the DPP and Others ex parte Timothy Jones the Divisional Court on 22 March 2000 quashed a decision not to prosecute for alleged gross negligence causing a death in dock unloading on the basis that the reasons given by the DPP – that the evidence was not sufficient to provide a realistic prospect of satisfying a jury – required further explanation. 85. R v. DPP ex parte Patricia Manning and Elizabeth Manning (decision of the Divisional Court of 17 May 2000) concerned the DPP’s decision not to prosecute any prison officer for manslaughter in respect of the death of a prisoner, although the inquest jury had reached a verdict of unlawful death - there was evidence that prison officers had used a neck lock which was forbidden and dangerous. The DPP reviewing the case still concluded that the Crown would be unable to establish manslaughter from gross negligence. The Lord Chief Justice noted: “Authority makes clear that a decision by the Director not to prosecute is susceptible to judicial review: see, for example, R. v. Director of Public Prosecutions, ex parte C [1995] 1 Cr. App. R. 136. But, as the decided cases also make clear, the power of review is one to be sparingly exercised. The reasons for this are clear. The primary decision to prosecute or not to prosecute is entrusted by Parliament to the Director as head of an independent, professional prosecuting service, answerable to the Attorney General in his role as guardian of the public interest, and to no-one else. It makes no difference that in practice the decision will ordinarily be taken by a senior member of the CPS, as it was here, and not by the Director personally. In any borderline case the decision may be one of acute difficulty, since while a defendant whom a jury would be likely to convict should properly be brought to justice and tried, a defendant whom a jury would be likely to acquit should not be subjected to the trauma inherent in a criminal trial. If, in a case such as the present, the Director’s provisional decision is not to prosecute, that decision will be subject to review by Senior Treasury Counsel who will exercise an independent professional judgment. The Director and his officials (and Senior Treasury Counsel when consulted) will bring to their task of deciding whether to prosecute an experience and expertise which most courts called upon to review their decisions could not match. In most cases the decision will turn not on an analysis of the relevant legal principles but on the exercise of an informed judgment of how a case against a particular defendant, if brought, would be likely to fare in the context of a criminal trial before (in a serious case such as this) a jury. This exercise of judgment involves an assessment of the strength, by the end of the trial, of the evidence against the defendant and of the likely defences. It will often be impossible to stigmatise a judgment on such matters as wrong even if one disagrees with it. So the courts will not easily find that a decision not to prosecute is bad in law, on which basis alone the court is entitled to interfere. At the same time, the standard of review should not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the test were too exacting an effective remedy would be denied.” As regards whether the DPP had a duty to give reasons, the Lord Chief Justice said: “It is not contended that the Director is subject to an obligation to give reasons in every case in which he decides not to prosecute. Even in the small and very narrowly defined cases which meet Mr Blake’s conditions set out above, we do not understand domestic law or the jurisprudence of the European Court of Human Rights to impose an absolute and unqualified obligation to give reasons for a decision not to prosecute. But the right to life is the most fundamental of all human rights. It is put at the forefront of the Convention. The power to derogate from it is very limited. The death of a person in the custody of the State must always arouse concern, as recognised by section 8(1)(c), (3)(b) and (6) of the Coroner’s Act 1988, and if the death resulted from violence inflicted by agents of the State that concern must be profound. The holding of an inquest in public by an independent judicial official, the coroner, in which interested parties are able to participate must in our view be regarded as a full and effective inquiry (see McCann v. United Kingdom [1996] 21 EHRR 97, paragraphs 159 to 164). Where such an inquest following a proper direction to the jury culminates in a lawful verdict of unlawful killing implicating a person who, although not named in the verdict, is clearly identified, who is living and whose whereabouts are known, the ordinary expectation would naturally be that a prosecution would follow. In the absence of compelling grounds for not giving reasons, we would expect the Director to give reasons in such a case: to meet the reasonable expectation of interested parties that either a prosecution would follow or a reasonable explanation for not prosecuting be given, to vindicate the Director’s decision by showing that solid grounds exist for what might otherwise appear to be a surprising or even inexplicable decision and to meet the European Court’s expectation that if a prosecution is not to follow a plausible explanation will be given. We would be very surprised if such a general practice were not welcome to Members of Parliament whose constituents have died in such circumstances. We readily accept that such reasons would have to be drawn with care and skill so as to respect third party and public interests and avoid undue prejudice to those who would have no opportunity to defend themselves. We also accept that time and skill would be needed to prepare a summary which was reasonably brief but did not distort the true basis of the decision. But the number of cases which meet Mr Blake’s conditions is very small (we were told that since 1981, including deaths in police custody, there have been seven such cases), and the time and expense involved could scarcely be greater than that involved in resisting an application for judicial review. In any event it would seem to be wrong in principle to require the citizen to make a complaint of unlawfulness against the Director in order to obtain a response which good administrative practice would in the ordinary course require.” On this basis, the court reviewed whether the reasons given by the DPP in that case were in accordance with the Code for Crown Prosecutors and capable of supporting a decision not to prosecute. It found that the decision had failed to take relevant matters into account and that this vitiated the decision not to prosecute. The decision was quashed and the DPP was required to reconsider his decision whether or not to prosecute. 86. In the Matter of an Application by David Adams for Judicial Review, the High Court in Northern Ireland on 7 June 2000 considered the applicant’s claim that the DPP had failed to give adequate and intelligible reasons for his decision not to prosecute any police officer concerned in the arrest during which he had suffered serious injuries and for which in civil proceedings he had obtained an award of damages against the police. It noted that there was no statutory obligation on the DPP under the 1972 Order to give reasons and considered that no duty to give reasons could be implied. The fact that the DPP in England and Wales had in a number of cases furnished detailed reasons, whether from increasing concern for transparency or in the interests of the victim’s families, was a matter for his discretion. It concluded on the basis of authorities that only in exceptional cases such as the Manning case (paragraph 85 above) would the DPP be required to furnish reasons to a victim for failing to prosecute and that review should be limited to where the principles identified by Lord Justice Kennedy (paragraph 83 above) were infringed. Notwithstanding the findings in the civil case, they were not persuaded that the DPP had acted in such an aberrant, inexplicable or irrational manner that the case cried out for reasons to be furnished as to why he had so acted. 87. The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (UN Force and Firearms Principles) were adopted on 7 September 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders. 88. Paragraph 9 of the UN Force and Firearms Principles provides, inter alia, that the “intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life”. 89. Other relevant provisions read as follows: Paragraph 10 “... law enforcement officials shall identify themselves as such and shall give a clear warning of their intent to use firearms, with sufficient time for the warnings to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.” Paragraph 22 “... Governments and law enforcement agencies shall ensure that an effective review process is available and that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances. In cases of death and serious injury or other grave consequences, a detailed report shall be sent promptly to the competent authorities responsible for administrative review and judicial control.” Paragraph 23 “Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process, including a judicial process. In the event of the death of such persons, this provision shall apply to their dependants accordingly.” 90. Paragraph 9 of the United Nations Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, adopted on 24 May 1989 by the Economic and Social Council Resolution 1989/65, (UN Principles on Extra-Legal Executions) provides, inter alia, that: “There shall be a thorough, prompt and impartial investigation of all suspected cases of extra legal, arbitrary and summary executions, including cases where complaints by relatives or other reliable reports suggest unnatural death in the above circumstances ...” 91. Paragraphs 10 to 17 of the UN Principles on Extra-Legal Executions contain a series of detailed requirements that should be observed by investigative procedures into such deaths. Paragraph 10 states, inter alia: “The investigative authority shall have the power to obtain all the information necessary to the inquiry. Those persons conducting the inquiry ... shall also have the authority to oblige officials allegedly involved in any such executions to appear and testify ...” Paragraph 11 specifies: “In cases in which the established investigative procedures are inadequate because of a lack of expertise or impartiality, because of the importance of the matter or because of the apparent existence of a pattern of abuse, and in cases where there are complaints from the family of the victim about these inadequacies or other substantial reasons, Governments shall pursue investigations through an independent commission of inquiry or similar procedure. Members of such a commission shall be chosen for their recognised impartiality, competence and independence as individuals. In particular, they shall be independent of any institution, agency or person that may be the subject of the inquiry. The commission shall have the authority to obtain all information necessary to the inquiry and shall conduct the inquiry as provided in these principles.” Paragraph 16 provides, inter alia: “Families of the deceased and their legal representatives shall be informed of, and have access to, any hearing as well as all information relevant to the investigation and shall be entitled to present other evidence ...” Paragraph 17 provides, inter alia: “A written report shall be made within a reasonable time on the methods and findings of such investigations. The report shall be made public immediately and shall include the scope of the inquiry, procedures, methods used to evaluate evidence as well as conclusions and recommendations based on findings of fact and on applicable law ...” 92. The “Minnesota Protocol” (Model Protocol for a legal investigation of extra-legal, arbitrary and summary executions, contained in the UN Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions) provides, inter alia, in section B on the “Purposes of an inquiry”: “As set out in paragraph 9 of the Principles, the broad purpose of an inquiry is to discover the truth about the events leading to the suspicious death of a victim. To fulfil that purpose, those conducting the inquiry shall, at a minimum, seek: (a) to identify the victim; (b) to recover and preserve evidentiary material related to the death to aid in any potential prosecution of those responsible; (c) to identify possible witnesses and obtain statements from them concerning the death; (d) to determine the cause, manner, location and time of death, as well as any pattern or practice that may have brought about the death; (e) to distinguish between natural death, accidental death, suicide and homicide; (f) to identify and apprehend the person(s) involved in the death; (g) to bring the suspected perpetrator(s) before a competent court established by law.” In section D, it is stated that “In cases where government involvement is suspected, an objective and impartial investigation may not be possible unless a special commission of inquiry is established ...”. 93. In the report on its visit to the United Kingdom and the Isle of Man from 8 to 17 September 1999, published on 13 January 2000, the European Committee for the Prevention of Torture (the CPT) reviewed the system of preferring criminal and disciplinary charges against police officers accused of ill-treating persons. It commented, inter alia, on the statistically few criminal prosecutions and disciplinary proceedings which were brought, and identified certain aspects of the procedures which cast doubt on their effectiveness: The chief officers appointed officers from the same force to conduct the investigations, save in exceptional cases where they appointed an officer from another force, and the majority of investigations were unsupervised by the Police Complaints Authority. It stated at paragraph 55: “As already indicated, the CPT itself entertains reservations about whether the PCA [the Police Complaints Authority], even equipped with the enhanced powers which have been proposed, will be capable of persuading public opinion that complaints against the police are vigorously investigated. In the view of the CPT, the creation of a fully-fledged independent investigating agency would be a most welcome development. Such a body should certainly, like the PCA, have the power to direct that disciplinary proceedings be instigated against police officers. Further, in the interests of bolstering public confidence, it might also be thought appropriate that such a body be invested with the power to remit a case directly to the CPS for consideration of whether or not criminal proceedings should be brought. In any event, the CPT recommends that the role of the ‘chief officer’ within the existing system be reviewed. To take the example of one Metropolitan Police officer to whom certain of the chief officer’s functions have been delegated (the Director of the CIB [Criminal Investigations Bureau]), he is currently expected to: seek dispensations from the PCA; appoint investigating police officers and assume managerial responsibility for their work; determine whether an investigating officer’s report indicates that a criminal offence may have been committed; decide whether to bring disciplinary proceedings against a police officer on the basis of an investigating officer’s report, and liase with the PCA on this question; determine which disciplinary charges should be brought against an officer who is to face charges; in civil cases, negotiate settlement strategies and authorise payments into court. It is doubtful whether it is realistic to expect any single official to be able to perform all of these functions in an entirely independent and impartial way. 57. ...Reference should also be made to the high degree of public interest in CPS [Crown Prosecution Service] decisions regarding the prosecution of police officers (especially in cases involving allegations of serious misconduct). Confidence about the manner in which such decisions are reached would certainly be strengthened were the CPS to be obliged to give detailed reasons in cases where it was decided that no criminal proceedings should be brought. The CPT recommends that such a requirement be introduced.” | 1 |
dev | 001-4887 | ENG | GBR | ADMISSIBILITY | 1,998 | MITCHELL v. THE UNITED KINGDOM | 4 | Inadmissible | null | The applicant is a British citizen born in 1968 and currently residing in Chelsea, London. In the proceedings before the Court she is represented by Mr Bulathwela of Antons, solicitors of Haringay, London. The facts of the case, as they have been submitted by the applicant, may be summarised as follows: The applicant was born in the United Kingdom and has lived there all her life. The applicant met her husband, Craig Mitchell a Jamaican citizen, in November 1991 and started to cohabit shortly after that date. On 6 November 1991, Mr Mitchell had been admitted to the United Kingdom as a visitor for 6 months subject to a condition prohibiting employment. Mr Mitchell did not seek to regularise his stay in the United Kingdom. His status was discovered when he was acquitted on drugs charges on 28 April 1993. At this time, Mr Mitchell admitted to immigration officers that he had undertaken casual labouring work and that he knew he had overstayed his leave to remain. He was served with a notice of intention to deport and detained. He was released on bail on 24 May 1993. On 2 July 1993 the applicant and Mr Mitchell married and on 27 March 1994 their daughter was born. Mr Mitchell’s appeal against the decision to deport was dismissed on 16 August 1993 and he was refused leave to appeal to the Immigration Appeal Tribunal on 28 October 1993. In 1993 the applicant’s previous solicitors applied, on Mr Mitchell’s behalf, to the Home Office to grant him further leave on the basis of his marriage to the applicant or in the alternative on the basis of their cohabitation. Immigration officers called at the applicant’s home to investigate if the marriage was genuine and discovered that Mr Mitchell had been arrested on 5 November 1994 for drug dealing. On 3 April 1995, Mr Mitchell was sentenced to 5 years’ imprisonment for possession with intent to supply crack cocaine. In the immigration service marriage questionnaire the applicant stated that she would accompany Mr Mitchell if he was deported. The applicant says that she and her daughter visited Mr Mitchell every fortnight since his conviction and maintained regular phone contact. On 5 October 1995, the Secretary of State signed a deportation order against Mr Mitchell. In February 1997, the applicant’s solicitors asked the Home Office to revoke the deportation order and to grant Mr Mitchell leave to stay. On 28 April 1997, the Secretary of State refused. On 8 September 1997, the Secretary of State confirmed that Mr Mitchell would be deported on his release on parole on 25 September 1997. By this time, the applicant was expecting her second child in October 1997. The applicant’s solicitors sought leave to apply for judicial review of the Home Office decision but the High Court refused on 18 September 1997. A revised decision dated 5 December 1997 from the Secretary of State stated: "insufficient evidence has been produced to substantiate the claim that a common-law relationship akin to a marriage has subsisted since November 1991, or at any time prior to the initiation of deportation proceedings against Mr Mitchell. ... as <the applicant> and the children of the marriage will be given the opportunity of accompanying Mr Mitchell on deportation, at public expense if necessary, the Secretary of State is of the view that any interference with family life would be minimal and would be justifiable when set against the need to maintain an effective immigration control." The Court of Appeal refused leave to apply for judicial review on 15 December 1997. Mr Mitchell was deported to Jamaica on 19 December 1997. | 0 |
dev | 001-83008 | ENG | HUN | CHAMBER | 2,007 | CASE OF KALOVITS v. HUNGARY | 4 | Violation of Art. 6-1 | null | 4. The applicant was born in 1955 and lives in Bátonyterenye. 5. In November 1991 criminal proceedings were instituted against him. 6. On 18 May 1993 the Balassagyarmat District Public Prosecutor's Office preferred a bill of indictment in the case, which concerned eleven other individuals. The applicant was charged with fraud and two counts of violating foreign exchange regulations. 7. Between 21 March 1995 and 4 February 2003, the Eger District Court held hearings over 79 days. It heard evidence from several experts and more than 100 witnesses. On the last-mentioned date, it acquitted the applicant. 8. On appeal by the prosecution, on 11 December 2003 the Heves County Regional Court upheld the applicant's acquittal. | 1 |
dev | 001-71673 | ENG | RUS | CHAMBER | 2,005 | CASE OF VANYAN v. RUSSIA | 3 | Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1 (conviction);Violation of Art. 6-1 and 6-3-c;Not necessary to examine Art. 8;Not necessary to examine Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Christos Rozakis | 8. The applicant was born in 1971 and lives in Moscow. 9. On 3 June 1998 the applicant was arrested and taken to the Kapotnya district police station in Moscow, where he was searched and found to be in possession of a sachet of heroin. In a decision of 4 June 1998 the head of the Kapotnya district police department held that the applicant had committed an act of petty hooliganism and ordered him to pay an administrative fine. He was released on 5 June 1998, according to his submissions, and on 4 June 1998, according to the Government. On 5 June 1998 criminal proceedings were brought against the applicant on suspicion of procuring and storing drugs. The investigation resulted in the indictment of the applicant for procurement, storage and sale of drugs, punishable under Article 228 § 4 of the Criminal Code. 10. On 2 April 1999 the Lyublinskiy District Court of Moscow convicted the applicant and SZ under Article 228 § 4 of the Criminal Code of having unlawfully procured, stored with a view to their sale and sold drugs in “particularly large” quantities. The applicant was sentenced to seven years’ imprisonment and a confiscation order was made. Further to a medical report, he was ordered to undergo compulsory psychiatric treatment for drug addiction. 11. At the hearing before the District Court the applicant stated that on 2 June 1998 he had telephoned SZ. He asked SZ to obtain drugs for him. SZ said that he would try to do so and they agreed that the applicant would go to SZ’s flat. Shortly afterwards, OZ called the applicant and asked him to buy heroin for her. She complained that she badly needed drugs as she was suffering from withdrawal symptoms. Frightened that she might commit suicide, the applicant agreed and arranged to meet her near the block of flats where SZ lived. They met later in the evening. He received 200 roubles (RUR) from OZ and went to SZ’s flat, where SZ sold him one sachet of heroin at a cost of RUR 300. Since the amount of heroin bought from SZ was insufficient even for his own needs, he decided not to share it with OZ. The applicant further submitted to the court that he had subsequently given OZ a soporific, telling her that the narcotic was of bad quality and that he would repay her money later. As he left, he saw people approaching who were, as he subsequently learned, police officers. He escaped from them, throwing the drugs away. Later that night he returned and found the drugs. The next day, with the drugs still in his possession, he went to work, where he was arrested by the police. They found the drugs in his possession and seized them. 12. The applicant’s codefendant SZ also submitted at the hearing before the District Court that he had sold the applicant one sachet of heroin for RUR 300. 13. The District Court observed that the applicant’s testimony in court differed from that which he had consistently given throughout the pre-trial investigation, when he had pleaded guilty to buying two sachets of heroin from SZ, one for OZ and the other for himself, for RUR 400, of which RUR 200 had been received from OZ. He also admitted that he had repeatedly bought drugs from SZ. Similarly, SZ stated throughout the pretrial investigation that he had sold two sachets of heroin to the applicant for RUR 400. 14. The District Court heard EF and MB, police officers from the criminal investigation department of the Kapotnya district police of Moscow, who submitted that the police had information that the applicant was involved in selling drugs. OZ, who knew the applicant and could obtain drugs from him, was selected to verify that information. She agreed to take part in a “test purchase” of drugs, to be organised by the criminal investigation department. OZ was given RUR 200 in cash for that purpose. She was searched and no narcotics were found on her before her meeting with the applicant. She then made an appointment with the applicant. OZ was placed under permanent surveillance, in the course of which EF and MB saw the applicant and OZ meet, enter the block of flats in which SZ lived and leave the building some time later. OZ gave a previouslyagreed sign indicating that she had purchased drugs from the applicant. The police officers tried to apprehend the applicant but he escaped. OZ was brought to a police station where, in the presence of witnesses, she handed over a sachet of heroin which she claimed had been sold to her by the applicant, who had procured it from SZ. On the following day, the applicant was brought to the Kapotnya district police station, where he was searched and found to be in possession of a sachet of heroin. 15. Witness OZ explained to the District Court that she had voluntarily assisted the police in exposing drug trafficking by the applicant. Her evidence was similar to that of police officers EF and MB. 16. According to expert reports, the substance contained in the sachet handed to the police by OZ was heroin, weighing 0.008 grams, and the substance contained in the sachet found by the police in the applicant’s possession, in the circumstances described above, was also heroin, weighing 0.31 grams. 17. The District Court examined written evidence and statements by other witnesses, including a witness who had seen the applicant with a girl near the block of flats where SZ lived at the time of events in question. 18. The District Court held that statements by the applicant and SZ during the pre-trial investigation were corroborated by witnesses’ testimony, expert opinions and written evidence in the case. It found that all the evidence in the case had been obtained in accordance with the law and that the applicant’s defence rights, including the right to legal assistance, had been properly secured by the investigating authority. It concluded that on 2 June 1998 the applicant had procured two sachets of heroin from SZ, had sold one of them to OZ and had kept the other with a view to its sale. 19. The applicant appealed against the District Court’s judgment of 2 April 1999, complaining of violations of the criminal procedural law at the pre-trial investigation stage, including a violation of his defence rights. He also pointed out the lack of evidence of his guilt in the sale of drugs and asked that his actions be re-classified as the illicit procurement and storage of drugs without intent to sell, punishable under Article 228 § 1 of the Criminal Code. On 17 May 1999 the Moscow City Court upheld the findings of the District Court and dismissed the appeal. It found that the applicant’s guilt had been fully proven by his own statements and the other evidence in the case and that there had been no substantial violations of the criminal procedural law during the pre-trial investigation or at the trial which would require the quashing of the judgment. 20. On 10 November 2000 the Deputy President of the Supreme Court of the Russian Federation lodged an application with the Presidium of the Moscow City Court to review the case in supervisory proceedings (протест). The grounds for the request were that the applicant’s actions should have been classified as the illicit procurement and storage of drugs without intent to sell, punishable under Article 228 § 1 of the Criminal Code. The application called for the judgment of 2 April 1999 and the appeal decision of 17 May 1999 to be amended so that the applicant would be convicted under Article 228 § 1 of the Criminal Code, sentenced to two years’ imprisonment and released from that sentence pursuant to the relevant amnesty law. 21. On 16 November 2000, at the request of the Deputy President of the Supreme Court, the Presidium of the Moscow City Court, composed of seven judges, reviewed the case under the supervisory review procedure (пересмотр в порядке надзора). The applicant and his counsel were not informed of the application for supervisory review or the hearing before the Presidium of the Moscow City Court. They did not attend the hearing. 22. The court heard submissions from an acting public prosecutor of Moscow, who considered it necessary to reclassify the applicant’s actions under Article 228 § 1 of the Criminal Code. 23. The court noted that the applicant had been found guilty under Article 228 § 4 of the Criminal Code, in that he had procured drugs from SZ for RUR 400, with a view to their sale, and had kept “particularly large” quantities in his possession, namely heroin weighing 0.318 grams in two sachets; that he had then sold one sachet containing “particularly large” quantities of heroin – 0.008 grams – to OZ for RUR 200 and had kept the remaining “particularly large” quantity of heroin – 0.31 grams – in his possession until his arrest by police on 3 June 1998. 24. The Presidium of the Moscow City Court held: “... having correctly established the facts of the case, the court gave an incorrect legal assessment thereof in the judgment. In procuring the narcotics for his personal consumption and also for [OZ], at her request and with her money, in storing the narcotics and in handing over part of the heroin to [OZ] and keeping part of it for himself, G.A. Vanyan did not act with a view to selling [drugs] and he did not sell [drugs] but was acting as an accomplice to [OZ], who purchased heroin for her personal consumption.” It maintained that, in those circumstances, the applicant’s actions should be classified under Article 228 § 1 of the Criminal Code as joint participation in the procurement and storage of “particularly large” quantities of drugs without intent to sell. 25. The Presidium of the Moscow City Court held that the judgment of 2 April 1999 and the decision of 17 May 1999 in the applicant’s case should be varied, convicted him under Article 228 § 1 and sentenced him to two years’ imprisonment. It upheld the judgment and decision in the remaining part. With reference to the Amnesty Act of 26 May 2000, the court ordered that the applicant be released from serving his sentence and, consequently, from custody. 26. Section VI, Chapter 30 of the Code of Criminal Procedure of 1960, (Уголовно-процессуальный кодекс РСФСР), in force at the material time, allowed certain officials to challenge a judgment which had entered into force and to have the case reviewed. 27. Pursuant to Article 356 of the Code of Criminal Procedure of 1960, a judgment enters into force and is subject to execution as of the day when the appeal (cassation) instance pronounces its judgment or, if it has not been appealed against, when the time-limit for appeal has expired. “The grounds for quashing or changing a judgment [on supervisory review] are the same as [those for setting aside judgments which have not entered into force on cassation appeals].” “The grounds for quashing or changing a judgment on appeal are as follows: (i) prejudicial or incomplete inquest, investigation or court examination; (ii) inconsistency between the facts of the case and the conclusions reached by the court; (iii) grave violation of procedural law; (iv) misapplication of [substantive] law; (v) inadequacy of the sentence to the gravity of offence and the convict’s personality.” 28. Article 371 of the Code of Criminal Procedure of 1960 provided that the power to lodge a request for a supervisory review could be exercised by the Prosecutor General, the President of the Supreme Court of the Russian Federation and their respective Deputies in relation to any judgment other than those of the Presidium of the Supreme Court, and by the Presidents of the regional courts in respect of any judgment of a regional or subordinate court. A party to criminal or civil proceedings could solicit the intervention of such officials for a review. 29. According to Articles 374, 378 and 380 of the Code of Criminal Procedure of 1960, the request for supervisory review was to be considered by the judicial board (the Presidium) of the competent court. The court could examine the case on the merits, and was not bound by the scope and grounds of the extraordinary appeal. The Presidium could dismiss or uphold the request. If the request was dismissed, the earlier judgment remained in force. If it upheld the request, the Presidium could decide whether to quash the judgment and terminate the criminal proceedings, to remit the case for a new investigation, or for a fresh court examination at any instance, to uphold a first instance judgment reversed on appeal, or to amend and uphold any of the earlier judgments. 30. Article 380 §§ 2 and 3 of the Code of Criminal Procedure of 1960 provided that the Presidium could in the same proceedings reduce a sentence or amend the legal qualification of a conviction or sentence to the defendant’s benefit. If it found a sentence or legal qualification too lenient, it had to remit the case for a new examination. 31. Under Article 377 § 3 of the Code of Criminal Procedure of 1960, a public prosecutor took part in a hearing before a supervisory review instance. A convicted person and his or her counsel could be summoned if a supervisory review court found it necessary. If summoned, they were to be given an opportunity to examine the application for supervisory review and to make oral submissions at the hearing. On 14 February 2000 the Constitutional Court of the Russian Federation ruled that the above provision was incompatible with the federal Constitution where the grounds for supervisory review of a case were to the detriment of a convicted person. 32. Under Article 407 of the new Code of Criminal Procedure of 2001, which entered into force on 1 July 2002, a convicted person and his counsel are notified of the date, time and place of hearings before the supervisory review court. They may participate in the hearing provided that they have made a specific request to that effect. 33. Illicit procurement or storage of drugs without intent to sell is punishable under Article 228 § 1 of the Criminal Code of 1996, in force at the material time. Illicit procurement or storage of drugs with intent to sell and the sale of drugs in “particularly large” quantities are punishable under Article 228 § 4 of the Criminal Code. 34. Under Article 84 § 2 of the Criminal Code, convicted persons can be released from punishment by an amnesty act. Under Article 86 § 2 of the Code, a person is considered not to have been convicted if he or she released from punishment. 35. Section 6 of the Operational-Search Activities Act of 1995 lists a number of techniques that may be used by law-enforcement or security authorities for the purposes of, inter alia, investigating and preventing offences. In particular, the police may carry out a “test purchase” (проверочная закупка) where, inter alia, a criminal case has been opened or information concerning the preparation or commission of an offence has become known to the police and the available data are insufficient for bringing criminal proceedings (section 7). The taking of operational-search measures which interfere with individuals’ constitutional rights to respect for their correspondence, telephone communications and home is allowed if authorised, as a general rule, by a court (section 8). The “test purchase” of goods, the free sale of which is prohibited, and certain undercover operations by agents or persons assisting them, are carried out on the basis of a decision sanctioned by the head of an agency engaged in operational-search activities (section 8). Results of operational-search activities can serve as a basis for bringing criminal proceedings and can be used as evidence in accordance with the legislation on criminal procedure (section 11). | 1 |
dev | 001-115476 | ENG | AUT | ADMISSIBILITY | 2,012 | BREINESBERGER AND WENZELHUEMER v. AUSTRIA | 4 | Inadmissible | Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska | 1. The applicants, Mr Walter Franz Breinesberger and Mr Hermann Wenzelhuemer, are Austrian nationals who were born in 1942 and 1948 respectively and live in Eferding. They were represented before the Court by Haslinger/Nagele Rechtsanwälte GmbH, lawyers practising in Linz. 2. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The first applicant had been employed by the Sparkasse Eferding bank since 1962 and became a member of the board of directors (Vorstand) in 1991. The second applicant became a member of the board of directors of the same bank in 1993. 5. In the year 2000 preliminary investigations (Vorerhebungen) were initiated concerning the applicants on suspicion of aggravated fraud. The applicants were taken into pre-trial detention on 28 August 2000 and were released again on 11 September 2000. 6. On 20 March 2002 the Wels public prosecutor issued a bill of indictment charging the applicants with the offence of aggravated fraud, alleging that from March 1994 onwards the applicants had failed to repay commissions on loans to customers in 190 cases, had failed to reimburse legal fees by recording them under the headings “final entry” or “loan interest” in four cases and had charged higher interest on overdrafts than had been agreed in 127 cases. 7. On 19 October 2004, and after forty days of hearings held between 24 June 2003 and 19 October 2004, the Wels Regional Court, sitting as a court with two professional and two lay judges (Schöffengericht), convicted the applicants of aggravated fraud in respect of the first two events, namely failure to repay loan commissions in 179 cases and legal fees in four cases, and sentenced each of them to twenty-four months’ imprisonment, sixteen months of which were suspended with probation. The judgment was delivered in public at the end of the fortieth day of hearings. 8. On 24 May 2005 the applicants filed an application for acceleration of the proceedings (Fristsetzungsantrag) under section 91 of the Courts Act (Gerichtsorganisationsgesetz), requesting that a time-limit be set within which the Regional Court must send them the minutes of the last hearing and the written judgment. 9. The written judgment of 236 pages was served on the applicants’ counsel on 17 June 2005. 10. On 20 June 2005 the applicants lodged an application under Article 285 § 2 of the Code of Criminal Procedure (Strafprozeßordnung) seeking to extend the time-limit for lodging a plea of nullity and an appeal against the sentence, owing to the complexity of the case. By a decision of 23 June 2005 the Wels Regional Court granted the application, referring to the complexity and volume of documentation in the case, and extended the time-limit for exercise of the remedies by a further four weeks. 11. On 11 August 2005 the applicants lodged a plea of nullity and an appeal against the sentence. 12. With a decision dated 10 November 2005 the time limit for the Wels public prosecutor to submit observations on the plea of nullity was extended by a further four weeks. On 5 January 2006 the Wels public prosecutor submitted comments on the plea of nullity. The plea of nullity was transferred to the Supreme Court on 12 January 2006. On 6 March 2006 the Supreme Court forwarded the file to the Attorney-General’s Office (Generalprokuratur) for observations. The Attorney-General’s Office submitted its comments on 29 November 2006, which were served on the applicants on 4 January 2007, together with the information that they could lodge their observations on the comments within fourteen days. 13. On 11 January 2007 the applicants made an application seeking to extend the time-limit in which to submit observations on the AttorneyGeneral’s Office’s comments by a further two weeks. The application was granted by the Supreme Court on 16 January 2007. 14. On 31 January 2007 the applicants submitted their comments on the Attorney General’s Office’s observations. 15. In a judgment of 15 February 2007 concerning the plea of nullity, served on counsel on 4 May 2007, the Supreme Court quashed the parts of the conviction that related to eight counts of alleged fraud regarding the failure to repay commissions on loans to customers, but dismissed the remainder of the plea of nullity as unfounded. However, in accordance with its decision on the eight counts in question, the Supreme Court also quashed the sentence passed by the Regional Court and referred the case back to the first-instance court for a retrial with regard to the eight counts and for sentencing. 16. The Wels public prosecutor subsequently withdrew the bill of indictment in so far as it concerned those eight counts. 17. On 20 July 2007 the Wels Regional Court, to which it only remained to decide on the overall sentence in respect of the applicants, sentenced each of the applicants to two years’ imprisonment, suspended with probation for one year. The case was then sent to the Linz Court of Appeal for determination of the appeal against the sentence. 18. On 15 November 2007 the Linz Court of Appeal partly upheld the public prosecutor’s appeal and sentenced each of the applicants to twentyfour months’ imprisonment, twenty months of which were suspended with probation for one year. 19. That judgment was served on the applicants’ counsel on 31 January 2008. 20. Article 285 § 1 of the Code of Criminal Procedure (Strafprozeßordnung) at the material time provided that a complainant could submit a plea of nullity, giving reasons, within four weeks after service of the written first-instance judgment. 21. Paragraph 2 of the provision provided at the material time as follows: “Where the proceedings are on an extremely large scale the first-instance court shall, if the applicant so requests, extend the time-limit referred to in paragraph 1 by the length of time required – particularly in view of the exceptional length of the trial or the exceptional volume of the minutes of the proceedings, the remainder of the case file or the written judgment – in order to ensure adequate preparation of the defence (Article 6 § 3 (b) of the Convention for the Protection of Human Rights and Fundamental Freedoms, Federal Law Gazette No. 210/1958, and Article 2 of Protocol No. 7 thereto, Federal Law Gazette No. 628/1988) or of the prosecution of the case.” | 0 |
dev | 001-23825 | ENG | FIN | ADMISSIBILITY | 2,004 | TIMPERI v. FINLAND | 4 | Inadmissible | Nicolas Bratza | The applicant, Mrs Aila Timperi, is a Finnish national, who was born in 1951 and lives in Oulu. She is represented before the Court by Mr Heikki Sillanpää, a lawyer practising in Forssa. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant was employed by the city of Forssa as an adviser in housekeeping, giving for instance cooking courses. Her employer made a report to the police, alleging that she had embezzled money. The public prosecutor brought charges against the applicant for aggravated embezzlement etc. during the period September 1988 and November 1996, amounting to FIM 450,000 (EUR 75,684). The complainant, the city of Forssa, claimed damages. The applicant denied the charges as well as the other claims. The District Court of Forssa (käräjäoikeus, tingsrätten) heard some twenty witnesses during four days. On 9 September 1997 the District Court, composed of a professional judge and three laymen, convicted the applicant and sentenced her to nine months' imprisonment. She was ordered to pay damages amounting to FIM 439,133 plus interest and legal costs. Insofar as the sentence was concerned, the judgment was not unanimous, as it was based on the opinion of three lay judges, whereas the professional judge in his dissenting opinion considered that one year and two months' suspended imprisonment was a sufficient sanction. At this point, the public prosecutor ordered a further pre-trial investigation to be carried out as to what information the applicant's superiors and other employees of the complainant had in the spring of 1996 concerning income allegedly unaccounted for. Subsequently, the applicant learned that lay judge T., who had examined the case in the District Court, was an employee of the complainant in her case. The applicant appealed to the Turku Court of Appeal (hovioikeus, hovrätten), denying the charges. She argued that lay judge T. had been disqualified from deciding her case for the aforementioned reason. She also requested an oral hearing with a view to adducing more documentary evidence, rehearing a witness and hearing new witnesses. According to the applicant, the witness statements before the District Court were not properly entered into the minutes and only statements supporting the District Court's conclusions were included. On 20 January 1999 the Court of Appeal gave judgment, finding that lay judge T. had not been disqualified and, having listened to the audio tapes from the District Court's hearings and read the new pre-trial report, that the proposed new evidence would not clarify the matter further. Thus, holding an oral hearing was manifestly unnecessary. The Court of Appeal upheld the District Court's judgment. The applicant requested leave to appeal to the Supreme Court, still denying the charges and requesting, at any rate, that her sentence be reduced. She maintained that lay judge T. had been disqualified from deciding her case. She also requested an oral hearing before the Supreme Court. On 27 May 1999 the Supreme Court granted the applicant leave to appeal. The Supreme Court gave judgment on 22 February 2000 (KKO 2000:21). As to the alleged disqualification, the Supreme Court found that lay judge T., who at the relevant time had worked as a special teacher employed by the city of Forssa, had not lacked impartiality. The Supreme Court, referring to the relevant provisions in domestic law, gave the following reasoning for its decision: In assessing whether a judge is disqualified, attention has to be paid also to the provisions in the European Convention on Human Rights and Fundamental Freedoms and the case-law of the European Court of Human Rights. In light of the Human Rights Court's case-law, a judge must not hold a preconception or a have a prejudged view of the case in question or have a desire to favour one of the parties' interests (subjective impartiality). In addition, all legitimate doubts as to the judge's and the tribunal's impartiality must be eliminated (objective impartiality). In assessing impartiality from the last-mentioned point of view, attention has to paid to whether the judge's previous activities, his relations to the parties or the composition of the court from an objective point of view give a party reason to believe that impartiality is jeopardized. No one has indeed argued that lay judge T. would have been disqualified on subjective grounds. The question is what position should be taken on the fact that T. was an employee of the complainant, the city of Forssa. A party, such as the defendant in criminal proceedings, may understandably be worried, if the composition of the District Court includes a layman employed by the opposing party. Some weight may be given to the party's opinion of partiality based on employment, but what is decisive is whether the suspicion can be considered to be objectively justified. In assessing the case from this point of view the Supreme Court supposes that a layman cannot be considered disqualified merely on the ground that he is employed by a party to the proceedings. Attention has to be paid on the one hand to the size of the employer and the importance of the case in question to the employer and on the other hand to the character of the employee's functions. In the present case, by the end of 1997, the city of Forssa had 1,135 employees, including both permanent and temporary staff. Lay judge T., in his capacity as a temporary special teacher, was not part of the city's governing body nor had he any commission of trust. Neither was he involved in the housekeeping service in question. T. had a permanent post as a school welfare officer within the Lounais-Häme federation of municipalities vocational school, to which he could return when his temporary post ended. According to Timperi, special attention was paid to the guarantees of an impartial trial when the lay judges were chosen to sit in on the present case. In these circumstances, Timperi's doubts as to the impartiality of the court cannot be considered to be justified from an objective point of view. Thus, the Supreme Court finds that the afore-mentioned relationship between T. and the city of Forssa, the complainant in these criminal proceedings, is not such that it could justifiably call his independence and impartiality as a lay judge of the District Court into question. Thus, T. cannot be considered to be disqualified. The Supreme Court furthermore, noting that the Court of Appeal had found that holding an oral hearing would not have clarified the matter, saw no reason to differ. It upheld the applicant's conviction, but reduced the sentence to nine months' suspended imprisonment. Chapter 13, section 1 of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken), as in force at the material time, provided in relevant part: “...The following shall be the legal grounds for disqualification [of a judge]: when the judge is related by blood or marriage to one or the other party in a manner where marriage is prohibited under chapter 2 of the (1734) Marriage Code, including cousinship by blood although not by marriage; when the judge is the opposing party or a public opponent of a party; when the judge or his or her relative here listed has an interest in the case, when they stand to obtain particular benefit or suffer particular loss as a result of it; when the judge has served as a judge in the case in another court; when the judge has served as an advocate or a witness in the case; or when the judge has previously, on the orders of a court, decided a part of the case; or when the judge has a similar case pending before another court. ...” According to the District Court Act section 10, the provisions of law concerning disqualification of a judge apply also to laymen. | 0 |
dev | 001-23958 | ENG | POL | ADMISSIBILITY | 2,004 | SIEBERT v. POLAND | 4 | Inadmissible | Nicolas Bratza | The applicant, Mr Zdzisław Siebert, is a Polish national who was born in 1928 and lives in Poznań. The respondent Government were represented by Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. In 1961 the applicant was granted a tenancy, by way of an administrative decision, in respect of an apartment situated in a private house in Grochowska Street in Poznań, subject at that time to the compulsory management of the Poznań municipal administration. From 1982 to 1987 the applicant worked in Warsaw, apparently living in a hotel. During that period he was registered for a temporary stay in the local register of inhabitants. This temporary registration was only possible on a condition that he had a permanent address elsewhere. On 30 September 1983 the applicant voluntarily terminated the registration of his permanent residence in Poznań. On 10 October 1985 and on 28 October 1988 respectively, the municipal authorities cancelled the permanent registration of K.S. and E.S., the applicant's daughters, in view of the fact that they had emigrated from Poland to Germany. On 23 November 1987 the applicant's tenancy was revoked by means of an administrative decision on the grounds that the applicant had ceased to satisfy the contractual requirements, as he had moved out of his apartment and was registered as a permanent inhabitant in L. On 21 April 1988 the Housing Department of the Poznań Town Hall, acting as a second-instance administrative authority, upheld this decision. On 26 May 1989 the Supreme Administrative Court dismissed the applicant's appeal against the decision of 21 April 1988. On 23 May 1988 the Poznań Town Hall refused to register the applicant as having a permanent address in Grochowska Street. On 2 July 1988 this decision was upheld by the higher administrative authority, which considered that it was beyond dispute that the applicant was not entitled to have a permanent residence at the apartment concerned. He had lost his entitlement following the final decision of 21 April 1988, by which the allocation of the apartment to him had ceased to be valid. The applicant had not been living there since 1983, when he had moved out and left it to his daughter. He had also requested that his name be struck off the register of persons having a permanent address there, and had moved into his brother's apartment in L. In September 1989 the Housing Department of the Poznań Town Hall allocated replacement accommodation to the applicant, consisting of a room 12 square metres in size, with the use of a toilet and water tap in a communal flat. The applicant appealed against this decision, alleging that the rescission of the previous tenancy in Grochowska Street had been unlawful. On 9 November 1989 the second-instance administrative authority at the Poznań Town Hall dismissed the applicant's appeal. On 17 May 1990 the Minister of Justice refused to lodge an extraordinary appeal against the judgment of 26 May 1989, finding that it was in conformity with the law, particularly as the applicant had moved out of his apartment and registered his permanent address elsewhere, thus clearly relinquishing his entitlement to that apartment. In March 1990 the applicant was summoned to vacate the apartment, but the eviction was subsequently stayed at the applicant's request, and on the objection of the owner of the replacement accommodation. On 25 May 1990 the Supreme Administrative Court dismissed the applicant's appeal against the decision of 9 November 1989, considering that the replacement accommodation met legal standards, and that the applicant's appeal essentially sought to challenge the revocation of his entitlement to the previous apartment. In January 1991 the Poznań Town Hall informed the applicant that he could not be registered with a permanent address at Grochowska Street. On 12 March 1991 the President of Supreme Administrative Court informed the applicant that he would not consider requesting the Minister of Justice to lodge an extraordinary appeal against the judgment of 25 May 1990, account being taken of the fact that the allocation of replacement accommodation was the natural consequence of the applicant's loss of entitlement to the previous apartment. On 20 May 1991 the Local Government Board of Appeal of the Poznań Region quashed the decisions of 6 September 1989 and 9 November 1989 by virtue of which the applicant had been allocated replacement accommodation. The Board noted that the house in which this apartment was situated was owned by J.M., who had objected to that accommodation being allocated to the applicant. On 23 June 1992 the applicant lodged an action with the Poznań District Court for a declaration that the administrative decision of 1961 remained valid. He submitted that he had lost the legal title to the apartment following the unlawful 1988 decision in which the authorities had flagrantly breached the law, in particular by disregarding the fact that he had never permanently left the apartment. As a result of the decision depriving him of the tenancy contract, he could not be registered as an inhabitant, with all the adverse administrative consequences thereof. He referred to difficulties in obtaining his passport, and to the fact that he was regarded by the authorities as a homeless person. He had encountered difficulties in exercising his voting rights as it was only after persistent efforts that he was eventually registered on the electoral lists. On 6 October 1992 the District Court refused to entertain his claim, apparently considering that it lacked jurisdiction to examine issues pertaining to the validity of administrative decisions. In reply to the applicant's complaint that he had been deprived of his right to vote in the municipal elections in 1994, the Secretary of the State Elections Committee informed him on 7 July 1994 that the voters' lists had been prepared on the basis of municipal electoral lists. These lists included ex officio persons with permanent addresses in the given municipality. Persons temporarily residing in the municipality, who were not so registered could be included in electoral lists, provided that they submitted a request for registration. In 1997 the applicant complained to the Poznań Town Hall that, due to the fact that he did not have an officially registered permanent address, he could not obtain a certificate of entitlement to a share in a privatised State property (a NFI share certificate). Only those citizens who had a permanent abode were entitled to receive such certificates. In a reply dated 9 February 1997, the applicant was informed that under the applicable laws on privatisation he had not been classified as a person eligible to collect a NFI share certificate, in the absence of a permanent registered address. Nevertheless, as a consequence of a judgment of the Constitutional Court, confirmed by the Polish Parliament, the entitlement of persons without a registered permanent address to receive a NFI share certificate had been recognised and such persons would be granted their share certificates in the course of time. Apparently, the applicant is still living in the apartment in Grochowska Street. As he is regarded as staying in the apartment without any legal basis, he is obliged to pay double rent under applicable housing regulations. From 1945 on, housing matters were subject to a high degree of state control under successive acts of housing legislation. The most important characteristic of this system, a so called “special lease scheme” was that a tenancy was created by means of an administrative decision and not by a civil law contract between the landlord and the tenant. Under these protected tenancies, the tenants paid controlled rent and the owners could not terminate lease by giving notice on the tenant. Although “the special lease scheme” was abolished under the 1994 Act, the system of protected tenancy is still applicable to the tenants who had been allocated their apartments on the basis of previous administrative decisions. The obligation for Polish citizens residing in Poland to register their permanent address in a municipality's register of inhabitants is stipulated in Article 5 of the National Identity Cards and Registration of Persons Act 1974 (Ustawa o ewidencji ludności i dowodach osobistych z 10.04.1974). Under Article 6 of the 1974 Act, the notion of “living permanently” implies residing at a given address with the intention of making it the principal centre of one's vital interests. Article 9 (2) of the 1974 Act provided that: “a person applying to have their permanent or temporary residence registered shall submit a certificate to the effect that they are entitled to stay in the apartment (or other dwelling premises) concerned.” On 27 May 2002 the Polish Constitutional Court declared Article 9 (2) of the 1974 Act unconstitutional and, subsequently, this provision was repealed with effect from 19 June 2002. As a result of the judgment of the Constitutional Court, the certificate to the effect that a person is entitled to stay in an apartment is no longer a prerequisite for having his permanent or temporary residence registered. Under the Electoral Law of 1993 and of the Electoral Law of 2001 a person who has no fixed residence shall be registered, upon his own motion lodged 10 days before the election at the latest, as a voter in the electoral list in a commune in which he is staying. Under Article 31 of the National Investment Funds and Privatisation Act of 1993 (Ustawa o narodowych funduszach inwestycyjnych i ich prywatyzacji) every citizen of the Republic of Poland aged 18 or over and permanently residing in Poland was entitled to receive a National Investment Fund (NFI) share certificate (to be later converted into company stock). Under the amended version of this provision, which came into force on 31 May 1997, the Minister of Internal Affairs and Administration was responsible for drawing up the lists of persons, not having a permanent residence address in Poland, who were entitled to receive a NFI share certificate. | 0 |
dev | 001-59158 | ENG | GBR | GRANDCHAMBER | 2,001 | CASE OF JANE SMITH v. THE UNITED KINGDOM | 2 | No violation of Art. 8;No violation of P1-1;No violation of P1-2;No violation of Art. 6-1;No violation of Art. 14 | Lord Justice Schiemann;Luzius Wildhaber;Nicolas Bratza | 10. The applicant is a gypsy by birth. Since her birth she has travelled constantly, mainly in the Surrey area, with her family in search of work. After marrying her husband, A, approximately 20 years ago, this nomadic way of life continued. They have five children, born in 1975, 1977, 1982, 1989 and 1994. 11. The applicant and A are illiterate, as, due to their way of life, they have received little, if any, formal education. They regard travelling as detrimental to both the health of their family and to the education of their children. The applicant suffers from depression, her husband from severe gout and several of her children are asthmatic. 12. In pursuit of a more stable existence, the applicant and her husband applied repeatedly throughout the years for places on many of the local private and official sites in Surrey including the official sites in Runnymede. Their applications proved unsuccessful as all the sites were full with long waiting lists. Consequently, the applicant and her husband had no option but to continue travelling. They were required to move on from roadside to roadside on innumerable occasions. For a period of time they stayed at a private site but when it was redeveloped as an official site, they were forced to move on as no space was available for them. In 1984 they stayed on a relative’s site for a period of time but were forced to leave. While the Government have suggested that in fact the applicants owned this land and that it received planning permission, this was denied by the applicant. According to the applicant, the land belonged to her brother. When, following his divorce, the land was ordered to be sold by the court as part of the financial settlement, the applicant had to leave. 13. In March 1993, the applicant bought land known as 111A Almners Road, Runnymede. It was a portion of a garden in a Green Belt area where there was already some residential development. The applicant moved a mobile home onto the land and took up residence with her family. In a declaration dated 7 March 1996 the applicant’s uncle, Jasper Smith, a member of the Gypsy Council and an employee of Surrey County Council, stated that he had attempted on numerous occasions prior to 1993 to obtain a site on an official site on behalf of the applicant without success. 14. On 25 June 1993, Runnymede Borough Council (“the Council”) rejected the applicant’s application to join the waiting list for rented council accommodation on the basis that they had not lived in the borough for a minimum of three years. The applicant alleged that by this time they had lived for many years in the Runnymede area, although they had been compelled to move on frequently from place to place. 15. In 1988, the High Court had granted a declaration that Surrey County Council was in breach of its duty under section 6 of the Caravan Sites Act 1968 to provide provision for gypsies (R. v. Secretary of State ex parte Smith [1988] C.O.D. 3). In June 1989, the Secretary of State issued a direction under section 9 of the 1968 Act directing that 190 caravans should be accommodated. However, on 18 August 1989, the Borough of Runnymede was declared a designated area pursuant to section 12 of the Caravan Sites Act 1968. The area was designated on the basis that it was not expedient for adequate provision to be made for gypsies residing in or resorting to the borough. 16. The previous owner of 111A Almners Road, also a gypsy, had been refused planning permission in January 1993 to live on the land in a caravan on the basis that it conflicted with local and national planning policies. The Council considered that the stationing of a caravan would be detrimental to the character of the Green Belt. An enforcement notice had been issued requiring discontinuance of the unauthorised use. The applicant was aware of this situation and the fact that the previous owner had appealed to the Secretary of State for the Environment against the refusal of planning permission and the enforcement order. When the applicant purchased the land, she was advised that there was a special concession for granting planning permission to gypsies in Green Belt areas under Circular 28/77. Accordingly, she took over the appeal from the previous owner. 17. On 20 April 1993, a Public Enquiry was held. An Inspector appointed by the Department of Environment heard evidence and representations from the applicant and the Council. By a letter dated 3 June 1993, the Inspector dismissed the appeal. “10. The mobile home is situated on an enclosed plot of land fronting Almners Road, adjacent to No. 111. This land is separated from the adjacent house by a screen fence, which continues along the rear boundary of the appeal site. The site is contained on its other side boundary by a row of conifer trees. The land has a frontage of about 19 m to the road, most of which is formed by a hedge. … 12. From my inspection of the site and its surroundings and from the representations made I consider that there are two main issues… Firstly, whether the use of the land as a residential caravan site for a mobile home and associated operational development is appropriate to this part of the Metropolitan Green Belt; and, if not, secondly, whether there are very special circumstances that would justify the retention of inappropriate development in the Green Belt. 13. On the first issue, the use of land as a residential caravan site is not one of the purposes listed as being appropriate to the green belt in Planning Policy Guidance Note 2 (PPG2). However, policy C4 of the approved Surrey Structure Plan 1989 and policy PE2 of … the Replacement Structure Plan 1992 provide that gypsy caravan sites may be appropriate and necessary in the green belt, but they will not be considered acceptable as of right. 14. The appeals site lies within the south west sector of the Metropolitan Green Belt. This section is described as containing valuable green wedges which thrust inwards to the Thames west of Molesey. Lyne is a small settlement located within one of these wedges. Given its location within a narrow stretch of generally open countryside between Virginia Water and Chertsey I agree with the council that the appeals site lies within a particularly sensitive part of the green belt. 15. From my own observations I agree … that Almners Road comprises three distinct parts and that the appeals site lies within the significant gap between Nos 99 and 131 which is predominantly rural in character despite the presence of Nos 109 and 111. The rustic feel of the locality is enhanced by the woodlands to the rear of <the applicants’> land and the field on the opposite side… Notwithstanding the previous use of the land as part of the garden of No. 111, the unauthorised use and works represent an encroachment of additional development into a predominantly rural locality. It also contributes towards the coalescence of the nearby built up frontages on Almners Road and thereby the merger of nearby settlements. As a result I consider that the development subject to the appeals conflicts with the second and third objectives of government green belt policy listed in PPG2. … 16. Whilst the mobile home is set behind the front of the adjoining house and its range of visibility from the other direction on Almners Road is limited by conifers on its western boundary, it, and the related operational development is significantly different to the character of the touring caravans that are parked in some of the nearby gardens, which are incidental to the enjoyment of the residential curtilages within which they stand. Notwithstanding the support of some nearby residents, I consider that the discernible presence of the unauthorised development on the appeals site is harmful to the appearance of this mainly rural location. … In light of this and its particular impact on the aims of green belt policy, I conclude … that the use of the land for a residential caravan site for a mobile home and associated operational development is not appropriate to this part of the Metropolitan Green Belt. 17. Turning to my second issue, Circular 28/77 states that it may be necessary to accept the establishment of gypsy caravan sites in green belt areas and that there are advantages in gypsies providing their own sites. However, in designating Runnymede under the Caravan Sites Act 1968 on the grounds of expediency the Secretary of State gave significant weight to the extent of and characteristics of the green belt within the borough and the number of sites that had already been provided within these areas. … 18. Circular 28/77 advises that after a district or borough has been designated, authorities may have to be prepared to increase the provision they have made if there is a subsequent expansion of the gypsy population in their area and it is nearly 4 years since the designation of Runnymede in June 1989. However since then the quarterly surveys indicate that the number of vans parked illegally in the borough has tended to decline. Consequently, having regard to the reasons given for designation, there does not appear to be a case at this time for permitting additional gypsy caravan sites, in the green belt in Runnymede, contrary to policies H12 and H09, unless there are very special circumstances. 19. Having regard to the personal circumstances of <the applicants> none of the family requires regular hospital treatment and I do not consider the ailments of <the applicant and her husband> and two of their children are so exceptional or debilitating as to constitute compelling reasons for allowing inappropriate development in the green belt. Whilst I sympathise with <the applicants’> aim to have the two youngest children educated, only one of these is currently at school and there is no evidence that this locality is preferable to any other in terms of access to educational facilities. 20. I can appreciate <the applicants’> current desire to settle in one place but there is no specific reason why this has to be in the green belt. With regard to the consequences of <the applicants> having to vacate the site you state that they would have no alternative to reverting to their previous existence of moving from one unauthorised site to another, with consequent hardship for the family and inconvenience to the general public. In this respect … the borough and district councils have no record that <the applicants> have sought a place on any of the official sites and <the applicant> stated that she has not enquired whether there was any space on any of the sites occupied by her relatives. Additionally, it would be open to <the applicants> to seek priority housing from the Council. 21. … I accept that <the applicant and her husband> have lived and worked in this area for some time and that it might not be possible to accommodate <their> mobile home on any authorised site within the area. However, on the basis of the evidence at the inquiry I am not convinced that all avenues relating to possible alternative accommodation have been fully explored. I am not, therefore, assured that <the applicants> inevitably would have to return to living on unauthorised sites… In any event, I am not persuaded that such a consequence … together with any limited benefits that might arise in terms of the health and education of the family represent very special circumstances that would justify the retention of this inappropriate development in this particularly sensitive part of the Metropolitan Green Belt. …” 18. The applicant remained on her land in the caravan as the family had not been offered a place on an official campsite and thus had no alternative legal site to place their caravan. 19. On 29 July 1993, the applicant applied to the Council for planning permission to build a bungalow, of which there were already some 20 on Almners Road. The Council refused planning permission. On 16 September 1993, the applicant appealed this decision by written statement as she could not afford a public enquiry. 20. On 29 November 1993, an Inspector appointed by the Department of the Environment dismissed the appeal on similar grounds to the earlier appeal, namely that the bungalow was inappropriate within the Green Belt and that there were no special circumstances which would override the strong presumption against such a development, which in this case would contribute to the coalescence of existing developments and further diminish the rural character of the area. As a consequence, the applicant and her husband were in breach of the enforcement notice and liable to receive a summons issued by the Council for breach of Planning Regulations. 21. Injunction proceedings were instituted against the applicant and her family by the Council. On 5 September 1994, the Council obtained an injunction in the High Court requiring the applicant and her family to move off their land immediately. The applicant applied for judicial review of this decision and was granted limited legal aid. However, she received counsel’s opinion which advised that the application was doomed to failure. 22. In light of the new Criminal Justice and Public Order Act 1994, which came into force on 3 November 1994, the applicant, in fear of being on the roadside, applied to be placed on the local authority homeless list on 4 August 1994. The Council informed the applicant’s solicitors on 4 November 1994 that the applicant had been placed on the list. 23. The applicant was offered accommodation in two flats in a town. However, the rent was excessively high and there was no facility to keep her husband’s van nor his tarmacadaming and landscape gardening equipment. Moreover, the environment next to a busy, treeless road was contrary to the country existence which she and her family had enjoyed all their lives. They have applied for accommodation in a more natural environment but no offer has yet been made. The Council had previously offered three alternative pieces of land which were subsequently withdrawn due to a methane gas leak, boggy ground and vicinity to a rubbish dump respectively. 24. The local authority has stated that, in the event that the applicant is forced to leave the site, the authority will provide temporary accommodation for her until permanent accommodation becomes available. However, in view of the restrictions on development within the Green Belt, all accommodation offered will be in urban areas. 25. The 1995 Annual Report from Surrey County Council planning department revealed that following the coming into force of the Criminal Justice and Public Order Act 1994 the County Council no longer had an obligation to identify new gypsy caravan sites and that unless very special circumstances were proved it was unlikely that new sites would be allowed in Green Belt and sensitive areas. The statistics for 1994 showed that the official sites in the area catered for 44 caravans while there were another 26 caravans on unauthorised sites. 26. The applicant stated that in May 1997 the local authority decided to institute proceedings against her. Though no proceedings were issued, the Council threatened to do so from time to time and she lived under the threat of committal for contempt. The applicant’s husband continued to suffer from severe gout and was recently in hospital for treatment. He and the applicant both suffer from depression. Her eldest son, his wife, their son and baby lived with her, as well as three other children. The applicant’s children of school age were attending the local school regularly. The applicant stated that she continued to visit gypsy sites to see whether pitches were available but she has not been offered a pitch on any site and has not received any visits from the local authority. 27. In the Runnymede area, there were two local authority sites accommodating 50 caravans. In addition there were 12 caravans on authorised sites and 18 caravans on unauthorised sites. The applicant submitted that since the 1989 direction by the Secretary of State only 22 additional pitches were provided. Since 1996, there had been no increase in provision in either public or private sites and no decrease in the number of unlawful encampments. The applicant submitted that all the area of the Council was in the Metropolitan Green Belt area while the Government stated that only a large part of it was. The diagram and materials submitted from the Surrey Structure Plan 1994 indicates that 70% of the County was Green Belt, 20% urban and 10% countryside beyond the Green Belt, which includes some areas designated as areas of outstanding natural beauty (AONB) or designated landscape value (ADLV). Parts of the Green Belt area are also classed as AONB and ADLV. AONB and ADLV areas account for 40% of the County. According to the diagram, the Runnymede area consists entirely of Green Belt and urban centres. 28. The Town and Country Planning Act 1990 (as amended by the Planning and Compensation Act 1991) (“the 1990 Act”) consolidated pre-existing planning law. It provides that planning permission is required for the carrying out of any development of land (section 57 of the 1990 Act). A change in the use of land for the stationing of caravans can constitute a development (Restormel Borough Council v. Secretary of State for the Environment and Rabey [1982] Journal of Planning Law 785; John Davies v. Secretary of State for the Environment and South Hertfordshire District Council [1989] Journal of Planning Law 601). 29. An application for planning permission must be made to the local planning authority, which has to determine the application in accordance with the local development plan, unless material considerations indicate otherwise (section 54A of the 1990 Act). 30. The 1990 Act provides for an appeal to the Secretary of State in the event of a refusal of permission (section 78). With immaterial exceptions, the Secretary of State must, if either the appellant or the authority so desire, give each of them the opportunity of making representations to an inspector appointed by the Secretary of State. It is established practice that each inspector must exercise independent judgment and must not be subject to any improper influence (see the Bryan v. the United Kingdom judgment of 22 November 1995, Series A no. 335-A, p. 11, § 21). There is a further appeal to the High Court on the ground that the Secretary of State’s decision was not within the powers conferred by the 1990 Act, or that the relevant requirements of the 1990 Act were not complied with (section 288). 31. If a development is carried out without the grant of the required planning permission, the local authority may issue an “enforcement notice” if it considers it expedient to do so having regard to the provisions of the development plan and to any other material considerations (section 172 (1) of the 1990 Act). 32. There is a right of appeal against an enforcement notice to the Secretary of State on the grounds, inter alia, that planning permission ought to be granted for the development in question (section 174). As with the appeal against refusal of permission, the Secretary of State must give each of the parties the opportunity of making representations to an inspector. 33. Again there is a further right of appeal “on a point of law” to the High Court against a decision of the Secretary of State under section 174 (section 289). Such an appeal may be brought on grounds identical to an application for judicial review. It therefore includes a review as to whether a decision or inference based on a finding of fact is perverse or irrational (R. v. Secretary of State for the Home Department, ex parte Brind [1991] Appeal Cases 696, 764 H-765 D). The High Court will also grant a remedy if the inspector’s decision was such that there was no evidence to support a particular finding of fact; or the decision was made by reference to irrelevant factors or without regard to relevant factors; or made for an improper purpose, in a procedurally unfair manner or in a manner which breached any governing legislation or statutory instrument. However, the court of review cannot substitute its own decision on the merits of the case for that of the decision-making authority. 34. Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice, the local authority may enter the land and take the steps and recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so (section 178 of the 1990 Act). 35. The purpose of Green Belts and the operation of the policy to protect them is set out in the national policy document PPG 2 (January 1995). “1.1. The Government attaches great importance to Green Belts, which have been an essential element of planning policy for some four decades … 1.4. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the most important attribute of Green Belts is their openness. Green Belts can shape patterns of urban development at sub-regional and regional scale, and help to ensure that development occurs in locations allocated in development plans. They help to protect the countryside, be it in agricultural, forestry or other use. They can assist in moving towards more sustainable patterns of urban development. 1.5. There are five purposes in Green Belts: – to check the unrestricted sprawl of large built-up areas; – to prevent neighbouring towns from merging into one another; – to assist in safeguarding the countryside from encroachment; – to preserve the setting and special character of historic towns; and – to assist in urban regeneration by encouraging the recycling of derelict and other urban land. … 2.1. The essential characteristic of Green Belts is their permanence. Their protection must be maintained as far as can be seen ahead. … 3.1. The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances… 3.2. Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development.” 36. Part II of the Caravan Sites Act 1968 (“the 1968 Act”) was intended to combat the problems caused by the reduction in the number of lawful stopping places available to gypsies as a result of planning and other legislation and social changes in the post-war years, in particular the closure of commons carried out by local authorities pursuant to section 23 of the Caravan Sites and Control of Development Act 1960. Section 16 of the 1968 Act defined “gypsies” as: “persons of nomadic habit of life, whatever their race or origin, but does not include members of an organised group of travelling showmen, or of persons engaged in travelling circuses, travelling together as such”. 37. Section 6 of the 1968 Act provided that it should be the duty of local authorities: “to exercise their powers ... so far as may be necessary to provide adequate accommodation for gipsies residing in or resorting to their area”. 38. The Secretary of State could direct local authorities to provide caravan sites where it appeared to him to be necessary (section 9). 39. Where the Secretary of State was satisfied either that a local authority had made adequate provision for the accommodation of Gypsies, or that it was not necessary or expedient to make such provision, he could “designate” that district or county (section 12 of the 1968 Act). 40. The effect of designation was to make it an offence for any gypsy to station a caravan within the designated area with the intention of living in it for any period of time on the highway, on any other unoccupied land or on any occupied land without the consent of the occupier (section 10). 41. In addition, section 11 of the 1968 Act gave to local authorities within designated areas power to apply to a magistrates’ court for an order authorising them to remove caravans parked in contravention of section 10. 42. By the mid-1970s it had become apparent that the rate of site provision under section 6 of the 1968 Act was inadequate, and that unauthorised encampments were leading to a number of social problems. In February 1976, therefore, the Government asked Sir John Cripps to carry out a study into the operation of the 1968 Act. He reported in July 1976 (Accommodation for Gypsies: A report on the working of the Caravan Sites Act 1968, “the Cripps Report”). 43. Sir John estimated that there were approximately 40,000 Gypsies living in England and Wales. He found that: “Six-and-a-half years after the coming into operation of Part II of the 1968 Act, provision exists for only one-quarter of the estimated total number of gypsy families with no sites of their own. Three-quarters of them are still without the possibility of finding a legal abode ... Only when they are travelling on the road can they remain within the law: when they stop for the night they have no alternative but to break the law.” 44. The report made numerous recommendations for improving this situation. 45. Circular 28/77 was issued by the Department of the Environment on 25 March 1977. Its stated purpose was to provide local authorities with guidance on “statutory procedures, alternative forms of gypsy accommodation and practical points about site provision and management”. It was intended to apply until such time as more final action could be taken on the recommendations of the Cripps Report. 46. Among other advice, it encouraged local authorities to enable self-help by gypsies through the adoption of a “sympathetic and flexible approach to [Gypsies’] applications for planning permission and site licences”. Making express reference to cases where gypsies had bought a plot of land and stationed caravans on it only to find that planning permission was not forthcoming, it recommended that in such cases enforcement action not be taken until alternative sites were available in the area. 47. Circular 57/78, which was issued on 15 August 1978, stated, inter alia, that “it would be to everyone’s advantage if as many gypsies as possible were enabled to find their own accommodation”, and thus advised local authorities that “the special need to accommodate gypsies ... should be taken into account as a material consideration in reaching planning decisions”. 48. In addition, approximately £100 million was spent under a scheme by which one hundred per cent grants were made available to local authorities to cover the costs of creating gypsy sites. 49. Section 80 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”), which came into force on 3 November 1994, repealed sections 6-12 of the 1968 Act and the grant scheme referred to above. 50. Section 77 of the 1994 Act gives to a local authority power to direct an unauthorised camper to move. An unauthorised camper is defined as “a person for the time being residing in a vehicle on any land forming part of the highway, any other unoccupied land or any occupied land without the owner’s consent”. 51. Failure to comply with such a direction as soon as practicable, or re-entry upon the land within three months, is a criminal offence. Local authorities are able to apply to a magistrates’ court for an order authorising them to remove caravans parked in contravention of such a direction (section 78 of the 1994 Act). 52. In the case of R. v. Lincolnshire County Council, ex parte Atkinson (22 September 1995), Sedley J. referred to the 1994 Act as “Draconic” legislation. He commented that: “For centuries the commons of England provided lawful stopping places for people whose way of life was or had become nomadic. Enough common land had survived the centuries of enclosure to make this way of life still sustainable, but by s.23 of the Caravan Sites and Control of Development Act 1960 local authorities were given the power to close the commons to travellers. This they proceeded to do with great energy, but made no use of the concomitant powers given them by s.24 of the same Act to open caravan sites to compensate for the closure of the commons. By the Caravans Act 1968, therefore Parliament legislated to make the s.24 power a duty, resting in rural areas upon county councils rather than district councils… For the next quarter of a century there followed a history of non-compliance with the duties imposed by the Act of 1968, marked by a series of decisions of this court holding local authorities to be in breach of their statutory duty, to apparently little practical effect. The default powers vested in central government to which the court was required to defer, were rarely, if ever used. The culmination of the tensions underlying the history of non-compliance was the enactment of … the Act of 1994 …” 53. New guidance on gypsy sites and planning, in the light of the 1994 Act, was issued to local authorities by the Government in Circular 1/94 (5 January 1994), which cancelled Circular 57/78 (see above). Councils were told that: “In order to encourage private site provision, local planning authorities should offer advice and practical help with planning procedures to gypsies who wish to acquire their own land for development. ... The aim should be as far as possible to help gypsies to help themselves, to allow them to secure the kind of sites they require and thus help avoid breaches of planning control.” (para. 20) However: “As with other planning applications, proposals for gypsy sites should continue to be determined solely in relation to land-use factors. Whilst gypsy sites might be acceptable in some rural locations, the granting of permission must be consistent with agricultural, archaeological, countryside, environmental, and Green Belt policies ...” (para. 22). It was indicated that as a rule it would not be appropriate to make provision for gypsy sites in areas of open land where development was severely restricted, for example Areas of Outstanding Natural Beauty, Sites of Special Scientific Interest. Nor were gypsy sites regarded as being among those uses of land normally appropriate in a Green Belt (paragraph 13). 54. Further guidance issued by the Secretary of State dated 23 November 1994 concerned the unauthorised camping by gypsies and the power to give a direction to leave the land (CJPOA above). Paragraphs 6-9 required local authorities to adopt “a policy of toleration towards unauthorised gypsy encampments: “6. ... Where gypsies are camped unlawfully on council land and are not causing a level of nuisance which cannot be effectively controlled, an immediate forced eviction might result in unauthorised camping on a site elsewhere in the area which could give rise to greater nuisance. Accordingly, authorities should consider tolerating gypsies’ presence on the land for short periods and could examine the ways of minimising the level of nuisance on such tolerated sites, for example by providing basic services for gypsies e.g. toilets, a skip for refuse and a supply of drinking water. 8. Where gypsies are unlawfully camped on Government-owned land, it is for the local authority, with the agreement of the land-owning Department, to take any necessary steps to ensure that the encampment does not constitute a hazard to public health. It will continue to be the policy of the Secretaries of State that Government Departments should act in conformity with the advice that gypsies should not be moved unnecessarily from unauthorised encampments when they are causing no nuisance. 9. The Secretaries of State continue to consider that local authorities should not use their powers to evict gypsies needlessly. They should use their powers in a humane and compassionate fashion and primarily to reduce nuisance and to afford a higher level of protection to private owners of land.” 55. Paragraphs 10-13 further require local authorities to consider their obligations under other legislation before taking any decisions under the 1994 Act. These obligations include their duties concerning pregnant women and newly-born children, the welfare and education of children and the housing of homeless persons. In a judgment of 22 September 1995 (R. v. Lincolnshire County Council, ex parte Atkinson, R. v. Wealden District Council, ex parte Wales and R. v. Wealden District Council, ex parte Stratford, unreported), the High Court held that it would be an error of law for any local authority to ignore those duties which must be considered from the earliest stages. 56. In a letter dated 25 May 1998, the Department of the Environment drew to the attention of all local planning authorities in England that Circular 1/94 required local planning authorities to assess the need for gypsy accommodation in their areas and make suitable locational and/or criteria based policies against which to decide planning applications. The Government was concerned that this guidance had not been taken up. ACERT research (see below) had showed that 24% of local authorities (96) had no policy at all on gypsy sites and that many in the process of reviewing their plans at the time of the survey did not feel it necessary to include policies on gypsy provision. It was emphasised that it was important to include consideration of gypsy needs at an early stage in drawing up structure and development plans and the detailed policies should be provided. Compliance with this guidance was essential in fulfilling the Government’s objective that gypsies should seek to provide their own accommodation, applying for planning permission like everyone else. It was necessary, therefore, that adequate gypsy site provision be made in development plans to facilitate this process. 57. The Advisory Council for the Education of Romany and Other Travellers (ACERT) which carried out research sponsored by the Department of the Environment, Transport and Regions, noted in its report that since 1994 private site provision had increased by 30 caravans per year while the pace of public site provision had declined by 100 caravans, disclosing that the pace of private site provision had not increased sufficiently to counterbalance decreases in public site provision. Noting the increase of gypsies in housing and the increased enforcement powers under the 1994 Act, it questioned, if these trends continued, the extent to which the ethnic, cultural and linguistic identity of Gypsy and Traveller people would be protected. 58. The research looked, inter alia, at 114 refused private site applications, which showed that 97% related to land within the countryside and that 96% were refused on grounds relating to the amenity value (e.g. Green Belt, conservation area locations). Of the 50 gypsy site applicants interviewed, for most acquiring permission for their own land was an important factor in improving the quality of life, gaining independence and providing security. For many, the education of their children was another important reason for private site application. All save one had applied for permission retrospectively. 59. The report stated that the figures for success rates in 624 planning appeals showed that before 1992 the success rate had averaged 35% but had decreased since. Having regard however to the way in which data was recorded, the actual success rate was probably between 35% and 10% as given as the figures in 1992 and 1996 by the gypsy groups and Department of the Environment respectively. Notwithstanding the objectives of planning policy that local authorities make provision for gypsies, most local authorities did not identify any areas of land as suitable for potential development by gypsies and reached planning decisions on the basis of land-use criteria in the particular case. It was therefore not surprising that most gypsies made retrospective applications and that they had little success in identifying land on which local authority would permit development. Granting of permission for private sites remained haphazard and unpredictable. 60. In January 2000, the Department of the Environment, Regions and Transport survey on caravans England disclosed that of 13,134 caravans counted, 6,118 were accommodated on local authority pitches, 4,500 on privately owned sites and 2,516 on unauthorised sites. Of the latter, 684 gypsy caravans were being tolerated on land owned by non-gypsies (mainly local authority land) and 299 gypsy caravans tolerated on land owned by gypsies themselves. On these figures, about 1,500 caravans were therefore on unauthorised and untolerated sites while over 80% of caravans were stationed on authorised sites. 61. Local authority duties to the homeless were contained in Part VII of the Housing Act 1996, which came fully into force on 20 January 1997. Where the local housing authority was satisfied that an applicant was homeless, eligible for assistance, had a priority need (e.g. the applicant was a person with whom dependant children resided or was vulnerable due to old age, physical disability etc), and did not become homeless intentionally, the authority was required, if it did not refer the application to another housing authority, to secure that accommodation was available for occupation by the applicant for a minimum period of two years. Where an applicant was homeless, eligible for assistance and not homeless intentionally, but was not a priority case, the local housing authority was required to provide the applicant with advice and such assistance as it considered appropriate in the circumstances in any attempt he might make to secure that accommodation became available for his occupation. 62. This Convention, opened for signature on 1 February 1995, provides inter alia: “Article 1 The protection of national minorities and of the rights and freedoms of persons belonging to those minorities forms an integral part of the international protection of human rights, and as such falls within the scope of international co-operation. Article 4 1. The Parties undertake to guarantee to persons belonging to national minorities the right of equality before the law and of equal protection of the law. In this respect, any discrimination based on belonging to a national minority shall be prohibited. 2. The parties undertake to adopt, where necessary, adequate measures in order to promote, in all areas of economic, social, political and cultural life, full and effective equality between persons belonging to a national minority and those belonging to the majority; In this respect, they shall take due account of the specific conditions of the persons belonging to national minorities. 3. The measures adopted in accordance with paragraph 2 shall not be considered to be an act of discrimination. Article 5 1. The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage. 2. Without prejudice to measures taken in pursuance of their general integration policy, the Parties shall refrain from policies or practices aimed at assimilation of persons belonging to national minorities against their will and shall protect these persons from any action aimed at such assimilation.” 63. The Convention entered into force on 1 February 1998. The United Kingdom signed the Convention on the date it opened for signature and ratified it on 15 January 1998. It entered into force for the United Kingdom on 1 May 1998. By 9 February 2000, it had been signed by 37 of the Council of Europe’s 41 member states and ratified by 28. 64. The Convention did not contain any definition of “national minority”. However the United Kingdom in its Report of July 1999 to the Advisory Committee concerned with the Convention accepted that gypsies are within the definition. 65. Recommendation 1203(1993) of the Parliamentary Assembly on Gypsies in Europe included the recognition that gypsies, as one of the very few non-territorial minorities in Europe, “need special protection”. In its general observations, the Assembly stated inter alia: “6. Respect for the rights of Gypsies, individual, fundamental and human rights and their rights as a minority, is essential to improve their situation. 7. Guarantees for equal rights, equal chances, equal treatment and measures to improve their situation will make a revival of Gypsy language and culture possible, thus enriching the European cultural diversity.” Its recommendations included: “xiv. member states should alter national legislation and regulations which discriminate directly or indirectly against Gypsies; … xviii. further programmes should be set up in the member states to improve the housing situation, education… of those Gypsies who are living in less favourable circumstances. …” 66. In 1998, the European Commission against Racism and Intolerance issued General Policy Recommendation No. 3: Combating Racism and Intolerance against Roma/Gypsies. Its recommendations included: “… to ensure that discrimination as such, as well as discriminatory practices, are combated through adequate legislation and to introduce into civil law specific provisions to this end, particularly in the fields of … housing and education. … … to ensure that the questions relating to ‘travelling’ within a country, in particular, regulations concerning residence and town planning, are solved in a way which does not hinder the life of the persons concerned; …” 67. On 21 April 1994, the European Parliament passed a Resolution on the situation of Gypsies in the Community, calling on the governments of member states “to introduce legal, administrative and social measures to improve the social situation of Gypsies and Travelling People in Europe”; and recommending that “the Commission, the Council and the governments of Member States should do everything in their power to assist in the economic, social and political integration of Gypsies, with the objective of eliminating the deprivation and poverty in which the great majority of Europe’s Gypsy population still lives at the present time”. 68. Protection of minorities has become one of the preconditions for accession to the European Union. In November 1999, the European Union adopted “Guiding Principles” for improving the situation of Roma in candidate countries, based expressly on the recommendations of the Council of Europe’s Specialist Group of Roma/Gypsies and the OSCE High Commissioner on National Minorities’ recommendations. 69. The situation of Roma and Sinti has become a standard item on the Human Dimension section of the agenda of OSCE Review Conferences. Two structural developments – the Office of Democratic Institutions and Human Rights (ODIHR) and the appointment of a High Commissioner for National Minorities – also concerned protection of Roma and Sinti as minorities. 70. On 7 April 2000, the High Commissioner’s Report on the Situation of Roma and Sinti in the OSCE Area was published. Part IV of the Report dealt with the living conditions of Roma, noting that while nomadism had been central to Romani history and culture a majority of Roma were now sedentary (one estimation gave 20% as nomadic, 20% as semi-nomadic, moving seasonally, while 60% were sedentary). This was particularly true of Central and Eastern Europe, where there had been in the past policies of forced sedentarization: “It must be emphasised that whether an individual is nomadic, semi-nomadic or sedentary should, like other aspects of his or her ethnic identity, be solely a matter of personal choice. The policies of some OSCE participating States have at times breached this principle, either by making a determination of a group’s fundamental lifestyle that is inconsistent with its members’ choices or by making it virtually impossible for individuals to pursue the lifestyle that expresses their group identity.” (pp. 98-99) 71. The Report stated that for those Roma who maintained a nomadic or semi-nomadic lifestyle the availability of legal and suitable parking was a paramount need and precondition to the maintenance of their group identity. It observed however that even in those countries that encouraged or advised local authorities to maintain parking sites, the number and size of available sites was insufficient in light of the need: “… The effect is to place nomadic Roma in the position of breaking the law – in some countries, committing a crime – if they park in an unauthorized location, even though authorized sites may not be available.” (pp. 108-109) 72. The Report dealt specifically with the situation of Gypsies in the United Kingdom (pp. 109-114). It found: “Under current law, Gypsies have three options for lawful camping: parking on public caravan sites – which the Government acknowledges to be insufficient; parking on occupied land with the consent of the occupier; and parking on property owned by the campers themselves. The British Government has issued guidance to local authorities aimed at encouraging the last approach. In practice, however, and notwithstanding official recognition of their special situation and needs, many Gypsies have encountered formidable obstacles to obtaining the requisite permission to park their caravans on their own property …” (pp. 112-113). 73. Concerning the planning regime which requires planning permission for the development of land disclosed by the stationing caravans, it stated: “… This scheme allows wide play for the exercise of discretion – and that discretion has repeatedly been exercised to the detriment of Gypsies. A 1986 report by the Department of the Environment described the prospects of applying for planning permission for a Gypsy site as ‘a daunting one laced with many opportunities for failure’. In 1991, the last years in which the success of application rates was evaluated, it was ascertained that 90 per cent of applications for planning permission by Gypsies were denied. In contrast, 80 per cent of all planning applications were granted during the same period. It is to be noted that, as a category, Gypsy planning applications are relatively unique insofar as they typically request permission to park caravans in areas or sites which are subject to restriction by local planning authorities. As such, virtually all Gypsy planning applications are highly contentious. Nonetheless, the fact remains that there is inadequate provision or availability of authorized halting sites (private or public), which the high rate of denial of planning permission only exacerbates. Moreover, there are indications that the situation has deteriorated since 1994. … In face of these difficulties , the itinerant lifestyle which has typified the Gypsies is under threat.” (pp. 113-114) 74. The report’s recommendations included the following: “… in view of the extreme insecurity many Roma now experience in respect of housing, governments should endeavour to regularize the legal status of Roma who now live in circumstances of unsettled legality.” (pp. 126 and 162) | 0 |
dev | 001-58110 | ENG | GBR | CHAMBER | 1,997 | CASE OF JOHNSON v. THE UNITED KINGDOM | 3 | Violation of Art. 5-1;No separate issue under Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | John Freeland;N. Valticos | 6. The applicant was born in Leicester, England, in 1947. 7. The applicant was convicted at Leicester Crown Court on 8 August 1984 of causing actual bodily harm to a woman passer-by in a random and unprovoked attack. He punched her in the head and in the abdomen and then walked off. Unbeknownst to the applicant, the woman was three months pregnant. The applicant had previous convictions for unprovoked assaults: in April 1974 he was sentenced to eighteen months’ imprisonment for an assault on his mother; in December 1977 he was sentenced to four years’ imprisonment for an assault in which he had struck a woman passer-by with a housebrick; in July 1981 he was sentenced to eighteen months’ imprisonment for assaulting two girls walking along a city street. He also had convictions for robbery, criminal damage and various driving offences. The maximum sentence which the court could have imposed under section 47 of the Offences against the Person Act 1861 in respect of the current offence was a term of imprisonment of five years. 8. While on remand in Leicester Prison the applicant was diagnosed as suffering from “mental illness”, manifested in delusions of conspiracy and victimisation and an obsession with astral projection. The precise diagnosis was of schizophrenia superimposed on a psychopathic personality. The applicant had a history of alcohol and drug abuse. He had never previously been diagnosed as mentally ill within the meaning of the Mental Health Act 1983 although, when on remand on a previous charge of actual bodily harm, he had been assessed for psychiatric treatment but had been found to be unsuitable. 9. The applicant’s diagnosis (see paragraph 8 above) was confirmed by two psychiatrists. The Crown Court accordingly imposed a hospital order on him under section 37 of the 1983 Act. He was also made subject to a restriction order without limit in time under section 41 of the same Act, the court being satisfied that this order was necessary for the protection of the public from serious harm. 10. On 15 August 1984 the applicant was admitted to Rampton Hospital, a maximum security psychiatric institution. Between the date of his admission and up to 2 November 1987 he remained under the supervision of Dr J. McConnell, the responsible medical officer (“RMO”). Dr I. Wilson acted as his RMO from 3 November 1987 until the date of his final discharge. 11. When the applicant was admitted to Rampton Hospital Dr McConnell recorded that he was suffering from schizophrenia superimposed on a psychopathic personality. Soon after his admission the applicant was administered antipsychotic drugs, and it would appear that he responded well to treatment to the extent that by 29 May 1985 he had developed full insight into his mental illness. The applicant ceased taking medication in March 1988 (see paragraph 33 below). 12. The applicant’s detention was reviewed on several occasions between December 1986 and January 1993 by a Mental Health Review Tribunal (“the Tribunal”) pursuant to the provisions of section 70 of the 1983 Act. 13. The first review was held in December 1986. The Tribunal had before it the psychiatric report of Dr McConnell, the applicant’s RMO at the time, as well as a similar report drawn up by Dr J.D. Earp, a consultant psychiatrist, at the request of the applicant’s solicitor. 14. While noting the applicant’s great progress since the date of his admission to Rampton Hospital (see paragraph 11 above), Dr McConnell stated that he was still suffering from schizophrenia, superimposed on a psychopathic personality. He was also reported to be devious in his attitude to the staff at the hospital. Dr McConnell concluded that the applicant continued to require treatment and was unfit to be discharged. Dr Earp expressed the opinion that the applicant showed ample signs of psychopathic disorder with superimposed mental illness and that the mental illness had the characteristics of a paranoid schizophrenic condition. He did not recommend any change in the applicant’s current status. 15. In its decision of 17 December 1986, the Tribunal stated that it was satisfied that the applicant was suffering from mental illness or a form of that disorder of a nature or degree which made it appropriate for him to be liable to be detained and that it was necessary for his health or safety and for the protection of other persons that he should receive medical treatment in Rampton Hospital. The applicant continued therefore to be detained after that date. 16. The applicant’s case came up for review on 14 August 1987 and again on 10 February 1988. On both occasions the Tribunal decided to make no direction for his discharge or reclassification of his illness, believing that it was necessary for his own health and safety as well as for the protection of other persons in the community at large that he continue to receive medical treatment for his condition in hospital. 17. A fourth review took place in June 1989. The Tribunal had before it a psychiatric report drawn up on 5 October 1988 by Dr Wilson who had taken over from Dr McConnell as the applicant’s RMO following her retirement; an assessment of the applicant’s condition prepared on 29 March 1989 by Dr D. Cameron, a consultant psychiatrist, based on, inter alia, an interview with the applicant on 16 March 1989; and a further assessment dated 5 May 1989 drawn up by Dr Earp, who had interviewed the applicant on 20 April 1989. Dr Wilson and Dr Earp both concluded that the applicant was free of symptoms of mental illness. Dr Earp’s view was that the applicant was no longer detainable under the 1983 Act. While recommending a discharge, Dr Earp noted that arrangements were being made by Dr Cameron (see below) to secure accommodation for the applicant in a hostel for persons suffering from drink-related problems. Dr Wilson for his part felt that the applicant still needed to undergo a period of rehabilitation and was not fit for discharge at that time. In his report Dr Cameron concluded that the applicant was best described as “a schizoid personality with a history of explosive anti-social behaviour induced by intoxication” and that he could benefit from a stay in a hostel for people with drink-related problems following his discharge from Rampton Hospital. Dr Cameron offered to facilitate the applicant’s transfer to a hostel which he had in mind and to act as his psychiatric supervisor. 18. The Tribunal ruled on 15 June 1989 as follows: “The Tribunal accepts the medical evidence that the patient is not now suffering from mental illness. The episode of mental illness from which he formerly suffered has come to an end. He is not now in receipt of any psychotropic medication.” However the Tribunal continued: “The [applicant] had an unrealistic opinion of his ability to live on his own in the community after nearly five years in Rampton Hospital and required rehabilitation under medical supervision and that such rehabilitation (and its associated support) can be provided only in a hostel environment. Further, the Tribunal is of the opinion that the recurrence of mental illness requiring recall to hospital cannot be excluded until after successful rehabilitation of that nature.” 19. On that basis, the Tribunal ordered the applicant’s conditional discharge, the conditions being that the applicant be subject to the psychiatric supervision of Dr Cameron and to the social-worker supervision of a nominated psychiatric social worker, and reside in a supervised hostel approved by Dr Cameron and the nominated psychiatric social worker. The applicant’s discharge was to be deferred until arrangements could be made for suitable accommodation. 20. Following the 1989 review, considerable efforts were made to secure hostel accommodation for the applicant, but to no great avail. In the report of a senior social worker dated 6 October 1989, it was noted that no progress had been made on account of, inter alia, the limited number of hostel placements in the area catering for the applicant’s specific needs. The applicant himself also seemed intent on portraying himself in a negative light when visiting hostels, with the result that he confirmed their initial anxieties about accepting him. 21. The nominated psychiatric social worker (see paragraph 19 above), Mr D. Patterson, contacted a number of hostels. In his report of 4 April 1990, Mr Patterson described how his search for hostel accommodation for the applicant had been “a time-consuming, lengthy and frustrating” experience both for himself and the applicant. One hostel visited had rejected the applicant almost immediately. Another rejected him without seeing him and the housing associations running hostels in conjunction with the Probation Service also felt unable to offer him accommodation for some time on account of staff composition. It would appear that all potential hostels expressed concern about the applicant’s drinking problem and his previous history of assaults on women which might present a threat to female residents and members of staff. Mr Patterson indicated that the applicant during this time had not always shown a realistic appreciation of the lifestyle needed to achieve a successful rehabilitation. However, one hostel, Ashcroft, did express interest in accepting the applicant on condition that he agree to and successfully complete an eight-week trial period in an open ward in a local hospital. Mr Patterson believed that Ashcroft was the only viable option, although the applicant remained rather ambivalent about exploring this possibility. 22. On 19 January 1990 the applicant applied to the Tribunal to have his detention reviewed, hoping for an absolute discharge. The Tribunal met in May 1990 and heard the applicant in person. It had before it Mr Patterson’s report on attempts to find suitable accommodation for the applicant (see paragraph 21 above), as well as his views on the applicant’s suitability for absolute discharge. Mr Patterson had concluded that he would be fearful of granting an absolute discharge since the applicant, if left to his own devices and without suitable support, could quickly find himself in trouble again. He was in favour of the applicant spending an eight-week trial period in a local hospital, which would provide the basis for acceptance by the Ashcroft hostel. 23. The Tribunal also considered a report prepared by Dr Wilson, dated 12 February 1990. Dr Wilson confirmed in this report that the applicant was no longer mentally ill. He stated that the terms of the earlier conditional discharge were still being pursued but that it had not yet been possible to find suitable accommodation. He recommended that the applicant be discharged as soon as appropriate arrangements could be made. 24. The Tribunal noted in its ruling of 9 May 1990 that the necessary arrangements for supervised accommodation had not been easy to make “probably because the patient is himself not easy to please”. The Tribunal accepted the reasoning of the 1989 Tribunal (see paragraph 18 above). Although acknowledging that the applicant’s clear preference was for an absolute discharge, the Tribunal considered that it was in the interests of the applicant and the public that “he remain liable to hospital recall and to have the support that is assured by a discharge that is conditional”. Accordingly, the Tribunal once again directed the applicant’s conditional discharge but deferred the discharge until suitable arrangements had been made for supervised accommodation. 25. On 10 September 1990 the applicant commenced trial leave at another hospital, Carlton Hayes, which was less secure than Rampton Hospital (see paragraph 22 above). He was allowed increasing freedom in the form of time away from the hospital. On 9 October 1990, after drinking in a local pub, he returned to the hospital late at night and assaulted a patient whom he alleged had provoked him. Thereafter the placement began to break down completely. In a report dated 12 December 1990, Dr Cameron, the supervising psychiatrist, noted that the applicant had terrorised the nursing staff and had began to reject the rehabilitation plans which had been foreseen for him. He was returned to Rampton Hospital on 22 October 1990. Back in Rampton Hospital, the applicant was given the choice to return to the pre-discharge unit there, where he could pursue other pre-discharge possibilities, or to go to another ward containing more long-term patients. The applicant chose the latter option. 26. A sixth review was carried out in April 1991. The Tribunal considered a progress report drawn up by Dr Wilson on 4 January 1991, the report prepared in December 1990 by Dr Cameron (see paragraph 25 above) and a report of Mr Patterson dated 22 January 1991. 27. Dr Wilson noted in his report the failure of the trial-leave period (see paragraph 25 above) and the difficulty in rekindling the applicant’s motivation. Dr Wilson concluded: “[the applicant] is not mentally ill and does not require to remain in Rampton Hospital. Since June 1989 attempts to obtain his conditional discharge have been foiled by his inability to cooperate with the arrangements made and it is now difficult to envisage any conditions of his discharge that would be acceptable to [the applicant].” 28. Dr Cameron’s report of 12 December 1990 expressed pessimism about the applicant’s future in the light of the failure of the trial-leave period. He indicated that the applicant suffered from an explosive disorder of personality which meant that “when he is not in the middle of an explosion he is not in the formal sense mentally ill”. Dr Cameron had no doubt that intoxication had played some part in the breakdown of the rehabilitation process and was convinced that the applicant’s intoxicated explosions would likely recur whenever he was granted freedom into the community with access to intoxicants. Dr Cameron also considered that any further attempt at rehabilitation through general psychiatric routes would be inappropriate and for this reason was reluctant to continue as his psychiatric supervisor. 29. In his report Mr Patterson noted that the applicant’s failure to complete successfully the trial-leave period ruled out any prospect of his acceptance by the Ashcroft hostel. 30. On 9 April 1991 the Tribunal found that the applicant was not suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which made it appropriate for him to be detained in hospital for medical treatment. However, the Tribunal was satisfied that it was appropriate for the applicant to remain liable to be recalled to hospital for further treatment. The reasons given were that the applicant did not accept sufficient responsibility for his own behaviour to be able to cope with the pressures of life in the community without a considerable degree of supervision and support. Hence the applicant was again ordered to be conditionally discharged, such discharge to be deferred until alternative supervised accommodation could be found. 31. The applicant’s final review took place in January 1993. He was assessed prior to this review by Dr Wilson, who indicated that the applicant had no symptoms of mental illness and, provided that the topic of rehabilitation was avoided, he was constantly pleasant, friendly and cooperative. Dr Wilson concluded: “There is no basis for [the applicant] continuing to be classified as suffering from mental illness and with the benefit of hindsight it appears unlikely that he ever experienced more than a drug-induced psychosis ... He does not require to remain in Rampton Hospital but it is difficult to envisage any conditions of his discharge that would be acceptable to him and his current application for an absolute discharge must now be considered on its merits.” 32. On 12 January 1993 the Tribunal ordered the applicant’s absolute discharge on the basis that the applicant “is not now suffering from any form of mental disorder and that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment”. 33. In reaching this conclusion the Tribunal had regard to Dr Wilson’s oral evidence. It noted from his evidence that the applicant had not suffered from mental illness since 1987 and was not suffering from any other form of mental disorder. Medication had been withdrawn in March 1988. The applicant had shown consideration and kindness to other patients in his ward and he was “often acting more like a member of staff than a patient”. Furthermore, the Tribunal noted that Dr Wilson considered that the index offence was not to be regarded as a result of mental illness but of a likely combination of drugs and alcohol. The applicant had suffered a psychotic episode whilst on remand which Dr Wilson attributed to the stress of prison and the withdrawal of drugs and alcohol. According to Dr Wilson there was no evidence that this illness was likely to recur and there was no medical basis to believe that the applicant would be dangerous if released. While having regard to the view of the Secretary of State that only a conditional discharge was appropriate at that stage, the Tribunal concluded that it was proper and in the interests of justice to grant the applicant an absolute discharge. 34. The applicant was released from Rampton Hospital on 21 January 1993. Since then, he has not relapsed into mental illness. At the hearing the Court was informed that the applicant had recently been given a conditional discharge following his conviction of a minor public-order offence arising out of an altercation with a neighbour. He was also facing a charge of cultivating cannabis. 35. Section 1 (2) of the Mental Health Act 1983 (“the 1983 Act”) defines “mental disorder” as mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind. A personality disorder would not, of itself, justify detention unless it came within the definition of psychopathic disorder, namely “a persistent disorder or disability of mind (whether or not including significant impairment of intelligence) which results in abnormally aggressive behaviour or seriously irresponsible conduct on the part of the person concerned”. Under section 1 (3) of the Act, dependence on alcohol or drugs is not to be construed as a form of mental disorder. 36. Section 37 of the 1983 Act empowers a court to order a person, on being convicted of a criminal offence punishable with imprisonment, to be admitted to and detained in a specified hospital (“a hospital order”). 37. The court can only make a hospital order if it is satisfied on the written or oral evidence of two registered medical practitioners that the offender is suffering from mental disorder (see paragraph 35 above) and that “the mental disorder is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment, and in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration in his condition” (section 37 (2) (a) (i)) and “the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of a [hospital order]” (section 37 (2) (b) (ii)). Under section 37 (7) a hospital order must specify the form or forms of mental disorder from which the offender is suffering, as confirmed by the evidence of two practitioners. 38. Section 41 of the 1983 Act empowers a court to make a restriction order (with or without limit of time) at the same time as it makes a hospital order. The restriction order gives the Secretary of State, inter alia, increased powers over the movement of a patient and may be made if it appears to the court having regard to the nature of the offence, the antecedents of the offender and the risk of his committing further offences if still at large, that it is necessary for the protection of the public from serious harm to make the order. A restriction order also confers a power to recall or conditionally discharge a patient at any time and restricts the powers of the Mental Health Review Tribunal (see paragraph 39 below) to order release more narrowly than in the case of an ordinary mental patient. 39. Under section 70 of the 1983 Act, a person who is subject to a hospital order and restriction order (“a restricted patient”), and who is detained in hospital, may apply to the Tribunal after six months’ detention for a review of his detention. After twelve months’ detention such applications may be made annually. The Secretary of State may at any time refer the case of a restricted patient to the Tribunal (section 71 of the 1983 Act). Tribunals are made up of a legally qualified member who sits as the chairperson, a medically qualified member who interviews the patient and a lay member. 40. Under section 73 (1) and (2) of the 1983 Act, read in conjunction with section 72 (1), where an application is made to the Tribunal by a restricted patient or where his case is referred to the Tribunal by the Secretary of State, the Tribunal is required to direct the absolute discharge of the patient if it is satisfied (a) (i) that the patient is not then suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment or from any of those forms of disorder of a nature or degree which makes it appropriate for the patient to be liable to be detained in a hospital for medical treatment; or (ii) that it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment (section 73 (1) of the 1983 Act); and (b) that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment (section 73 (2) of the 1983 Act). 41. Pursuant to section 73 (3), where a patient is absolutely discharged he ceases to be liable to be detained by virtue of the hospital order and the restriction order ceases to have effect. 42. Under section 73 (2) of the 1983 Act, where the Tribunal is satisfied as to either of the matters referred to at (a) in paragraph 40 above but not as to the matter referred at (b) in paragraph 40 above, it is required to direct the conditional discharge of the patient. Lady Justice Butler-Ross, giving judgment in the case of R. v. Merseyside Mental Health Review Tribunal, ex parte K ([1990] 1 All England Law Reports, Court of Appeal), explained the nature of this power as follows: “Section 73 gives to the tribunal the power to impose a conditional discharge and retain residual control over patients not then suffering from mental disorder or not to a degree requiring continued detention in hospital. This would appear to be a provision designed both for the support of the patient in the community and the protection of the public, and it is an important discretionary power vested in an independent tribunal, one not lightly to be set aside in the absence of clear words.”(at pp. 699–700) 43. By virtue of section 73 (4) of the 1983 Act, a patient who has been conditionally discharged may be recalled by the Secretary of State and must comply with the conditions attached to his discharge. In contrast to absolute discharge, a conditionally discharged patient does not cease to be liable to be detained by virtue of the relevant hospital order. 44. Under section 73 (7) of the 1983 Act, a tribunal can defer a direction for the conditional discharge of a restricted patient until such arrangements as appear to be necessary for the purpose of discharge have been made to their satisfaction. However, in the case of restricted patients, whose discharge has been accordingly deferred, the Tribunal does not have the power to direct the discharge if the specified conditions are not fulfilled or to adjourn its consideration of the case to await further developments or to recommend that the patient be granted leave of absence or to specify a time within which the conditions are to be complied with and to reconvene the proceedings failing such compliance with the time fixed. However, once the case comes back before the Tribunal on an application by the patient (which at the earliest will be the following year) or on a reference from the Secretary of State (which may be at any time) the Tribunal must consider the case afresh. In Secretary of State for the Home Department v. Oxford Regional Mental Health Review Tribunal and another ([1987] 3 All England Law Reports, House of Lords), Lord Bridge noted that there was no basis in the 1983 Act or in the rules of the Mental Health Review Tribunal to defer a conditional discharge until a fixed date. He stated: “...it is impossible for a tribunal in making a deferred direction for conditional discharge to predict how long it will take to make the necessary arrangements. The decision should simply indicate that the direction is deferred until the necessary arrangements have been made to the satisfaction of the tribunal and specify what arrangements are required, which can normally be done, no doubt, simply by reference to the conditions to be imposed. Whoever is responsible for making the arrangements should then proceed with all reasonable expedition to do so and should bring the matter to the attention of the tribunal again as soon as practicable after it is thought that satisfactory arrangements have been made ...”(at p. 13) 45. The Secretary of State may also order a patient’s conditional or absolute discharge (section 42 of the 1983 Act). | 1 |
dev | 001-84608 | ENG | AZE | ADMISSIBILITY | 2,008 | RAHIMOV v. AZERBAIJAN | 4 | Inadmissible | Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens | The applicant, Mr Ogtay Rahimov, is an Azerbaijani national who was born in 1951 and lives in Baku. He was represented before the Court by Mrs N. Huseynova, a lawyer practising in Baku. 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. The applicant was the chairman of the Metanet Construction Cooperative (“the Cooperative”). In 1993 the Cooperative concluded a construction contract with the Education Department of the Nasimi District of Baku (“the Nasimi Education Department”) according to which the Cooperative agreed to repair the heating system in one of the district’s public schools. In 1997 a similar contract was concluded with the Education Department of the Narimanov District of Baku (“the Narimanov Education Department”). Although the Cooperative had completed its contract obligations, it did not receive any payments under either contract. The Cooperative, represented by the applicant, lodged an action against the Nasimi Education Department. By a judgment of 27 January 1998 the Economic Court ordered the Nasimi Education Department to pay the Cooperative 34,492,634 Azerbaijani manats (AZM). Subsequently, on an unspecified date the Economic Court revised its judgment and reduced the awarded amount to AZM 18,321,250. No appeal was filed against the judgment and it entered into force. In January 1998 the Economic Court issued a writ of execution of the judgment. Following a number of complaints by the applicant to the enforcement authorities, it appears that on an unspecified date in 2001 the judgment was partially executed and AZM 5,000,000 of the judgment amount paid to the Cooperative. However, despite the applicant’s continuous complaints to the Nasimi District Department of Judicial Observers and Enforcement Officers (Nəsimi rayon Məhkəmə Nəzarətçiləri və Məhkəmə İcraçıları şöbəsi; “the Nasimi Department of Enforcement Officers”), the remainder of the judgment award, amounting to AZM 13,321,250, was not paid. The Cooperative lodged a new action against the Nasimi Education Department and Nasimi District Finance Department complaining about non-execution of the judgment. On 29 January 2004 the Nasimi District Court ordered the defendants to comply with the judgment of 27 January 1998. On 29 April 2004 the Court of Appeal quashed this decision, finding that the complaints concerning non-enforcement of final judgments should be directed against the Nasimi Department of Enforcement Officers and not the original defendant. The Cooperative lodged another action asking the court for “indexation” of the judgment amount due to inflation. On 19 May 2004 the Local Economic Court No. 1 granted this request. It found that, taking into account the inflation, the remainder of the amount to be paid by the Nasimi Education Department pursuant to the judgment of 27 January 1998 constituted AZM 17,317,625. The Cooperative, again represented by the applicant, lodged a separate action against the Narimanov Education Department. By a judgment of 5 January 2000 the Economic Court ordered the Narimanov Education Department to pay the Cooperative AZM 135,505,731. Although the applicant sent numerous inquiries to the Narimanov District Department of Judicial Observers and Enforcement Officers within the next two years, the judgment was not enforced. The Cooperative lodged a new action against the Narimanov Education Department and Narimanov District Finance Department complaining about non-execution of the judgment. On 26 March 2004 the Narimanov District Court ordered the defendants to comply with the judgment of 5 January 2000. On 17 August 2004 the Court of Appeal upheld this decision. The Cooperative lodged another action asking the court for “indexation” of the judgment award due to inflation. On 19 May 2004 the Local Economic Court No. 1 granted this request. It found that, taking into account the inflation, the amount to be paid by the Narimanov Education Department pursuant to the judgment of 5 January 2000 constituted AZM 149,056,304. According to the Government the delayed execution of the judgments of 27 January 1998 and 5 January 2000 was due to the fact that the Cooperative’s bank account was closed since 1998 for unspecified reasons. On 19 April 2007 the outstanding amounts awarded by both judgments were transferred to an alternative bank account as directed by the applicant. By a letter of 19 April 2007 addressed to the Nasimi Department of Enforcement Officers, the applicant acknowledged the receipt of the outstanding amounts and noted that he had no further complaints before the domestic authorities concerning the execution of the judgments of 27 January 1998 and 5 January 2000. In accordance with the Civil Code of 1 September 2000 a cooperative is a type of commercial company which is a voluntary union of individuals or legal entities established for the purpose of satisfying material and other needs of its members through consolidation of their material contributions (Article 109.1). A cooperative can be established by at least five members (Article 109-1.1). A “full” member, in essence, enjoys rights similar to those of founders or shareholders of other types of legal entities, including rights to participate in the management and to receive a share of the cooperative’s profits (Articles 109.2 and 109.4 in fine). An “associative” member’s rights to participate in the management are limited (Article 109.3). The cooperative’s profits are distributed to the members in accordance with their shares, as well as the extent of their participation in the function of the cooperative, by way of contributing personal labour or otherwise (Article 110). The supreme management body of a cooperative is the general meeting of members. Each member has one vote at the general meeting regardless of the size of his or her contribution to the cooperative’s fund (Articles 111.1 and 111.5). The executive bodies of a cooperative are a management board and/or a chairman. A cooperative’s chairman may be elected only from among the cooperative’s members. The chairman is elected for a specified term at the general meeting of members and has a right to represent the cooperative (Articles 111.1 and 111.10). Article 69.2 of the Code of Civil Procedure of 1 September 2000 provides that legal entities can be represented before courts by their bodies, acting within the scope of powers conferred on them by law, regulations or articles of incorporation of the legal entity, or by representatives acting on the basis of a power of attorney. | 0 |
dev | 001-82005 | ENG | UKR | ADMISSIBILITY | 2,007 | BORDOKINA v. UKRAINE | 4 | Inadmissible | Peer Lorenzen | The applicant, Ms Lyubov Ivanovna Bordokina, is a Ukrainian national who lives in Molodogvardiysk. The Ukrainian Government (“the Government”) were represented by Mr Y. Zaytsev, their Agent, and Mrs I. Shevchuk, Head of the Office of the Government Agent before the European Court of Human Rights. In July 1994 the applicant deposited 1,000,000 karbovantsi (around 30 ECU in the Ukrainian transitional currency) with the private commercial bank “Privatbank” (the “Bank”; Комерційний банк “Приватбанк”) for a four-year term at an annual interest rate of 500%. At the end of the contract, the Bank paid the applicant 182 Ukrainian hryvnyas (about 0.70 ECU), referring to the introduction of the new hryvnya currency and a revision of interest rates as allowed by the contract between the parties. On 30 September 1998 the applicant instituted civil proceedings in the Leninsky District Court of Lugansk (the “District Court”; Ленінський районний суд м. Луганська) seeking higher payment and damages. Subsequently, she amended her claims on one occasion. On 18 November 1998 the District Court ordered a financial expert assessment, which was received on 16 February 1999. On 18 March 1999 the District Court held a hearing and dismissed the applicant’s claims, finding that the Bank had acted in compliance with applicable law and the contract between the parties. The judgment became final. Unsatisfied with the outcome of her litigation, the applicant requested the authorities to re-open the proceedings by way of lodging a supervisory protest. On 19 April 2000 the Presidium of the Lugansk Regional Court (the “Regional Court;” Луганський обласний суд) quashed the judgment of 18 March 1999 following a protest introduced by its President and remitted the case for a fresh consideration to the District Court. Between July and December 2000 the District Court held three hearings. On 14 December 2000 the District Court allowed the applicant’s amended claims, finding that the Bank had breached the contract. The Bank appealed in cassation. On 22 January 2001 the Regional Court upheld the judgment of 14 December 2000 and it became final. The Bank requested to re-open the proceedings by way of supervisory review. On 28 February 2001 the Presidium of the Regional Court quashed the rulings of 14 December 2000 and 22 January 2001 following a protest lodged by its President and remitted the case to the District Court for a fresh consideration. Between May and July 2001 the District Court scheduled three hearings, one of them being adjourned on account of the defendant’s absence. On 3 July 2001 the District Court dismissed the applicant’s claims. The applicant appealed. On 3 September 2001 the Regional Court upheld this judgment on appeal. The applicant appealed in cassation. On 23 April 2003 the Supreme Court dismissed the applicant’s appeal in cassation. | 0 |
dev | 001-101888 | ENG | NLD | ADMISSIBILITY | 2,010 | JOESOEBOV v. THE NETHERLANDS | 4 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall | 1. The applicant, Mr Ibrahim Joesoebov, was born in Georgia in 1972 and is currently living in the Netherlands. At the time of the introduction of the application he stated that he was an Azerbaijani national. He was represented before the Court by Mr M.A. Collet, a lawyer practising in Rotterdam. The Dutch Government (“the Government”) were represented by their Deputy Agent, Ms L. Egmond, of the Netherlands Ministry of Foreign Affairs. 2. The facts of the case, as submitted by the parties and some of which are in dispute, may be summarised as follows. 3. On 17 June 2000, the applicant reported to the Netherlands authorities for the purposes of seeking asylum. During his interviews with the Netherlands immigration authorities in the course of which he objected to assistance by an Azeri-speaking interpreter and chose to be assisted by a Russianspeaking interpreter, he stated that he was an Azerbaijani national, that he was born in Georgia – then a part of the former Soviet Union – and that he was of Azerbaijani ethnic origin. The applicant’s parents and three adult siblings, who were all born in Georgia, were living in Baku. 4. On 5 July 2000, the applicant filed a formal asylum request and the immigration authorities conducted a first interview with him on the same day. On 21 August 2000 the applicant filed a written account of his reasons for seeking asylum. He submitted an addition to this written account on 6 October 2000. The immigration authorities conducted a second interview with the applicant on 11 October 2000. By letter of 24 October 2000, the applicant availed himself of the possibility to submit corrections and additions to the report of this second interview. 5. The applicant gave the following account in support of his asylum application. He had lived in Georgia until 1989 and in Russia from 1989 until April 1993. He had received military training from 1990 to 1993 in Russia. In May 1993, following the upheaval in Russia, the applicant went to live in Baku, where he served in the Ministry of National Security of the Republic of Azerbaijan in an anti-terrorism unit, which also specialised in combating organised crime. The applicant participated in a number of operations. 6. In June 1993 the applicant was involved in an incident in the context of a professional assignment which resulted in him being imprisoned. He was released after two weeks following a changeover in power. 7. The applicant resumed his work for the Ministry of National Security, in which he was, amongst other things, involved in arresting people and handing these over to the Ministry’s investigation department, and in an undercover anti-corruption operation. He left the Ministry in October 1999. 8. Over the years, the applicant had become increasingly disillusioned and frustrated with the political system and the way the department where he worked was being used to suppress democracy. That department was supposed to battle terrorism and foreign interventions, but in practice it was used to arrest innocent civilians who stood in the way of a corrupt Government. He twice tried to resign but this was not accepted. In May 1999 his boss told him people could only leave the service if they retired or died. After this, his life became unbearable. His colleagues no longer trusted him. He had never held his own passport. The Ministry of National Security had held – but never given to him – a service passport for him which had been used by others on his behalf during a short stay in Turkey in 1994. He was very scared as there was nothing more powerful than the Ministry of National Security so he could turn to no-one for protection. He feared the Ministry was looking for a reason to accuse him of something. 9. The applicant left Azerbaijan on 6 October 1999, because on that day he was informed by a friend employed by the Ministry of Foreign Affairs that he was wanted in connection with a failed attack on a rebel leader in 1993. The applicant claimed that he was being searched for by the authorities of Azerbaijan and also that he risked a lengthy term of imprisonment because he had left the Ministry of National Security and Azerbaijan without permission and was thus considered to be a deserter. 10. On 29 November 2000, the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicant’s asylum request and, after an ex officio examination, further held that there were no reasons to grant the applicant a residence permit for compelling reasons of a humanitarian nature. 11. On 30 January 2001 the applicant lodged an objection (bezwaar) against this decision. He filed additional grounds for his objection and further documents in substantiation of his account by letters 9 and 28 February 2001, 20 March 2001, 3 and 11 April 2001, 17 May 2001, 20 July 2001 and 19 April 2002. 12. On 23 April 2001, the applicant requested the Regional Court (rechtbank) of The Hague to order a stay of expulsion by way of a provisional measure (voorlopige voorziening) pending the proceedings on his objection. This request was granted on 29 May 2002 by the provisional measures judge (voorzieningenrechter) of the Regional Court of The Hague, sitting in Utrecht, who ordered that the applicant should not be expelled from the Netherlands until four weeks after the determination of his objection. 13. By letter of 26 June 2002 the applicant filed further additional grounds for his objection. On 25 November 2002, he was heard on his objection before an official board of inquiry (ambtelijke commissie). 14. On 2 December 2002 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie), the successor to the Deputy Minister of Justice since 22 July 2002, informed the applicant that his statements gave cause to suspect that Article 1F of the 1951 Geneva Convention relating to the Status of Refugees (“the 1951 Convention”) might be applicable to his case, and that for that reasons his case had been transferred to “Unit 1F”. Unit 1F is a team of specialists within the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst, “IND”) who examine cases in which Article 1F of the Refugee Convention may be applicable. 15. By letter of 4 December 2002, the applicant informed the IND that he considered the decision of 2 December 2002 as unlawful and unjust, and urged a speedy determination of his asylum claim. 16. On 13 January 2003 the applicant submitted translations of a number of documents further to substantiate his account. On 5 June 2003 the immigration authorities conducted an additional interview with the applicant which mainly concerned the nature of his work for the Azerbaijani Ministry of National Security, and he was given the possibility to submit corrections and additions to the report of this interview. By letter of 23 June 2003 the applicant stated he did not wish to do so. 17. On 19 September 2003 the Minister for Immigration and Integration rejected the applicant’s objection and maintained the negative decision of the asylum request by holding Article 1F of the 1951 Convention against the applicant on account of his work for the Azerbaijani Ministry of National Security, which decision was based on the prescribed and so-called “personal and knowing participation” test. In this decision, the Minister further decided not to grant the applicant ex officio a residence title on account of the duration of the still pending proceedings on his asylum request (tijdsverloop in de asielprocedure). The applicant’s objection against the latter aspect of the decision of 19 September 2003 was rejected by the Minister on 18 March 2004. On 23 March 2004 the applicant filed an appeal with the Regional Court of The Hague. 18. The applicant’s appeal against the decision of 19 September 2003 (concerning his asylum request), as supplemented by him on 12 and 21 November 2003, 17 February 2004, 3 and 30 March 2004 and 17 and 27 September 2004, was heard on 8 October 2004 before the Regional Court of The Hague, sitting in Arnhem. 19. In its judgment of 10 November 2004, the Regional Court found that the Minister had correctly held Article 1F of the 1951 Convention applicable to the applicant but quashed the impugned decision for lack of sufficient reasoning in that it did not appear from that decision whether the Minister had examined whether Article 3 of the Convention would lastingly (duurzaam) stand in the way of expulsion and, if so, whether a continuous withholding of a residence permit would not be disproportionate. Accordingly it quashed the decision of 19 September 2003 and ordered the Minister to take a fresh decision on the applicant’s objection. 20. On the same day, the Regional Court rejected in a separate judgment the applicant’s appeal of 23 March 2004. 21. On 14 September 2005, an additional hearing on his objection of 30 January 2001 was conducted with the applicant before an official board of inquiry, including the question whether his expulsion to Azerbaijan would be contrary to Article 3 of the Convention. 22. On 13 February 2006 the applicant was notified in person of the Minister’s intention to declare him an undesirable alien entailing the imposition of an exclusion order, and he was given the opportunity to respond to this. He did so in person on 13 February 2006, as well as by letters of 13 and 24 February 2006. 23. By decision of 10 March 2006, the Minister declared the applicant an undesirable alien and imposed the pertaining exclusion order. The Minister noted that the applicant had been denied asylum in application of Article 1F of the 1951 Convention and that, in its judgment of 10 November 2004, the Regional Court of The Hague had accepted that decision as correct. The Minister held that the application of Article 1F of the Refugee Convention against the applicant stood in the way of his being granted a residence permit since he was to be considered as a danger to public order and that his exclusion from the Netherlands was also in the interest of the Netherlands’ international relations. The Minister lastly found that there were insufficient grounds for assuming that the applicant, if removed to his country of origin, would be exposed to a real and foreseeable risk of being subjected to treatment prohibited by Article 3 of the Convention. 24. In a separate decision also taken on 10 March 2006, the Minister rejected the applicant’s objection of 30 January 2001. She maintained her decision to hold Article 1F of the 1951 Convention against the applicant. As regards Article 3 of the Convention, the Minister did not find it established that the applicant, if returned to his country of origin, would be exposed to a real risk of being subjected to treatment prohibited by the this provision. 25. The Minister noted that the applicant had not submitted any documents in support of his claim that he was searched for by the Azerbaijani authorities for having abandoned his work for the national security agency in 1999. The Minister further noted that the applicant had submitted two documents, issued by the authorities of Azerbaijan, allegedly showing that he was being searched for in Azerbaijan. One document was a protocol, drawn up by the police on 1 May 2002, relating to the opening of a criminal inquiry into the commission of the offence defined in section 256 of the Azerbaijani Criminal Code which concerns “illegal extraction of fish and other water animals”. The other document was a summons dated 29 August 2002, ordering the applicant to hand in on that same day his passport at police station no. 5, failing which he would be held liable under section 181 of the Azerbaijani Criminal Code which concerns “burglary” defined as obtaining through violence property not belonging to the perpetrator. The Minister considered that, apart from the odd and unexplained fact that both documents had been drawn up in 2002 whereas the applicant had already left Azerbaijan in 1999, these documents did not tally with the applicant’s asylum account to the effect that he risked treatment in breach of Article 3 on account of having left his work without permission or for his involvement in the failed attack on the rebel leader in 1993. In so far as the applicant further claimed that he risked such treatment because the Azerbaijani authorities assumed that he was keeping contacts with two of his former superiors who were residing abroad and who were planning to seize power in Azerbaijan, the Minister found that this had remained wholly unsubstantiated and was based on speculations by the applicant. The Minister further rejected as unsubstantiated and not plausible the applicant’s claim that his relatives were encountering problems from the side of the authorities of Azerbaijan in order to exert pressure on the applicant. 26. On 23 March 2006, the applicant filed an objection with the Minister against the decision to impose an exclusion order on him. On the same day, he filed an appeal with the Regional Court of The Hague against the rejection by the Minister of his objection of 30 January 2001. 27. By judgment of 16 May 2006 and after a hearing held on 4 May 2006, the provisional measures judge of the Regional Court of The Hague, sitting in Dordrecht, rejected as unfounded the applicant’s appeal of 23 March 2006 and his pertaining request for an interim measure. The judge noted that, in its ruling of 10 November 2004, the Regional Court had already accepted the Minister’s decision to hold Article 1F of the 1951 Convention against the applicant. The provisional measure judge further accepted the Minister’s finding that the applicant had not demonstrated that Article 3 would lastingly stand in the way of his expulsion. Referring to constant case law of the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State), the provisional measures judge lastly held, in respect of the applicant’s reliance on the right of respect for his private life within the meaning of Article 8 of the Convention, that – given the strict separation under the provisions of the Aliens Act 2000 (Vreemdelingenwet 2000) between an asylum based and a regular residence permit – that arguments based on Article 8 could not be entertained in asylum proceedings but should be made in proceedings on a request for a regular residence permit. 28. In a separate ruling handed down on the same day, the provisional measures judge of the Regional Court also rejected the applicant’s request for a provisional measure (stay of expulsion) for the duration of the proceedings on his objection against the decision to impose an exclusion order on him. 29. On 13 June 2006, the applicant filed an appeal with the Administrative Jurisdiction Division against the judgment of 16 May 2006 in which his appeal of 23 March 2006 had been rejected. On 30 June 2006, the Administrative Jurisdiction Division declared itself not competent to examine this appeal, pursuant to article 120 of the Aliens Act 2000. It noted that the proceedings concerned a decision which had been taken before the entry into force on 1 April 2001 of the Aliens Act 2000, replacing the Aliens Act 1965. Under the latter Act no further appeal lay against a ruling of the Regional Court in asylum proceedings. 30. On 14 April 2008, the applicant was placed in aliens’ detention for removal purposes (vreemdelingenbewaring). In a ruling given on 6 May 2008, in unsuccessful appeal proceedings taken by the applicant concerning his placement in aliens’ detention, the Regional Court of The Hague noted that the Azerbaijani authorities had refused to issue a laissez-passer to the applicant and held that the Netherlands authorities should be given the opportunity to try to obtain the issuance of a laissez-passer from the authorities of Georgia, given the fact that the applicant had been born there. 31. On 27 October 2008, the Minister rejected the applicant’s objection against the decision to impose an exclusion order on him. The applicant’s appeal against this decision, including arguments based on Article 3 of the Convention, was rejected on 4 August 2009 by the Regional Court of The Hague, sitting in Dordrecht. Although the applicant could have appealed this decision before the Administrative Jurisdiction Division, he did not do so. 32. Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees, as amended by the New York Protocol of 31 January 1967 provides as follows: “The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.” 33. The application was introduced on 9 November 2006 and registered on 21 December 2006. 34. On 23 June 2008, at the applicant’s request, the President of the Third Section decided under Rule 39 of the Rules of Court to indicate to the Netherlands Government not to expel the applicant pending the proceedings before the Court. The President further decided, under Rule 54 § 2 (b) of the Rules of Court, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits. 35. On the basis of the applicant’s stated nationality, the Government of Azerbaijan were invited, pursuant to Article 36 § 1 of the Convention, to inform the Court whether they wished to exercise their right to submit written comments. On 10 September 2008, the Azerbaijani Government informed the Court that they wished to avail themselves of that right. The applicant and the respondent Government were informed accordingly. 36. On 23 September 2008, the respondent Government informed the Court of the proceedings still pending on the applicant’s challenge of the decision to impose an exclusion order on him, and requested leave to submit their observations after a final decision in these proceedings had been given. On 2 October 2008, the President accepted this request and fixed a new time-limit for the submission of the observations by the Netherlands Government, namely within six weeks after the final decision in the proceedings referred to by the Government. 37. On 25 September 2009, the Netherlands Government requested a further extension until 24 November 2009 of the time-limit to file observations. They explained that, as the applicant had not availed himself of the possibility to file an appeal with the Administrative Jurisdiction Division against the ruling of 4 August 2009 of the Regional Court of The Hague, sitting in Dordrecht, the latter judgment had become final on 1 September 2009 implying that the Government should file their observations within six weeks from that date. On 13 October 2009, the President acceded to this request. 38. The Government’s observations were submitted 24 November 2009. The applicant’s observations in reply were submitted on 14 January 2010. In those observations in reply, the applicant denied that he was a citizen of Azerbaijan and claimed that he was stateless. 39. On 2 February 2010, the President invited the Government of Azerbaijan to inform the Court whether or not the applicant was a national of Azerbaijan and, provided they would acknowledge that citizenship, to file any written comments they wished to make on the issues arising in the case. 40. On 2 March 2010, the Government of Azerbaijan informed the Court that the applicant was not a national of the Republic of Azerbaijan but nevertheless submitted written comments. 41. On 26 March 2010, the Azerbaijani Government were informed that, as the applicant was not a citizen of Azerbaijan, they were not automatically entitled to intervene as a third party in the proceedings on the basis of Article 36 § 1 of the Convention but, given that their comments were mainly of a factual nature, that the President had interpreted their letter of 2 March 2010 as a request for leave to intervene within the meaning of Article 36 § 2 of the Convention and had granted this request. 42. On the same date, the respondent Government, the applicant and the Government of Azerbaijan were invited to submit further information of a factual nature, and the President further accepted the respondent Government’s request for leave to submit additional observations. 43. On 27 April 2010, the Azerbaijani Government submitted the requested factual information. The respondent Government and the applicant filed additional submissions on 7 May 2010. | 0 |
dev | 001-94391 | ENG | POL | ADMISSIBILITY | 2,009 | LIS v. POLAND | 4 | Inadmissible | Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza | The applicant, Mr Stanislaw Lis, is a Polish national who was born in 1937 and lives in Sieradz. He was represented before the Court by Mr A. Pieścik, a lawyer practising in Poznań. 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. The applicant was allocated a flat in 1970 in a building owned by the Śródmieście Housing Cooperative in Szczecin. In the 1980s the applicant started experiencing problems with the ventilation system. He complained to the housing cooperative about this and the presence of carbon monoxide in the flat. On 30 March 1994 he sued the cooperative, inter alia, for an order that it repair the ventilation in the flat and for compensation. On 7 April 1997 the Szczecin District Court ordered the housing cooperative to repair the ventilation system in the applicant’s flat by 31 March 1998. It further awarded the applicant compensation. It found on the basis of expert evidence that the ventilation system was malfunctioning because of a construction defect in the building. On 11 December 1997 the Szczecin Regional Court dismissed an appeal by the applicant. On 2 April 1998 a writ of execution was issued in respect of the judgment of 7 April 1997. In August 1999 the cooperative concluded a contract with a contractor Jan-Mar concerning repairs to the ventilation duct in the applicant’s building. The works were terminated on 30 September 1999. On 30 November 1999 the ventilation system was checked by a chimney sweep, who found that it now complied with the relevant norms. On 4 January 2000 the applicant made an application to the Szczecin District Court for an order requiring the housing cooperative to comply with the judgment of 7 April 1997. The ventilation system again started to malfunction and so on 1 June 2000 the housing cooperative concluded another contract with a construction company to repair the ventilation duct. On 18 July 2000 the District Court set a time-limit until 31 August 2000 for the cooperative to comply with the judgment. At the time, it found that the judgment could also be executed by the applicant in the cooperative’s stead and at its expense. On 4 October 2000 the housing cooperative informed the applicant that the repair works had been completed. However, the applicant was not satisfied with the result and requested the Szczecin Regional Sanitary and Epidemiological Station to take appropriate measures. Subsequently, he requested an advance on the costs of the necessary works. However, in the subsequent proceedings, the District Court decided on the basis of an expert opinion that the judgment of 7 April 1997 could be executed only by the cooperative itself. According to an expert opinion, in order to repair the ventilation system in the applicant’s flat it was necessary to have access to and carry out works in other flats in the building, which precluded the applicant carrying out the works himself. On 23 April 2002 the District Court set a new time-limit of one month from the date on which its decision had become final for the housing cooperative to repair the ventilation system in the applicant’s flat. The applicant appealed. On 18 February 2003 the Szczecin Regional Court dismissed his appeal. On 17 September 2001 and 18 February 2002 the ventilation system in the applicant’s building was checked. No technical irregularities were noted. On an unspecified date in 2004 the housing cooperative instituted proceedings in the District Court against the applicant, claiming that it had complied with the obligations imposed by the judgment of 7 April 1997. On 16 February 2004 the Szczecin District Court imposed a fine of 500 zlotys (PLN) on the president of the housing cooperative or five days’ imprisonment in default for failing to comply with the court’s decision of 23 April 2002. It further ordered the cooperative to comply with the judgment of 7 April 1997 by 31 March 2004. In the event of default, a fine of PLN 700 would be imposed on the president and the deputy president of the housing cooperative. The housing cooperative appealed. It submitted that it had enforced the judgment of 7 April 1997. On 5 August 2004 the Szczecin Regional Court dismissed the appeal. On 23 February 2005 the Szczecin District Court set a new time-limit of one month from the date on which its decision had become final for the cooperative to comply with the judgment and stated that the president and deputy president would be liable to a fine of 700 PLN in default. On 12 April 2005 the President of the District Court informed the applicant that the repair works specified in the judgment of 7 April 1997 could only be performed by the cooperative. In the event of a continued failure to comply, the applicant could request the imposition of higher fines. According to official tests carried out in September 2005, the concentration of carbon monoxide in the applicant’s kitchen was over the permissible limit. Meanwhile, on 4 November 2004 the housing cooperative filed a motion to stay the writ of execution on the grounds that it had complied with the obligations imposed by the judgment of 7 April 1997. On 28 July 2006 the Szczecin District Court gave judgment in which it deprived the judgment of 7 April 1997 of its enforceability in so far as it had ordered the cooperative to repair the ventilation system in the applicant’s flat. It held that the judgment of 7 April 1997 did not indicate the exact manner in which the ventilation system was to be repaired and that it was not possible for the system to be repaired only in the applicant’s flat, as a more general solution had to be found. Works had been performed by the cooperative in 1999 and 2000 to restore the permeability of the ventilation system. While, according to several measurements that had been taken the level of carbon monoxide in the applicant’s flat was too high, that level also depended on the proper functioning of the ventilation system and the expert opinions indicated that the applicant himself had prevented the proper functioning of the system by sealing off the access of air through the windows. The District Court therefore concluded that the ventilation system in the applicant’s flat had been repaired in accordance with the judgment of 7 April 1997. The applicant appealed. On 12 April 2007 the Szczecin Regional Court dismissed his appeal. It upheld the first instance judgment and referred to the expert’s opinion confirming that the cooperative had complied with the judgment of 7 April 1997 The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland (no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V) and Ratajczyk v. Poland (no. 11215/02 (dec.), ECHR 2005-VIII) and judgment in the case of Krasuski v. Poland (no. 61444/00, §§ 34-46, ECHR 2005-V). | 0 |
dev | 001-75313 | ENG | POL | CHAMBER | 2,006 | CASE OF DUDEK v. POLAND | 4 | No violation of Art. 5-3;Remainder inadmissible | Nicolas Bratza | 4. The applicant was born in 1959 and lives in Hamburg, Germany. 5. On 25 July 2001 the applicant was arrested by the police. On 26 July 2001 the Katowice District Court (Sąd Rejonowy) ordered that the applicant be remanded in custody in view of the reasonable suspicion that, acting in an organised gang, he had been involved in the traffic of human beings and narcotics, had committed robberies and had derived profits from prostitution. The court considered that, given the fact that the applicant had been living in Germany, there was a real risk that he might go into hiding. In addition, it found that the case was complex as it concerned an organised criminal group and that, once released, the applicant might tamper with evidence or otherwise obstruct the proceedings. 6. The applicant appealed against the detention order. However, on 22 August 2001 the Katowice Regional Court (Sąd Okręgowy) dismissed the appeal. 7. On 18 October 2001 and 16 January 2002 the Bielsko-Biała Regional Court prolonged the applicant’s detention. The court repeated grounds given previously: the reasonable suspicion that he had committed the offences, the severity of the anticipated sentence, the complexity of the case and the risk that the applicant might go into hiding as he had no permanent residence in Poland. His appeals against both decisions were dismissed. 8. On 18 February 2002 the applicant and his accomplices were indicted before the Bielsko-Biała Regional Court. 9. On 16 April 2002, the Bielsko-Biała Regional Court again prolonged the applicant’s detention until 31 October 2002. It reiterated the grounds that had been stated in the previous decisions. 10. On 3 and 24 June 2002 the Bielsko-Biała Regional Court dismissed his applications for release reiterating the previously given grounds for detention. 11. On 29 August 2002 the Bielsko-Biała Regional Court held the first hearing. Subsequently, several hearings were held, and the court fined the witnesses who failed to appear. The applicant and his lawyer were present at those hearings. 12. Subsequently, the applicant’s detention on remand was prolonged and his applications for release dismissed. 13. On 18 June 2003 the Katowice Court of Appeal (Sąd Apelacyjny), on the application of the Bielsko-Biała Regional Court, further prolonged the applicant’s detention. The court repeated the grounds originally given and stressed the fact that the case concerned an organised criminal gang. 14. On 1 August 2003 the Bielsko-Biała Regional Court gave judgment with respect to the applicant and twelve co-accused. The applicant was convicted as charged and sentenced to four years’ imprisonment. The applicant requested a reasoned judgment to be prepared to enable him to lodge an appeal. 15. On 30 January 2004 the applicant was released from detention. 16. On 16 December 2004 the Katowice Court of Appeal partly allowed his appeal. The applicant was acquitted of the charges of being a member of an organised criminal group. The appellate court further quashed and remitted the part of the Regional Court’s judgment which concerned his conviction for helping in the illegal crossing of the Polish borders and in the trading in human beings. The court upheld the remaining part of the impugned judgment, which concerned the running by the applicant of a night club and possession of cannabis, and sentenced the applicant to one year and two months’ imprisonment. 17. The applicant submitted that due to a mistake of his lawyer, he did not lodge a cassation appeal against this judgment. The judgment is final. 18. The remaining part of the proceedings, which was remitted by the Katowice Court of Appeal, is pending. 19. The Code of Criminal Procedure of 1997, which entered into force on 1 September 1998, defines detention on remand as one of the socalled “preventive measures” (środki zapobiegawcze). The other measures are bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności) and prohibition to leave the country (zakaz opuszczania kraju). Article 249 § 1 sets out the general grounds for imposition of the preventive measures. That provision reads: “Preventive measures may be imposed in order to ensure the proper conduct of proceedings and, exceptionally, also in order to prevent an accused’s committing another, serious offence; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence.” 20. Article 258 lists grounds for detention on remand. It provides, in so far as relevant: “1. Detention on remand may be imposed if: (1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or when he has no permanent abode [in Poland]; (2) there is a justified fear that an accused will attempt to induce [witnesses or co-defendants] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means; 2. If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of at least 8 years’ imprisonment, or if a court of first instance has sentenced him to at least 3 years’ imprisonment, the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed.” 21. The Code sets out the margin of discretion as to the continuation of a specific preventive measure. Article 257 reads, in so far as relevant: “1. Detention on remand shall not be imposed if another preventive measure is sufficient.” Article 259, in its relevant part, reads: “1. If there are no special reasons to the contrary, detention on remand shall be lifted, in particular if depriving an accused of his liberty would: (1) seriously jeopardise his life or health; or (2) entail excessively harsh consequences for the accused or his family.” 22. The 1997 Code not only sets out maximum statutory timelimits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue. Article 263 sets out time-limits for detention. In the version applicable up to 20 July 2000 it provided: “1. Imposing detention in the course of an investigation, the court shall determine its term for a period not exceeding 3 months. 2. If, due to the particular circumstances of the case, an investigation cannot be terminated within the term referred to in paragraph 1, the court of first instance competent to deal with the case may – if need be and on the application made by the [relevant] prosecutor – prolong detention for a period [or periods] which as a whole may not exceed 12 months. 3. The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed 2 years. 4. Only the Supreme Court may, on application made by the court before which the case is pending or, at the investigation stage, on application made by the Prosecutor General, prolong detention on remand for a further fixed period exceeding the periods referred to in paragraphs 2 and 3, when it is necessary in connection with a stay of the proceedings, a prolonged psychiatric observation of the accused, a prolonged preparation of an expert report, when evidence needs to be obtained in a particularly complex case or from abroad, when the accused has deliberately prolonged the proceedings, as well as on account of other significant obstacles that could not be overcome.” On 20 July 2000 paragraph 4 was amended and since then the competence to prolong detention beyond the time-limits set out in paragraphs 2 and 3 has been vested with the court of appeal within whose jurisdiction the offence in question has been committed. | 0 |
dev | 001-114166 | ENG | TUR | ADMISSIBILITY | 2,012 | KOÇAK v. TURKEY | 4 | Inadmissible | Guido Raimondi;Helen Keller;Ineta Ziemele;Paulo Pinto De Albuquerque | 1. The applicant, Mr Mehmet Lütfi Koçak, is a Turkish national who was born in 1982 and lives in Mersin. He was represented before the Court by Mr A. Erkol, a lawyer practising in Mersin. 3. On 27 September 2002 the applicant was operated on in Adana Numune Hospital. In the consultation and examination form it was noted that the applicant was complaining of weakness in the right leg as well as occasional urinary incontinence and that he had tethered cord syndrome, a disorder of the spinal column. 4. On 30 September 2002 his catheter was removed. However, as he was not able to pass urine it was reinserted. 5. He was discharged from the hospital on 7 October 2002. 6. He was admitted to the hospital once again on 12 November 2002 for inability to pass urine. He was discharged on 21 November 2002. In the discharge summary form it was noted that the applicant had a permanent catheter. He was diagnosed with neurogenic bladder and prescribed with the use of a catheter six times a day. 7. On 22 June 2004 the applicant obtained a medical report from the health board of the Hospital of the Mersin University School of Medicine. It reads as follows: “The applicant who came to our hospital on 17 June 2004...was examined, treated and given recommendations at the Urology Department. For your information. Admission-Discharge Dates: 17/6/2004 Diagnosis: Neurogenic bladder (“urinary dysfunction”) Other issues: The catheterisation of the patient with...type of catheter six times a day for a period of one year is convenient.” 8. On 13 September 2004 he applied to the Ministry of Health seeking compensation and lodged a criminal complaint against the doctor concerned for breach of duty. 9. On the basis of a medical expert opinion given by two spinal surgeons on 7 October 2004, the Ministry of Health rejected the applicant’s request on 19 October 2004. 10. On 1 November 2004 he initiated compensation proceedings against the administration. 11. On 6 January 2005 the Governorship of Adana did not grant the permission sought for the prosecution of the doctor concerned, basing its decision on a preliminary investigation report. It was observed that the patient’s symptoms had existed prior to the surgery and that they consisted of the development of his progressive neurological disease, namely tethered cord spinal syndrome. On 7 April 2005 the public prosecutor terminated the investigation for this reason. 12. Before the Adana Administrative Court the administration claimed that the civil action was time-barred; that in any case the applicant’s complaints had pre-dated the impugned operation; that the applicant had been operated on 27 September 2002 for tethered spinal cord syndrome, and that the medical expert evidence had confirmed that the doctor concerned had not been negligent. 13. The Adana Administrative Court noted that on 25 September 2002 the applicant had been diagnosed with tethered spinal cord syndrome, the symptoms of which included loss of bladder control. Having observed that the applicant had been hospitalised for urinary incontinence on 12 November 2002, it stated: “...even assuming that at the time of the diagnosis he had not been suffering from this symptom, since he was admitted to the Urology Department on 12 November 2002 for inability to pass urine without the use of a catheter it should be held that he should have been aware of his condition by that date at the latest.” 14. The first-instance court concluded that for the purposes of section 13 of the Administrative Procedure Act the one-year time-limit had started running on 12 November 2002 and that the case lodged on 1 November 2004 was therefore time-barred. It declared the case inadmissible on 22 June 2006. 15. The applicant appealed against the decision. 16. The public prosecutor at the Supreme Administrative Court pointed out that the time should be calculated from the date on which the person concerned had become aware of the damage. He referred to paragraph 1 of section 13 of the Administrative Procedure Act, which stipulates that individuals whose rights have been violated by an administrative action should apply to the administration concerned for redress within one year of the date on which they were notified or otherwise became aware of the administrative action, and in any case within five years of the date of the action. He proposed that the judgment of the first-instance court should be quashed, holding that the applicant had become aware on 22 June 2004 that his neurogenic bladder might have been connected to the surgical operation. 17. The Supreme Administrative Court upheld the decision of the firstinstance court on 27 October 2008. The final decision was served on the applicant on 5 January 2009. | 0 |
dev | 001-4565 | ENG | DEU | ADMISSIBILITY | 1,999 | WOLFHARD KOOP-AUTOMATEN GOLDENE 7 GmbH & Co. KG v. GERMANY | 4 | Inadmissible | Matti Pellonpää | The applicant company is a limited liability company under German law with its registered office in Lübeck. It has for its object the installation and operation of gambling machines in restaurants in Eutin. It is represented before the Court by Mr H. Schiedermair, a public law professor at Cologne University. A. In May 1989 the applicant company filed a declaration in respect of entertainment tax (Vergnügungssteuer) for the month of May 1989 regarding two gambling machines installed and operated in the area of the Eutin Municipality and estimated the tax due at 400 German marks (DM), on the basis of a prescribed global tax rate of DM 200 per month and per machine, irrespective of the effective returns generated by that machine. At the same time, it lodged an administrative appeal against the tax assessment to the extent that it exceeded DM 100, i. e. DM 50 for each machine. The Eutin Municipality dismissed the appeal. Thereupon the applicant company instituted proceedings with the Schleswig Holstein Administrative Court (Verwaltungsgericht), arguing that the Eutin Statute on entertainment tax for gambling machines (Satzung über die Erhebung einer Vergnügungssteuer für das Halten von Spiel- und Geschicklichkeitsgeräten - “Statute on entertainment tax”) was void because it lacked a proper legal basis. The Administrative Court dismissed the action on 24 April 1990. On 13 February 1992 the Schleswig Holstein Administrative Appeals Court (Oberverwaltungsgericht) dismissed the applicant company’s appeal. The Administrative Appeals Court, in detailed reasoning based on the case-law of the Federal Constitutional Court (Bundesverfassungsgericht) and the Federal Administrative Court (Bundesverwaltungsgericht), found that the tax assessments were lawful. In particular the underlying Statute on entertainment tax had a sufficient legal basis in section 3(1) of the Schleswig Holstein Municipal Tax Act (Kommunalabgabengesetz), which could not be objected to from a constitutional point of view. In this respect, the court, referring to the relevant provision of the German Basic Law (Grundgesetz), considered that the Land was competent to enact legislation concerning local excise and luxury taxes (Verbrauch- und Aufwandsteuern) unless such matters were covered by federal legislation. The entertainment tax in question constituted a local luxury tax within the meaning of this provision which was not similar to any taxes regulated by federal legislation. Moreover, in the court’s view, section 3(1) of the Municipal Tax Act was sufficiently precise, even if in some cases the term “gambling machines” might necessitate interpretation. Furthermore, the fact that section 3(1) of the Municipal Tax Act only authorised levying entertainment tax with regard to gambling machines did not amount to discrimination. The court, referring to the discretionary powers of the legislator in tax matters, found no indication of arbitrariness in the impugned taxation and the related procedural matters. It found in particular that the taxation was based on the increasing number of gambling establishments in the municipalities and the problems resulting therefrom. The tax did not, therefore, merely serve the purpose of constituting a municipal source of revenue, but also that of opposing the expansion of gambling establishments. Finally, in the court’s view, the tax rates fixed in the Eutin Statute on entertainment tax did not exceed the statutory limits. Having regard to the relevant case-law, the court observed that tax rates were only permissible to the extent that taxes were eventually financed by the users of the gambling machines, whereas, for the persons installing and operating the machines, the tax was to be regarded as no more than a transitory item. There was no indication that the rate of the entertainment tax in question was such as to leave the gambling machine business without any income. Moreover, the applicant company had failed to show that, in the specific case, the business was unprofitable on account of the tax levied. As regards the applicant company’s further arguments, the court considered inter alia that the defendant municipality was not prevented from fixing global tax rates, irrespective of the returns of individual machines and of whether they were installed and operated in a gambling establishment, in a restaurant or in a similar establishments. The exemptions for machines without any prospect of winning or for particular machines used in fairs could not be regarded as unreasonable. On 9 September 1992 the Federal Administrative Court dismissed the applicant company’s request for leave to appeal on points of law. It found that the case raised no issue of fundamental importance and that the findings of the Administrative Appeals Court were in line with both the case-law of the Federal Constitutional Court and its own. Moreover, taking into account the global assessment of the tax in question, the latter could not be regarded as turn-over tax, and there had, therefore, been no reason to refer the case to the European Court of Justice on a question of community law concerning turnover-tax. On 1 March 1997 the Federal Constitutional Court refused to entertain the appeal brought by the applicant company and similar appeals which had been joined to it. It found that the appeals were of no fundamental importance as the questions raised were already settled by the court’s case-law. Furthermore, they had no prospect of success. In this respect, the Constitutional Court observed that the taxes in question only indirectly affected the complainants’ freedom to exercise their profession. Articles 105 § 2a and 106 § 6 (1) of the Basic Law expressly mentioned local excise and luxury taxation. The Federal Constitutional Court confirmed that section 3(3) of the Schleswig Holstein Municipal Tax Act inter alia was sufficiently precise. The concept of “local excise and luxury taxes” had been clarified in its case-law. Moreover, section 3(3) of the Schleswig Holstein Municipal Tax Act specifically limited the municipal power of taxation to a specific entertainment tax. Furthermore, the traditional local excise and luxury taxes, such as the entertainment tax, could not be regarded as similar to a federal tax. The prohibition on levying similar taxes found in federal legislation (Article 105 § 2a of the Basic Law) did not, therefore, apply here. The Constitutional Court further considered that the Eutin Municipality had not exceeded its powers by emphasizing the regulatory aspect of the entertainment tax rather than its function as a source of municipal revenue. The lower courts had correctly held that the taxation did not amount to an unreasonable burden and did not render the business concerned unprofitable. Finally, according to the Constitutional Court, the Federal Administrative Court had not been obliged to refer the case to the European Court of Justice as the relevant issues were settled in the latter’s case-law. B. Relevant domestic law Article 105 of the German Basic Law regulates legislative competences in tax matters. Article 105 §§ 1 and 2 concern the exclusive and concurrent competences of the Federation. Paragraph 2a provides that the Länder shall have legislative competence in respect of local excise and luxury taxes as long and in so far as they are not identical with taxes imposed by federal legislation. Article 106, which concerns the apportionment of tax revenues, stipulates inter alia, in its paragraph 6, first sentence, that revenue from local excise and luxury taxes shall accrue to the municipalities. According to section 3(1) of the Schleswig Holstein Municipal Tax Act, as amended, municipalities are authorised to levy an entertainment tax on gambling machines unless such machines are installed in places subjected to the casino tax (Spielbankabgabe). | 0 |
dev | 001-96216 | ENG | UKR | CHAMBER | 2,009 | CASE OF LOGACHOVA v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial | Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger | 4. On various dates each of the applicants received one or more final decisions awarding payments from companies (see appendix for details) in which the State holds at least 25% of the share capital, and instituted enforcement proceedings to collect the payments. 5. Some of the applicants disagreed with the amounts awarded to them in the above decisions. Mr Ostroverkhov, for instance, appealed against the decision of 26 June 2000 in his favour but it appears that he failed to comply with the procedural requirements and his appeals were rejected. He did not appeal against the decision of 24 May 2002. 6. After the decisions in the applicants' favour had become final, insolvency or liquidation proceedings against the debtors were initiated. On that account, the State Bailiffs' Service terminated the enforcement proceedings against them and transferred the applicants' writs of enforcement to the relevant bankruptcy trustees or liquidation commissions for further processing. At the end, some of the debtors were liquidated. 7. The decisions in the applicants' favour remain unenforced. 8. The relevant domestic law is set out in the judgment of 26 April 2005 in the case of Sokur v. Ukraine (no. 29439/02, §§ 17-22). | 1 |
dev | 001-58807 | ENG | GBR | CHAMBER | 2,000 | CASE OF OLDHAM v. THE UNITED KINGDOM | 1 | Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings | Nicolas Bratza | 8. In April 1970 the applicant, then aged 21, was convicted of manslaughter, qualified as such on the grounds of diminished responsibility, and sentenced to life imprisonment. Medical evidence adduced at the trial showed that the applicant suffered from a mental abnormality induced by alcohol. 9. On 27 July 1993 the applicant was released on life licence for the third time subject to the condition, amongst others, that he should comply with any reasonable requirement imposed by his probation officer for the treatment of his alcohol problem. He had been recalled to prison twice previously and had since been transferred to open prison conditions in 1989. 10. On 1 July 1996 the police were called to the home of the applicant's partner, M., who is a deaf mute. She was taken to hospital where she received treatment for injuries to her face and back. 11. On 2 July 1996 the Secretary of State revoked the applicant's licence and recalled him to prison. By a letter dated 4 July 1996, the Secretary of State indicated that the licence was revoked on the grounds that the applicant had caused M.'s injuries after drinking at least eight cans of lager. This was so stated in the report by the applicant's probation officer who had met with M. on 2 July 1996. The case was referred to the Parole Board which confirmed the revocation of the applicant's licence on 12 July 1996. 12. On 8 November 1996 the Parole Board's Discretionary Lifer Panel (“the DLP”), chaired by a High Court judge, met to consider the applicant's representations against recall. It considered the applicant's written and oral representations, the views of two probation officers, the oral evidence of M. and the submissions of the applicant's solicitor and counsel for the Secretary of State. In her oral evidence M. gave evidence to the effect that it had been she and not the applicant who had been responsible for her injuries. A prison officer, who had attained a stage 1 British Sign Language qualification and was training towards stage 2, attended the hearing and acted as interpreter for M. 13. In its written decision of 12 November 1996 the DLP stated, in its reasons for rejecting the applicant's representations, that it had accepted the evidence which indicated that the applicant had been responsible for M.'s injuries, rather than the account put forward on behalf of the applicant. It expressed the opinion that, in order to minimise the risk posed by the applicant to members of the public, the applicant needed to carry out further work in respect of alcohol, anger and relationships. This was communicated to the applicant in a letter dated 15 November 1996 by the Secretary of State, who informed the applicant that his next Parole Board review was set for November 1998. 14. The applicant and M. married in prison on 6 February 1997. 15. The applicant applied for legal aid to challenge the DLP's decision by judicial review. On appeal, legal aid was granted for the limited purpose of seeking further evidence and counsel's opinion. On 15 March 1997, counsel advised that an application for judicial review would be unsuccessful and legal aid was not extended. 16. While in prison, the applicant attended courses in anger management, relationships, alcohol awareness and men and violence run by the Manchester Probation Service. These had been completed within eight months of his recall. 17. On 7 December 1998 the applicant had a further hearing before the DLP. Despite expressing some reservations, the DLP concluded that the applicant had made significant and sufficient progress since his previous review and recommended to the Secretary of State that he be released on licence. The applicant was released on 17 December 1998. 18. Persons sentenced to mandatory and discretionary life imprisonment, custody for life and those detained during Her Majesty's pleasure have a “tariff” set in relation to the period of imprisonment they should serve in order to satisfy the requirements of retribution and deterrence. After the expiry of the tariff, the prisoner becomes eligible for release on licence. Applicable provisions and practice in respect of the fixing of the tariff and release on licence have been subject to change, most notably following the coming into force on 1 October 1992 of the Criminal Justice Act 1991 (“the 1991 Act”), which was in force at the relevant time. (The provisions of the 1991 Act were replaced by the Crime (Sentences) Act 1997 (“the 1997 Act”) from 1 October 1997.) 19. Section 39 of the 1991 Act allowed the Secretary of State to revoke a discretionary life prisoner's licence where it appeared to be expedient in the public interest to recall him to prison. Once recalled, the prisoner had to be informed of the reasons for his recall and could make representations in writing. 20. According to section 32(2) of the 1991 Act, the Parole Board had a duty to advise the Secretary of State with respect to any matter referred to it by him which was connected with the early release or recall of prisoners. The Parole Board's chairman appointed three members of the Parole Board to consider discretionary life cases. They comprised the DLP. The DLP always held an oral hearing when considering whether to release a discretionary life prisoner whose tariff had expired or whether to recall a discretionary life prisoner whose licence had been revoked. It was the duty of the Secretary of State to release the prisoner if the DLP directed his release. 21. According to the Parole Board Rules 1992, which came into force on 1 October 1992, a prisoner was entitled, among other things, to an oral hearing, disclosure of evidence before the Parole Board and legal representation. He was also entitled to call witnesses on his behalf and to cross-examine those who had written reports about him. A reasoned decision by the DLP was delivered within seven days of the hearing. 22. When deciding under section 39 that recall should be confirmed, the DLP often gave guidance as to the timing of the next review. It normally recommended a further review in two years but an earlier date could be given in appropriate cases, with reasons. Where no guidance was given, the Secretary of State decided the date of the next review. Where it became clear that the prisoner had made unexpectedly rapid progress prior to the set review date, the date of the review could be brought forward. A discretionary life prisoner may request the Secretary of State to refer his case to the Parole Board after the end of the period of two years beginning with the disposal of a previous reference to the Board (section 34(5)(b) of the 1991 Act, now section 28(7)(b) of the 1997 Act). | 1 |
dev | 001-69165 | ENG | HRV | CHAMBER | 2,005 | CASE OF DEBELIC v. CROATIA | 3 | Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award | Christos Rozakis | 4. The applicant was born in 1939 and lives in Rab. 5. On 10 June 1996 a company J. (“the company”) instituted civil proceedings against the applicant in the Rijeka Commercial Court (Trgovački sud u Rijeci) seeking restitution of business premises in the applicant's possession and payment of rent. 6. On 7 August 1996 the applicant filed a counterclaim against the company seeking payment of a certain amount of money on the basis of his investments in the business premises. 7. The two cases were joined. 8. On 2 October 1996 the Rijeka Commercial Court decided in the company's favour. At the same time it dismissed the applicant's claim as inadmissible because the company had meanwhile gone bankrupt and the applicant failed to report his claim in bankruptcy. 9. The applicant appealed against that decision. On 11 February 1997 the High Commercial Court (Visoki trgovački sud Republike Hrvatske) upheld the first instance judgment. 10. On 27 March 1997 the applicant filed a request for revision on points of law (revizija) with the Supreme Court (Vrhovni sud Republike Hrvatske). 11. On 11 December 2001 the Supreme Court dismissed the applicant's request on its merits. That decision was not served on the applicant until 6 May 2002. 12. Meanwhile, on 22 March 2002 a new section 59 (a), which subsequently became section 63 of the Constitutional Court Act entered into force, introducing a domestic remedy for length of proceedings in form of a constitutional complaint. 13. In line with the new legislation, on 11 April 2002 the applicant filed a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) complaining about the length of the proceedings. 14. On 2 October 2002 the Constitutional Court dismissed the applicant's complaint because the Supreme Court had meanwhile decided his case. 15. Article 29 of the Constitution guarantees, inter alia, the right to a court which shall decide on an individual's rights and obligations within a reasonable time. 16. The relevant part of section 62 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002, of 3 May 2002; “the Constitutional Court Act”) reads as follows: “1. Everyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the individual act of a state body, a body of local and regional self-government, or a legal person with public authority, which decided about his or her rights and obligations, or about suspicion or accusation for a criminal act, has violated his or her human rights or fundamental freedoms guaranteed by the Constitution, or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: constitutional right)... 2. If another legal remedy is allowed against the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after this remedy has been exhausted. 3. In matters in which an administrative action or, in civil and non-contentious proceedings, a revision on points of law are allowed, remedies are exhausted only after the decision on these legal remedies has been given.” 17. The relevant part of section 63 of the Constitutional Court Act reads as follows: “1. The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the court with jurisdiction fails to decide a claim concerning the applicant's rights and obligations or a criminal charge against him or her within a reasonable time ... 2. If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the court with jurisdiction must decide the case on the merits... 3. In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.” The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/91, 91/92, 58/93, 112/99, 88/01) in the relevant part reads as follows: Section 382 provides that a request for revision on points of law may be filed against the second instance judgment within 30 days following its service on the party. It also enumerates cases in which such a request is allowed. Sections 395 and 396 provide that the Supreme Court, in case it finds a request for revision on points of law well-founded, may quash the second instance judgment and remit the case or, in certain cases, it may also reverse the second instance judgment. | 1 |
dev | 001-58561 | ENG | GRC | GRANDCHAMBER | 2,000 | CASE OF THLIMMENOS v. GREECE | 1 | Preliminary objection rejected (non-exhaustion);Preliminary objection rejected (estoppel);Violation of Art. 14+9;Not necessary to examine Art. 9;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award | Luzius Wildhaber | 7. On 9 December 1983 the Athens Permanent Army Tribunal (Diarkes Stratodikio), composed of one career military judge and four other officers, convicted the applicant, a Jehovah's Witness, of insubordination for having refused to wear the military uniform at a time of general mobilisation. However, the tribunal considered under Article 70 (b) of the Military Criminal Code and under Article 84 § 2 (a) of the Criminal Code that there were extenuating circumstances and sentenced the applicant to four years' imprisonment. The applicant was released on parole after two years and one day. 8. In June 1988 the applicant sat a public examination for the appointment of twelve chartered accountants, a liberal profession in Greece. He came second among sixty candidates. However, on 8 February 1989 the Executive Board of the Greek Institute of Chartered Accountants (hereinafter “the Board”) refused to appoint him on the ground that he had been convicted of a serious crime (kakuryima). 9. On 8 May 1989 the applicant seised the Supreme Administrative Court (Simvulio Epikratias) invoking, inter alia, his right to freedom of religion and equality before the law, as guaranteed by the Constitution and the Convention. The applicant also claimed that he had not been convicted of a crime but of a less serious offence. 10. On 18 April 1991 the Third Chamber of the Supreme Administrative Court held a hearing. On 25 May 1991 it decided to refer the case to the plenary court because of the important issues it raised. The Chamber's own view was that Article 10 of Legislative Decree no. 3329/1955 provided that a person who would not qualify for appointment to the civil service could not be appointed a chartered accountant. Moreover, according to Article 22 § 1 of the Civil Servants' Code, no person convicted of a serious crime could be appointed to the civil service. However, this provision referred to convictions by courts established in accordance with Article 87 § 1 of the Constitution. This was not the case with the permanent military courts, because the majority of their members were not career judges enjoying the same guarantees of independence as their civilian colleagues, as envisaged by Article 96 § 5 of the Constitution. As a result, the applicant's conviction by the Athens Permanent Army Tribunal could not be taken into consideration and the Board's decision not to appoint the applicant a chartered accountant had to be quashed. 11. On 21 January 1994 a hearing was held before the Supreme Administrative Court, sitting in plenary. On 11 November 1994 the court decided that the Board had acted in accordance with the law when, for the purposes of applying Article 22 § 1 of the Civil Servants' Code, it had taken into consideration the applicant's conviction for serious crime by the Athens Permanent Army Tribunal. Article 96 § 5 of the Constitution provided that the military courts would continue functioning as they had before until the enactment of a new law which would change their composition. Such a law had not yet been enacted. The Supreme Administrative Court further decided to refer the case back to the Third Chamber and ordered it to examine the remaining issues. 12. The decision of 11 November 1994 was taken by a majority. The minority considered that, since nine years had passed since the Constitution had entered into force without the law envisaged in Article 96 § 5 thereof having been enacted, the guarantees of independence required from civilian judges had to be afforded by the existing military courts. Since that was not the case with the Athens Permanent Army Tribunal, Mr Thlimmenos's application for judicial review had to be allowed. 13. On 26 October 1995 the Third Chamber held a further hearing. On 28 June 1996 it rejected Mr Thlimmenos's application for judicial review, considering, inter alia, that the Board's failure to appoint him was not related to his religious beliefs but to the fact that he had committed a criminal offence. 14. Until 30 April 1993 only members of the Greek Institute of Chartered Accountants could provide chartered accountants' services in Greece. 15. Article 10 of Legislative Decree no. 3329/1955, as amended by Article 5 of Presidential Decree no. 15/1989, provided that a person who did not qualify for appointment to the civil service could not be appointed a chartered accountant. 16. According to Article 22 § 1 of the Civil Servants' Code, no person convicted of a serious crime can be appointed to the civil service. 17. On 30 April 1993 the monopoly of the Institute of Chartered Accountants was abolished. Most chartered accountants became members of the Chartered Auditors' Company Ltd. 18. Article 70 of the Military Criminal Code in force until 1995 provided: “A member of the armed forces who, having been ordered by his commander to perform a duty, refuses or fails to execute the order shall be punished – (a) if the act is committed in front of the enemy or armed insurgents, with death; (b) in times of war or armed insurgency or during a state of siege or general mobilisation, with death or, if there are extenuating circumstances, with life imprisonment or imprisonment of at least five years and (c) in all other circumstances, with imprisonment between six months and two years.” 19. By virtue of Presidential Decree no. 506/1974, at the time of the applicant's arrest Greece was deemed to be in a state of general mobilisation. This decree is still in force. 20. Article 84 § 2 (a) of the Criminal Code provides that a lesser penalty shall be imposed on persons who, prior to the crime, had led an honest life. 21. Under Article 1 of the Military Criminal Code in force until 1995, offences punishable with a sentence of at least five years' imprisonment were considered to be serious crimes (kakuryimata). Offences punishable with a sentence of up to five years' imprisonment were considered misdemeanours (plimmelimata). 22. Under the new Military Criminal Code of 1995 insubordination not committed in time of war or in front of the enemy is considered a misdemeanour. 23. Under section 2(4) of Law no. 731/1977, those who refused to perform unarmed military service on the basis of their religious beliefs were sentenced to imprisonment of a duration equivalent to that of the unarmed service, that is, less than five years. 24. Law no. 2510/1997, which entered into force on 27 June 1997, gives conscientious objectors the right to perform civilian, instead of military, service. Under section 23(1) and (4) of this law, persons who had been convicted of insubordination in the past were given the possibility of applying for recognition as conscientious objectors. One of the effects of such recognition was having the conviction expunged from one's criminal record. 25. Applications under section 23(1) and (4) of Law no. 2510/1997 had to be lodged within a period of three months starting from 1 January 1998. They were examined by the commission that advises the Minister of National Defence on the recognition of conscientious objectors. The commission had to apply section 18 of Law no. 2510/1997, which provides: “Persons who invoke their religious or ideological beliefs in order not to fulfil their military obligations for reasons of conscience may be recognised as conscientious objectors ...” | 1 |
dev | 001-59061 | ENG | CHE | CHAMBER | 2,000 | CASE OF G.B. v. SWITZERLAND | 3 | Violation of Art. 5-4;Non-pecuniary damage - financial award;Costs and expenses partial award | Georg Ress | 9. The applicant, a Swiss citizen born in 1945, resides in Minusio, Switzerland. 10. On 20 September 1994, the applicant was arrested and remanded in custody on urgent suspicion (dringender Verdacht) of having participated together with the “Carlos” terrorist group in an attack on the radio station Radio Free Europe in Munich and in attacks on diplomatic staff in Lebanon and France. The warrant of arrest also referred to a danger of collusion and absconding. 11. On 22 September 1994 the investigating judge of the Canton of Bern confirmed the detention on remand of the applicant. The decision noted that the suspicion was based on files of the East German State security authorities and the Hungarian intelligence service. There was an urgent suspicion that, as a supporter of the “Carlos” group, he had participated in the various events. Additional investigations would be necessary since the applicant refused to comment on his contacts with the group. According to the decision, detention was further required in order to avoid collusion with other members of the group. There was also a danger of absconding in view of the severity of the possible prison sentence. 12. The investigations were then conducted by the Federal Attorney’s Office (Bundesanwaltschaft). 13. On Friday, 21 October 1994, the applicant filed a request with the Federal Attorney for release from detention. He contested the urgent suspicion that he had committed the offences at issue and that there was a danger of collusion and absconding. He also requested consultation of the case-file. The request was received by the Federal Attorney on Monday, 24 October. 14. On Tuesday, 25 October 1994, the Federal Attorney dismissed the applicant’s request. The decision, referring to various investigations still to be undertaken as well as a danger of collusion and absconding, was served on the applicant on Thursday, 27 October. 15. On Monday 31 October 1994, the applicant filed an appeal (Beschwerde) against the decision of 25 October with the Indictment Chamber (Anklagekammer) of the Federal Court, invoking Article 5 §§ 1, 2 and 4 and Article 6 § 3 of the Convention and requesting release from detention. He complained that more than six weeks had lapsed without the lawfulness of his detention having been examined by a court within the meaning of Article 5 § 4 of the Convention, and that he had not been able to consult the case file. The appeal was received by the Federal Court on Tuesday 1 November 1994. 16. On the same day the President of the Indictment Chamber transmitted a copy of the appeal to the Federal Attorney who was requested to submit her observations by Monday 7 November 1994. The Federal Attorney was further asked to send a copy of her observations to the applicant who, in turn, was requested to submit any observations by 11 November 1994. 17. On 7 November 1994, the Federal Attorney’s Office filed her observations. They were served on the applicant on 8 November 1994. 18. The applicant filed his observations in reply on Friday 11 November 1994. These observations were received by the Federal Court on Monday 14 November. 19. On Monday 21 November 1994, the Indictment Chamber of the Federal Court dismissed the applicant’s request, the decision being served on the applicant on Tuesday 22 November 1994. 20. In respect of the applicant’s complaint that he could not consult the case-file, the Indictment Chamber found that the applicant had had knowledge of the essential documents. The decision further confirmed that there was sufficient suspicion that the applicant had committed the offences at issue and that there was also a danger of absconding and of collusion. 21. On 30 November 1994 the Federal Attorney’s Office decided to release the applicant from detention on remand. The decision stated, inter alia, that the original suspicions directed against the applicant had not been confirmed (erhärtet). 22. According to Section 52 of the Federal Act on Criminal Procedure (Bundesstrafrechtspflegegesetz), a person detained on remand may at any time file a request for release from detention. If the investigating judge or the Federal Attorney refuse the request, an appeal may be filed with the Indictment Chamber of the Federal Court. According to Sections 105 bis and 217 of the Act, the time-limit for filing the appeal is three days. | 1 |
dev | 001-81505 | ENG | MDA | CHAMBER | 2,007 | CASE OF BIMER S.A. v. MOLDOVA | 3 | Violation of P1-1;Pecuniary damage - financial award | Nicolas Bratza | 7. The applicant, Bimer S.A., is a company incorporated in the Republic of Moldova. From the moment of incorporation its shares were owned by Moldovan, American and Bahamian investors, it therefore qualified as a company owned by foreign investors and thus benefited from special incentives and guarantees under the Law on Foreign Investments (see paragraph 24 below). 8. On 10 June 1994 Presidential Decree No. 195 (“the Decree”) was promulgated. It made possible the creation and operation of duty free shops at land, water and air-border crossings. According to the Decree, the duty free shops were entitled to sell imported goods without having to pay customs tax (see paragraph 23 below). 9. On 12 June 1997 the applicant company signed a contract with the Leuşeni Customs Office, at the border between Moldova and Romania, providing for the opening of duty free shops on the territory of the customs zone. The contract did not contain any provisions as to its duration. It was approved by the Head of the Customs Department of the Government and by the Minister of National Security. 10. On 3 July 1998 and on 2 December 1998 the company obtained two licences to operate a duty free shop and a duty free bar, within the shop, at the Leuşeni Customs Office. The licences were issued in accordance with the Decree and they did not contain any provisions as to their duration. Subsequently, the applicant company bought the necessary equipment, built the premises of the shop and bar and started operating them. 11. On 24 April 2002 the Moldovan Parliament made an amendment to the Customs Code by which duty free sales outlets were thenceforward restricted to international airports and on board aircraft flying international routes (see paragraph 25 below). 12. On 18 May 2002 the Customs Department ordered the closure of all duty free outlets which were not located in international airports or on board aircraft flying international routes (“the order”). 13. On 12 June 2002 the applicant company, together with other companies similarly affected, lodged a court action against the order with the Court of Appeal of the Republic of Moldova. 14. The applicant argued inter alia that the grounds relied on by the Customs Department in closing down its duty free shop and bar were not enumerated in the exhaustive list of grounds for closing down such shops provided for in section 56 of the Customs Code. 15. Moreover, in the light of section 46 of Law No. 780 (see paragraph 26 below), the new amendments to the Customs Code could not have retroactive effect and could be interpreted only as limiting the opening of duty free shops in the future, and not as closing down those already open. 16. According to the applicant, the order conflicted with section 40 of the Law on Foreign Investments (see paragraph 24 below), which stipulated that the activity of a company owned by foreign investors could be terminated only by a governmental decision or a court order, and only when the company had seriously breached Moldovan legislation and its articles of incorporation. 17. The applicant further argued that according to section 43 of the Law on Foreign Investments (see paragraph 24 below), in the event of the adoption of new, less favourable legislation, companies owned by foreign investors were entitled to rely on the old legislation for a period of ten years. The ten-year period began to run from the date of enactment of the new legislation. Moreover, the second paragraph of the same section specifically provided that foreign-owned companies which enjoyed customs incentives in accordance with the former legislation of the Republic of Moldova had the right to enjoy those incentives after new legislation came into effect. 18. On 26 June 2002 the Court of Appeal of the Republic of Moldova ruled in favour of the applicant company and quashed the order, relying inter alia on the following reasons: “...The court considers that the order of the Customs Department No. 127 of 18 May 2002, issued for the purpose of applying Law No. 1022 of 25 April 2002 [concerning the modification of the Customs Code], by which the activity of duty free shops was terminated starting with 18 May 2002... is illegal because it is contrary to the legislation in force. Law No. 1022 of 25 April 2002, by which Article 51 of the Customs Code was modified ... does not provide for the termination of the activity of the duty free shops already open in places other than airports and on board aeroplanes. Moreover, the above mentioned Order [of the Customs Department] runs contrary to Article 56 of the Customs Code which does not provide among the reasons for liquidating a duty free shop the reason provided for in the Order – a change in the legislation. The Court considers that the modified text of Article 51 of the Customs Code cannot have a bearing on the duty free shops already open and in operation, because this would also run contrary to Article 46 (1) of the Law on the Normative Acts, which stipulates that a law cannot be retroactive or ultra active. Since the applicants are enterprises with foreign investments, the Court considers that the Order runs contrary to Article 39 (1) of the Law on Foreign Investments, which provides that the foreign investments are guaranteed full security and protection in the Republic of Moldova. Moreover, according to Article 40 of the Law on Foreign Investment, the applicants' activity ...can be terminated only by means of a Government Decision or a court judgment and only if they have seriously breached the legislation or their statute of incorporation. However, the Order in question does not contain any reference to any breaches committed by the applicant and is not based on a Government Decision or a court judgment. It is necessary to indicate that in accordance with Article 43 (1) of the Law on Foreign Investment, in case of enactment of new laws which change the conditions of a company with foreign investment created before the enactment of such laws, the company in question has the right to guide itself by the old legislation for a period of 10 years calculated from the date of enactment of the new legislation. According to the second paragraph of section 43 of the Law on Foreign Investments, foreign investors and enterprises with foreign capital which enjoyed customs, tax and other incentives in accordance with the legislation of the Republic of Moldova formerly in force, have the right to enjoy these incentives after the new legislation comes into effect. ... The court considers that the Order violated the applicants' right to property guaranteed by Article 46 of the Constitution, Sections 1, 40 and 41 of the Law on Property and by Article 1 of Protocol No. 1 to the Convention.” 19. The Customs Department appealed against this judgment to the Supreme Court of Justice. 20. On 11 September 2002 the Supreme Court of Justice allowed the Customs Department's appeal, quashed the judgment of the Court of Appeal and dismissed the applicant's action. The grounds relied on by the Supreme Court were as follows: “The first instance court, in finding for the applicants, reached conclusions which are based on a wrong interpretation of the law because the Order in question does not provide for a total termination of the activity of duty free shops but only for the termination of their activity in certain places. Therefore the first instance court's conclusion that the Order had as effect the termination of the entire activity of the foreign investors who had opened these shops and that thus their right to total security and protection provided for by Article 31 of the Law on Foreign Investment was violated is incorrect. Article 51 of the Customs Code, as modified by Law No. 1022 of 25 April 2002, defines the duty free as a customs regime which consists of sale of goods under customs supervision in especially dedicated places in international airports and onboard aeroplanes. Accordingly, through this provision the legislators regulate and limit the places in which such shops can be located but they do not create any interdiction in so far as their activity is concerned. Therefore the arguments of the first instance court that the right to activity of the foreign investors has been violated, is devoid of legal support. The applicants are not prohibited to place their shops in the places provided for by law, i.e. in airports and onboard aeroplanes. ... According to the documents of incorporation of these companies, they practice different kinds of activities, including the sale of goods in the Duty Free regime. The conclusion of the first instance court that the Order violated the right to property guaranteed by the Constitution and the international law is incorrect because the companies in question have the right to open duty free shops in other places, as provided by Article 51 of the Customs Code. The activity of the companies is not totally stopped and nothing is taken away from them. ... The first instance court's reference to Article 40 of the Law on Foreign Investment which says that the activity of a company with foreign investment can only be terminated by a Government Decision or a court judgment is wrong because the Order did not totally terminate the applicants' activity but only the sale of goods in the Duty Free regime. They can do other activities which are provided in their documents of incorporation.” 21. The Supreme Court of Justice did not express any view on the applicant's argument or the ruling of the Court of Appeal concerning the applicability of the second paragraph of section 43 (2) of the Law on Foreign Investment to the case. Its judgment was final. 22. The relevant extracts from the Constitution of the Republic of Moldova read as follows: “Article 46. The right to private property and its protection (1) The right to possess private property ... [is] guaranteed. (2) No one may have his property expropriated except for reasons dictated by public necessity, as established by law, and subject to the payment of just and appropriate compensation made in advance. (3) No assets legally acquired may be confiscated. The effective presumption is that of legal acquirement. ...” 23. Presidential Decree No. 195 of 10 June 1994, in so far as relevant, reads: “... Section 3. Imported goods which are to be sold at “duty free” shops... shall be exempted from customs tax; ... “Duty free” shops may be operated at the road, naval and air border crossing points....” 24. The Law on Foreign Investments of 1 April 1992, in so far as relevant, reads: “Section 1. The applicable law ... 3.... Laws which contradict the present law in the part concerning foreign investments shall not be applicable. ... Section 35. Customs incentives for goods brought into the country 1. The goods referred to in section 3 of the present law [cars, equipment, office equipment, row material...], which are brought into the country as a contribution to the statutory capital shall be exempted from customs tax. ... Section 36. Customs incentives for import and export ... 2. A company owned by foreign investors shall be exempt from customs tax for merchandise (raw materials...), imported for the purpose of producing goods to be exported. Section 39. Guarantees concerning nationalisation or expropriation of foreign capital investments 1. Foreign investments in the Republic of Moldova are granted complete security and protection. 2. Foreign investments cannot be expropriated, nationalised or subjected to any other similar measures in any way other than according to the law, on the basis of a law serving the national interest and against the payment of appropriate compensation. 3. Compensation shall correspond to the value of investment assessed immediately before the moment of expropriation, nationalisation or other similar measure. It must be paid not later than three months from the moment the above measures are taken, with an appropriate bank interest rate calculated before the date of payment. The compensation has to be paid in the currency in which the investment was made and it may be transferred abroad without any restrictions. 4. The payment of compensation is ensured by the State body entitled to carry out the expropriation, nationalisation or any other similar measures. The State body must determine the value of investment and pay the compensation not later than the day of the expropriation, nationalisation or other similar measure. If the State body does not have sufficient funds, the compensation shall be paid from the State budget. 5. The affected investor is entitled to request verification of the legality of the expropriation, nationalisation or other similar measure and of the amount of the compensation in the manner provided for by law.” Section 40. Guarantees concerning forcible suspension and cessation of activity 1. The activity of an enterprise with foreign investors can be forcibly suspended only in accordance with a decision of the Government of the Republic of Moldova or a competent court, when the enterprise has seriously violated the terms of the legislation of the Republic of Moldova or the provisions of its articles of incorporation... 2. If the activity of an enterprise with foreign investors is suspended on the initiative of a body of State control, and no violations of legislation or of the constitutive documents are found, the above body shall compensate the enterprise for any damage including lost profit. If the State body does not have sufficient money, the payment is made from the State budget. 3. The assets of a foreign investor whose enterprise is liquidated or who withdraws from the enterprise may be taken abroad by him without any licence.” ... “Section 43. Guarantees concerning changes of legislation 1. In the event of the adoption of new legislative acts changing the conditions of activity of an enterprise with foreign capital created before the adoption of such acts, that enterprise shall have the right to have applied to it the legislation of the Republic of Moldova operating on the day of its creation for a period of ten years calculated from the day of the entry into force of the new legislative act. 2. The provisions of paragraph 1 do not extend to legislation related to tax, customs, finance, monetary, credit, currency or anti-trust measures, or to legislation regulating State security, protection of the environment, social order, morals or the health of the population. Foreign investors and enterprises with foreign investors which enjoyed customs, tax and other incentives in accordance with the former legislation of the Republic of Moldova shall enjoy those incentives after the new legislation comes into effect....” 25. The Customs Code of the Republic of Moldova as amended on 24 April 2002 reads: “Section 51. The duty free outlet – a customs regime (regim vamal) which consists of the sale of goods under customs supervision in specially designed places situated in international airports and on board aircraft. Section 56. A duty free outlet may be closed down if the licence expires or if it is annulled or withdrawn in accordance with the law.” 26. The relevant provisions of Law No. 780 of 27 December 2001 read as follows: “Section 46 § 1. A law may have effect only during the period of its validity and may not have retroactive or prospective effect.” 27. The treaty between the United States of America and the Republic of Moldova concerning the encouragement and reciprocal protection of investment, signed at Washington on 21 April 1993, in so far as relevant, reads as follows: “... Article II. 3. (a) Investment shall at all times be accorded fair and equitable treatment, shall enjoy full protection and security and shall in no case be accorded treatment less than that required by international law. (b) Neither Party shall in any way impair by arbitrary or discriminatory measures the management, operation, maintenance, use, enjoyment, acquisition, expansion, or disposal of investments. For purposes of dispute resolution under Articles VI and VII, a measure may be arbitrary or discriminatory notwithstanding the fact that a Party has had or has exercised the opportunity to review such measure in the courts or administrative tribunals of a Party. (c) Each Party shall observe any obligation it may have entered into with regard to investments. ... Article III. 1. Investments shall not be expropriated or nationalized either directly or indirectly through measures tantamount to expropriation or nationalization ("expropriation") except: for public purpose; in a nondiscriminatory manner; upon payment of prompt, adequate and effective compensation; and in accordance with due process of law and the general principles of treatment provided for in Article II(3). Compensation shall be equivalent to the fair market value of the expropriated investment immediately before the expropriatory action was taken or became known, whichever is earlier; be calculated in a freely usable currency on the basis of the prevailing market rate of exchange at that time; be paid without delay; include interest at a commercially reasonable rate from the date of expropriation; be fully realizable; and be freely transferable.” 28. On 31 July 2001 the Commission on the Economy, Industry, Budget and Finance of the Parliament of the Republic of Moldova replied to an enquiry made by the applicant concerning the interpretation of Section 43 of the Law on Foreign Investment. In a letter signed by the Chairman of the Commission, Mr. N. B., it stated the following: “Subsection 1 of Section 43 provides that in the event of new legislation, changing the conditions of activity of a company with foreign investors which was created before the adoption of such new legislation, that company has the right to rely on the legislation in force on the day of its creation for a period of ten years calculated from the day of the entry into force of the new legislation. The above is a general rule, which refers to any legislation changing the general conditions of activity of a company owned by foreign investors. Paragraph 1 of Subsection 2 states the type of legislation not covered by the rule in Subsection 1, and which is applicable from the very moment of its entering into force. Paragraph 2 of Subsection 2 states the exceptions to Paragraph 1 of Subsection 2. These exceptions refer only to privileges (facilităţi), incentives (înlesniri), exemption of payments (scutiri de plăţi), etc., which were provided for in law when the company was set up. Accordingly, Paragraph 2 of Subsection 2 does not contradict the provisions of Paragraph 1 of Subsection 2, but makes clear that companies with foreign investors, which enjoyed customs, tax or other forms of privileges in accordance with the legislation of the Republic of Moldova formerly in force, have the right to enjoy those privileges for ten years after the entry into force of new legislation.” 29. In their observations of October 2005 the Government argued that the above letter had not been signed by the Chairman of the Commission on the Economy, Industry, Budget and Finance of the Parliament, but by an ordinary member of that Commission and that in any event, according to Moldovan legislation, it could not be considered an official interpretation of section 43 of the Law on Foreign Investment but merely an explanation. They requested the Court not to admit the letter as evidence. 30. The applicant company submitted for the Court's attention a judgment of the Court of Appeal of the Republic of Moldova in the case of Bimer S.A. versus the Ungheni Customs Office in which a similar matter had been decided. In that case the applicant had successfully challenged the closure of another duty free shop operated by it at the Ungheni customs point on the same grounds as in the present case. By its final judgment of 9 July 2002 the Court of Appeal found inter alia that the applicant company had been entitled to rely on the second paragraph of section 43 (2) of the Law on Foreign Investments and that the amended section 51 of the Customs Code could not have any bearing on the applicant company since according to section 46 of Law No. 780 it could not have retroactive effect on the duty free shops opened prior to its enactment. | 0 |
dev | 001-84438 | ENG | BGR | CHAMBER | 2,008 | CASE OF DODOV v. BULGARIA | 2 | Violation of Art. 2;No violation of Art. 2;Violation of Art. 6-1;Non-pecuniary damage - award | Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova | 5. The applicant was born in 1961 and lives in Sofia. 6. In May 1994 the applicant's mother, Mrs Stoyanova, sixty-three years old and suffering from Altzheimer's disease, was admitted to the Sofia nursing home for elderly persons. The home was located on a busy boulevard in Kniazhevo, a neighbourhood of Sofia. Mrs Stoyanova was placed in the hospital unit, which was staffed with several medical doctors and nurses. According to a medical opinion on Mrs Stoyanova's health at that time, her memory and other mental capacities progressively deteriorated. She needed constant supervision and the nursing home staff had been instructed not to leave her unattended. In the following months, the applicant visited his mother regularly and on occasion accompanied her for medical visits outside the nursing home. 7. During his visit on 2 December 1995, the applicant noticed spots on his mother's skin and reported it to the nurse on duty. 8. The applicant visited again on 4 December 1995, at about 6.30 p.m., but was informed that his mother was missing. Earlier that day his mother had been sent to consult a dermatologist outside the home, accompanied by Mrs V., a medical orderly. According to the explanation given to the applicant, upon their return, at around 11.30 a.m., the medical orderly had left Mrs Stoyanova alone in the yard and had not found her there several minutes later. The nursing home staff had looked for Mrs Stoyanova in the area but in vain. 9. The staff alerted the police approximately two hours after the incident. On the same day, and again on 11 December 1995, the police heard several witnesses to the events and recorded their statements. Some of them explained that they had searched the area immediately upon learning of Mrs Stoyanova's disappearance. 10. On 8 December 1995, Mrs Stoyanova was recorded as a person sought by the police in the region of Sofia and on 22 December 1995 her data were entered in the national list of missing persons. On 11 December 1995 the Sofia police issued a press release containing information about Mrs Stoyanova's physical appearance and an appeal to the public to report any relevant information. It appears that the description of Mrs Stoyanova's appearance contained errors. On 13 December 1995 the area in the proximity of the nursing home was searched unsuccessfully using a police dog. The police also checked the identity of patients admitted to psychiatric clinics during the relevant period. They also verified information according to which, in January 1996, a woman resembling the applicant's mother had spent a night in a monastery. In February 1996 an announcement was broadcast on national television. 11. In the days following his mother's disappearance the applicant himself did what he could to find her. He contacted all those who had last been in contact with her, published calls for witnesses in several newspapers and posted announcements carrying his mother's photograph. 12. The applicant's mother has not been found to date. In 1998 a District Court issued a decision declaring Mrs Stoyanova missing and appointed the applicant as her representative. 13. On 5 July 1996 the applicant filed a complaint with the Sofia District Prosecutor's Office alleging that the administrative and medical staff of the nursing home had been responsible for his mother's disappearance. 14. Nothing was done in the case until December 1997, despite the applicant's numerous complaints to all levels of the prosecuting authorities. 15. In December 1997 the District Prosecutor's Office opened a preliminary investigation into the matter. 16. The applicant participated actively in the ensuing proceedings. He made specific requests for the collection of evidence in respect of the events of 4 December 1995 and the alleged negligence on the part of the nursing home staff. In other submissions, often voluminous, he exposed at length his suspicion that his mother might have been abducted by a criminal gang trading in human organs. 17. On 19 March 1998, after having heard doctor G., the head of the medical staff at the nursing home, the investigator recommended that the investigation be discontinued. On 10 April 1998 the prosecutor followed this recommendation. The investigator and the prosecutor noted that it had not been uncommon in the practice of the nursing home for residents suffering from Alzheimer's decease to be sent for outside examinations by public transport, accompanied by a medical orderly. Also, it had been the normal practice to leave residents in the yard for several minutes, the time necessary to report to the doctor on duty, and then to accompany them to their rooms. The yard had been enclosed by a fence and staff had usually been present in the area. There had been a gatekeeper whose duty had been to check the identity of those entering. Having noted those facts, the investigator and the prosecutor stated that no criminal offence had been committed. 18. The applicant was not informed of the above decision. He became aware of it on 14 December 1998, when he visited the District Prosecutor's Office to inquire about the examination of his complaint. 19. On 8 January 1999 the applicant appealed, insisting that other witnesses be examined, such as the medical orderly who had accompanied his mother, the medical doctor who had sent his mother for an examination and the gatekeeper. 20. On 22 January 1999 the Sofia City Prosecutor's Office quashed the lower prosecutor's decision and referred the case back for renewed investigation. In June and August 1999 the file was transmitted to an investigator. The investigator heard the medical orderly and the gatekeeper. 21. On 12 April 2000 the prosecutor terminated the proceedings. He noted that Ms V., the medical orderly, had left the applicant's mother in the yard for two or three minutes as she had been asked to see a senior medical staff member. At that moment the applicant's mother had left and could not be found. The gatekeeper had stated that she had not seen Mrs Stoyanova. The prosecutor further noted that, in accordance with the relevant job descriptions, it was the medical orderlies' duty to accompany residents and that the gatekeeper's duties did not include responsibility for the residents' safety. On that basis the prosecutor concluded that “there [was] no indication that a staff member had exposed Mrs Stoyanova [to a danger] ...; and, as regards the [possible perpetrator's] mens rea, no wilful conduct could be proven.” The applicant appealed. 22. On an unspecified date the prosecutor's decision of 12 April 2000 was quashed and the case remitted for renewed investigation. In the ensuing investigation it was established that the gatekeeper had not been at the gate when the applicant's mother had been left alone there on 4 December 1995, as the she had left to have tea. 23. On 18 June 2001 the District Prosecutor's Office terminated the proceedings. The decision stated, inter alia: “Ms V. had left [the applicant's mother] alone in the yard, in dereliction of her duty to accompany and assist the seriously ill [residents]. However, her act did not constitute a criminal offence under Article 137 of the Criminal Code. That provision makes punishable the failure to assist a person in a helpless state, in circumstances of a real danger for that person's life, if the perpetrator is aware of the danger but fails to act. Ms V. stated that she had not thought that leaving [the applicant's mother alone] in the yard might result in a danger for her life, as the yard was closed by a fence and a gatekeeper was usually present. The gatekeeper had committed a serious dereliction of her duties as she had left the gate to have a tea. However, the gatekeeper is not criminally liable as she had not understood that [the applicant's mother] was in danger. Ms V. and the gatekeeper have undoubtedly committed disciplinary offences, which should have led to disciplinary sanctions but their behaviour is not criminally punishable.” 24. The applicant was not informed of the prosecutor's decision. Having learned about it, on 29 September 2001 he appealed to the Sofia District Court. 25. On 21 November 2001 the Sofia District Court quashed the prosecutor's decision and referred the case for renewed investigation, considering that there were inconsistencies in the prosecutor's reasoning and that not all relevant evidence had been collected. 26. After having heard additional witnesses, on 15 August 2003 the Sofia District Prosecutor's Office terminated the investigation. The prosecutor noted the following facts that had not been mentioned in earlier decisions: i) it had not been uncommon for elderly residents of the nursing home to scale the fence around the house; ii) there was a second entrance to the yard, used for service cars, which had usually been kept closed by means of a metal bar placed on the inner side of the portal; and iii) order in the nursing home and the duties of its staff were not clearly regulated. The prosecutor stated that in view of the absence of clear rules on the duties of staff in the nursing home it was not possible to draw conclusions as to the criminal liability of staff members. Also, the facts did not disclose a criminal offence under Article 137 of the Criminal Code. The prosecutor also stated that in any event the relevant statutory limitation period for the prosecution of the alleged perpetrators had expired. 27. On an appeal by the applicant, on 20 January 2004 the Sofia District Court upheld the prosecutor's decision of 15 August 2003 as the relevant statutory limitation period for the prosecution of the alleged perpetrators had expired on 4 June 2003. 28. In July 1996, the applicant complained to the prosecution authorities alleging that the police had not taken the necessary steps to search for his mother following her disappearance. The prosecuting authorities examined the matter and, by decisions of 1997 and 1999, refused to open criminal proceedings, considering that the police had acted diligently. 29. On 10 July 1996 the applicant brought before the Sofia City Court a civil action for non-pecuniary damages resulting from his mother's disappearance. He claimed damages from the Ministry of Labour and Social Care and the Sofia municipality (the institutions responsible for the nursing home) on the grounds that the employees of the nursing home had been negligent. He also sought damages from the Ministry of the Interior on the grounds that insufficient efforts had been made to find his mother. The applicant indicated the State Responsibility for Damage Act as the legal grounds for his action. 30. Throughout the proceedings before the Sofia City Court the applicant made voluminous written submissions and numerous requests for the collection of evidence. 31. At the first hearing, on 24 February 1997, the court could not proceed with the examination of the case as one of the defendants had not been summoned. The court ordered the applicant to indicate the full addresses of the Ministry of Labour and Social Care and of the Sofia municipality and stated that failure to comply could lead to discontinuation of the proceedings. 32. Hearings were held on 2 June 1997 and 19 January 1998. The Sofia City Court admitted several documents in evidence and refused to admit other documents. The applicant's request for several witnesses to be examined was refused as it had been unclear and related to facts whose establishment required documentary proof. 33. On 13 April 1998 the representative of the Sofia Municipality, which managed the nursing home, stated that the case did not fall to be examined under the State Responsibility for Damage Act. The representative of the Ministry of the Interior, one of the defendants, stated that the applicant's allegations in reality concerned not the Ministry as a whole but one of its regional units, the Sofia Directorate of Internal Affairs. The court decided to adjourn the hearing and instructed the applicant to submit proof of the locus standi of the Ministry of the Interior. 34. On an unspecified date the applicant requested that the Sofia Directorate of Internal Affairs be added to the action as a further defendant. The request was granted at the next hearing, on 16 October 1998, and the case was adjourned. The court instructed the applicant to submit another copy of the evidence already admitted to the file, to be transmitted to the new defendant. 35. At the hearing on 26 March 1999 the representative of the Sofia Directorate of Internal Affairs stated that the case did not fall to be examined under the State Responsibility for Damage Act as it did not concern the administrative powers of the police. The applicant sought to involve the nursing home as defendant. The court instructed the applicant to prove that the nursing home had a legal personality separate from that of the Sofia Municipality and adjourned the hearing. The court eventually found that the nursing home did not have separate legal personality. 36. The hearing held on 15 October 1999 was adjourned as the court issued a disclosure order against the Sofia police in respect of specific documents. The court rejected the applicant's request to summon witnesses, including the medical doctor on duty on the relevant day. The applicant had stated that the witnesses would testify about the daily regime in the nursing home, the identity of staff members responsible for accompanying the applicant's mother, her state of health on the relevant day and the exact sequence of events following her consultation with a dermatologist. The court held that such facts could only be established on the basis of documentary evidence. 37. On 4 February 2000 the hearing could not proceed owing to a defective summons. 38. The hearing listed for 5 May 2000 was adjourned owing to the prosecutor's absence. 39. On 6 October 2000 the court accepted some of the applicant's requests for the examination of witnesses and adjourned the hearing. 40. The next hearing was held on 2 February 2001. It was adjourned as the nursing home had not complied with a disclosure order in respect of specific documents. One of the summoned witnesses appeared but was not invited to testify. 41. The hearing listed for 4 May 2001 could not proceed as one of the defendants and a witness had not been summoned. The court fixed the next hearing for 12 October 2001. 42. On 12 October 2001 the court heard two witnesses, who were employees of the nursing home. The employee responsible for the relevant unit stated that the staff had been aware of the applicant's mother's illness and her complete lack of orientation. She had been on a “closed regime”. All staff had been aware that she had to be accompanied. Mrs V., the medical orderly who had accompanied the applicant's mother, testified that she had left her for a minute at the gate, next to the gatekeeper's booth. The gate had not been locked. However, the gatekeeper had been there at that time. Mrs V. further stated that she had told the gatekeeper to look after the applicant's mother and that the gatekeeper's statement that she had not seen the applicant's mother had been untrue. 43. The next hearing was on 15 March 2002. The court heard two witnesses and adjourned the examination of the case. One of the witnesses, the gatekeeper at the nursing home, did not appear. Eventually, the court decided to examine the case on the basis of the available material. The last hearing was held on 21 June 2002. 44. On 31 July 2002 the Sofia City Court delivered its judgment. It found that the applicant had no standing to bring an action under the State Responsibility for Damage Act since his mother had not been declared dead and, therefore, the applicant could not claim that he was her heir. The court also stated that it was unclear whether the State Responsibility for Damage Act applied as it only concerned damage resulting from unlawful administrative decisions or unlawful acts of the administration. 45. On 16 August 2002 the applicant appealed. He stated, inter alia, that it was for the courts to decide on the legal characterisation of his claim. Therefore, if the court considered that the claim fell to be examined under general tort law, it should examine it under general tort law. The applicant also reiterated that he was personally affected as he had suffered non-pecuniary damage as a result of his mother's disappearance. 46. By decisions of 21 and 30 January 2003, the Appellate Court, criticising the Sofia City Court's failure to collect relevant evidence, ordered the summonsing of witnesses and the production of other evidence in the appellate proceedings. 47. On 8 July 2003 the Appellate Court ordered the examination of a witness, the gatekeeper. 48. On 13 October 2003 the court heard the former gatekeeper, who had fallen ill, in her home, in the presence of the parties' representatives and a prosecutor. The former gatekeeper stated that on the relevant date she had not seen the applicant's mother. 49. On 15 January 2004 the Appellate Court delivered its judgment. It found that the State Responsibility for Damage Act only concerned damages resulting from administrative decisions or acts in the exercise of administrative functions. The applicant's claim did not concern such decisions or acts and fell to be examined under the general provisions of tort law. For that reason, the Appellate Court annulled the Sofia City Court's judgment and remanded the case for renewed examination by the Sofia City Court. 50. On 13 February 2004 the applicant filed a cassation appeal. On 25 May 2005 the Supreme Court of Cassation rejected the appeal. It found that the Sofia City Court had been wrong to examine the case under the State Responsibility for Damage Act. 51. On an unspecified date the case was transmitted to the Sofia City Court for fresh examination under general tort law. 52. On 7 July 2005 the Sofia City Court instructed the applicant to clarify his claims. 53. On 1 September 2005 the court found the clarifications made insufficient and gave him additional instructions. 54. On 1 February 2006 the Sofia City Court held a hearing. It issued disclosure orders against the nursing home and the Sofia Directorate of Internal Affairs and allowed the collection of other evidence. The hearing was adjourned until 14 June 2006. The proceedings are pending. 55. At the relevant time, the activities of nursing homes for the elderly and other social care homes were governed by regulations issued by the Ministry of Public Health (State Gazette no. 91 of 1965, amended by State Gazette no. 30 of 1987), in force until 1999, when new regulations replaced them. 56. In accordance with the regulations, nursing homes were funded and managed by the local municipal councils and were required to follow the standards established and instructions given by the Ministry of Public Health. It appears, however, that in 1994 nursing homes were placed under the management of the Ministry of Labour and Social Care. That was not reflected in the regulations. 57. The regulations set out the duties of the main staff categories – the director, medical doctors, nurses and administrative staff. On that basis, each nursing home adopted its own internal rules. The nursing home where the applicant's mother lived also had internal rules regulating in detail the organisation and distribution of tasks and duties among staff. In addition, the specific duties attached to each position were set out in job descriptions. For example, according to the job description for a gatekeeper, one of the main duties was control over the entry and exit of persons and vehicles. The nursing home also maintained a presence/absence table and daily instructions book. 58. Article 137 of the Criminal Code makes it a punishable offence to place a person in a situation endangering his life and, being aware of the situation, to fail to render assistance, despite the fact that the person concerned is unable to take care of himself owing to young or old age, illness, or any other state of helplessness. There is no reported case-law under that provision. 59. The State Responsibility for Damage Act provides, in its section 1, that the State shall be liable for damage occasioned by State bodies or State officials in the exercise of their administrative functions. For damage caused in other circumstances, the State and State bodies are liable under general tort law. According to the established practice in civil proceedings, the courts examine and determine the legal characterisation of claims submitted to them, without regard to the legal characterisation proposed by the plaintiff. The plaintiff must identify the disputed issue by clarifying the facts and the claim made but is under no duty to specify its characterisation in law. Even if the plaintiff indicates a legal characterisation of the claim, the courts are not bound thereby. They must make their own independent assessment (see, among many other authorities, the following judgments: 1208-98-V (Supreme Court of Cassation), 38-97-VII (Supreme Administrative Court) and 75-88- ОСГК (Supreme Court)). 60. According to section 10, unlike civil proceedings under general tort law, proceedings under the Act are conducted in the presence of a prosecutor and court fees are only payable following the entry into force of the final judgment. 61. In 2005, the Supreme Court of Cassation issued an interpretative decision on certain aspects of the implementation of the Act, noting the existence of disputes and divergent practice. One of the issues dealt with was the identity of the State administrative bodies having locus standi to answer claims under the Act. The Supreme Court of Cassation clarified that the action must be brought against the State body employing the relevant agent or, where that State body did not have separate legal personality, against the superior State organ meeting that condition. 62. By virtue of sections 8-19 of the Persons and Family Act, the courts may declare missing a person whose whereabouts have been unknown for more than one year. If the person is still missing after five years, the courts may declare the person presumed dead. | 1 |
dev | 001-109049 | ENG | MDA | ADMISSIBILITY | 2,012 | CASE OF BALAN v. MOLDOVA | 3 | Inadmissible | Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria | 1. The applicant, Mr Vasile Balan, is a Moldovan national who was born in 1956 and lives in Pănăşeşti. He was represented before the Court by Mr Lilian Osoian, a lawyer practising in Chişinău. The Government were represented by their Agent, Mr Vladimir Grosu. 2. The facts of the case may be summarised as follows. 3. On 28 September 2003 the applicant was accidentally injured by an individual, D., sustaining an injury to his left thigh bone. On an unspecified date the applicant instituted civil tort proceedings against D., seeking a court order obliging D. to pay him compensation for pecuniary damage. 4. On 26 November 2004 the Străşeni District Court ordered D. to pay the applicant 7,184 Moldovan lei (MDL) (the equivalent of 435 euros (EUR) in compensation for pecuniary damage and MDL 215 (EUR 13) for legal fees. This decision was final and an enforcement warrant was issued. It has not been enforced to date. 5. On 28 July 2009 the Court delivered the Olaru and others pilot judgment (see Olaru and Others v. Moldova, nos. 476/07, 22539/05, 17911/08 and 13136/07, 28 July 2009) in which it found, inter alia, that the problem of non-enforcement of domestic judgments awarding social housing to different categories of individuals disclosed the existence of a “systemic problem”. The Court ordered, inter alia, that the respondent State set up an effective domestic remedy which secures adequate and sufficient redress for non-enforcement or delayed enforcement of final domestic judgments (see Olaru and others, cited above, § 58 and point 4 of the operative part). 6. On 20 September 2011 the Moldovan Government informed the Court that on 1 July 2011 a new law (Law no. 87) entered into force, instituting a remedy against the problem of non-enforcement of final domestic judgments and against the problem of unreasonable length of proceedings. 7. On 29 September 2011 the Registry of the Court informed the applicant and all other applicants in the same position of the new remedy, asking whether they intended to make use of it within the six-month time-limit set by Law No. 87 (see paragraph 9 below). The applicants’ attention was drawn to the fact that according to Article 35 § 1 of the Convention, the Court may only deal with a matter after all domestic remedies have been exhausted and that failure to observe the above rule could constitute a reason for declaring the application inadmissible. 8. By a letter of 10 November 2011 the applicant informed the Court in response that he was not intending to use the new remedy because it was not effective. In particular, the applicant argued that even the denomination of Law no. 87 suggested that it offered a remedy only when a final judgment had not been enforced in a timely manner but not when the judgment had not been enforced at all. In the applicant’s view, the law did not provide for a mechanism to trigger a rapid enforcement of an unenforced final judgment. Moreover, the applicant submitted that it would be an excessive burden for him to be requested to go back to the domestic courts and attempt to exhaust the new remedy. 9. According to Law no. 87 anyone who considers him or herself to be a victim of a breach of the right to have a case examined or a final judgment enforced within a reasonable time is entitled to apply to a court for the acknowledgement of such a breach and compensation. According to section 1 of the law, it should be interpreted and applied in accordance with the national law, the Convention and the Court’s case-law. According to section 4 of the law the courts are obliged to deal with applications lodged under the law within three months. Section 5 of the law states that if a breach of the right to have a case examined or a final judgment enforced within a reasonable time is found by a court, compensation for pecuniary damage, non-pecuniary damage and costs and expenses have to be awarded to the applicant. Section 6 of the law simplifies the procedure of enforcement of judgments adopted under the law so as no further applications or formalities should be required from the part of the applicants. Under section 7 of the law all individuals who have complained to the European Court of Human Rights that their right to a trial within a reasonable time or to enforcement of a judgment within a reasonable time has been violated may claim compensation in domestic courts within six months of the entry into force of the new law, provided that the European Court has not ruled on the admissibility and merits of the complaint. 10. At the same time the Code of Civil Procedure was modified in such a manner as to reduce the number of instances of appeal from two to one and to waive court fees for such proceedings. | 0 |
dev | 001-21932 | ENG | AUT | ADMISSIBILITY | 2,001 | STRASSER v. AUSTRIA | 4 | Inadmissible | Nicolas Bratza | The applicant, Elfriede Strasser, is an Austrian national, born in 1947 and living in Salzburg. She is represented before the Court by Mr F. Hitzenbichler, a lawyer practising in Salzburg. The facts of the case, as submitted by the parties, may be summarised as follows. On 5 June 1989, the applicant filed an action with the Salzburg District Court (Bezirksgericht) requesting the repayment of rent and of capital expenditure (Investitionskostenaufwand) from her lessor. In these and the subsequent proceedings the applicant was represented by counsel. On 18 December 1991, the District Court dismissed the action. The applicant appealed against this decision on 6 February 1992. On 4 May 1992, the Salzburg Court of Appeal (Oberlandesgericht) referred the case back to the Salzburg District Court requesting that additional evidence be taken. As regards the capital expenditure the applicant appealed against this decision on 4 June 1992. On 31 August 1992, the Supreme Court dismissed the appeal and confirmed the Court of Appeal’s decision to refer the case back to the Salzburg District Court for the taking of additional evidence. The District Court held hearings on 16 March and 7 June 1993. An expert was appointed on 17 August 1993, who submitted his opinion on 28 September 1994. Following a change of the competent judge a further hearing was held on 2 May 1995 where the expert was present and orally explained his opinion. On 7 July 1995, the District Court, having regard to the submissions of the parties, the witnesses, and the experts, rendered a partial judgment granting the applicant’s claim for repayment of certain sums which she had paid in rent. Her claim for repayment of capital expenditure was admitted in substance, the precise amount remaining to be fixed after the taking of further evidence. On 27 November 1995, the Salzburg Court of Appeal dismissed the applicant’s appeal as far as the claim for capital expenditure was concerned. The defendant filed a further appeal on points of law on 6 February 1996. Thereupon, on 25 October 1996, the Supreme Court confirmed the Court of Appeal’s decision as to the claim for repayment of rent, but agreeing with the defendant dismissed the applicant’s claim for compensation for capital expenditure finding that the Court of Appeal had wrongly applied the law in this respect. The decision was served on 2 December 1996. Section 91 of the Courts Act (Gerichtsorganisationsgesetz), which has been in force since 1 January 1990, provides as follows. "(1) If a court is dilatory in taking any procedural step, such as announcing or holding a hearing, obtaining an expert’s report, or preparing a decision, any party may submit a request to this court for the superior court to impose an appropriate time-limit for the taking of the particular procedural step; unless sub-section (2) of this section applies, the court is required to submit the request to the superior court, together with its comments, forthwith. (2) If the court takes all the procedural steps specified in the request within four weeks after receipt, and so informs the party concerned, the request is deemed withdrawn unless the party declares within two weeks after service of the notification that it wishes to maintain its request. (3) The request referred to in sub-section (1) shall be determined with special expedition by a chamber of the superior court consisting of three professional judges, one of whom shall preside; if the court has not been dilatory, the request shall be dismissed. This decision is not subject to appeal." | 0 |
dev | 001-105448 | ENG | GBR | ADMISSIBILITY | 2,011 | SHEIKH v. THE UNITED KINGDOM | 4 | Inadmissible | Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva | 1. The applicant, Miss Anal Sheikh, is a British national who was born in 1960 and lives in Stanmore. She was not legally represented. 2. The applicant is a solicitor who joined the firm Ashley & Co. as an assistant solicitor in 1987. In 1993 she became the sole proprietor and practitioner in the practice. Between 1987 and 2005, she was the subject of sixteen successful complaints to the Law Society, of which five related to overcharging. 3. In February 2004, the Law Society commenced an inspection of and investigation into Ashley & Co. On 16 February 2004 the head of forensic investigations at the Law Society wrote to the applicant stating that the books of Ashley & Co. were to be investigated and that officers of the Law Society would be attending her office for that purpose. The letter said that it was not the policy of the Law Society’s Compliance Board to authorise staff to disclose the reasons for inspections. The applicant was therefore not advised of the reasons for the inspection. 4. Two different departments of the Compliance Board were involved in the investigation: forensic investigations, which dealt with concerns about compliance with the Solicitors’ Accounts Rules; and multiple complaints investigation, which dealt with all other complaints. The inspection commenced with a visit to the applicant’s office on 23 February 2004, which lasted around two or three days. Five further visits took place, the last on 21 July 2004. The Law Society’s inspectors from the multiple complaints investigation department also wrote six lengthy letters to the applicant asking for further information in connection with the investigation. Although the applicant co-operated with the investigators in attendance at her offices, she did not reply in writing to any of the letters. 5. Following the final visit, the investigative officers compiled a report on the applicant’s practice, intended for internal consideration within the Law Society, in order to determine whether any of the powers contained in the Solicitors Act 1974 (“the 1974 Act”) should be exercised in relation to Ashley & Co. The report (“the FI Report”) was prepared in the form of a letter dated 22 November 2004 from the head of the forensic investigations department to the head of investigation and enforcement in the Law Society’s Compliance Directorate. The FI Report was 33 pages long, with between 70 and 80 pages of appendices. 6. On 10 December 2004 a member of the multiple complaints investigation department wrote a 19-page letter to the applicant. She did not enclose a copy of the FI Report at that time. The letter set out allegations of professional failures by the applicant and invited her to reply by 4 January 2005. The allegations related generally to alleged failures to comply with provisions of the Solicitors’ Practice Rules (see paragraph 68 below). 7. The applicant, despite being reminded in the letter that she had a professional obligation to reply to the Law Society, did not reply. 8. On 23 December 2004 the Law Society wrote to the applicant again, this time enclosing the FI Report. She was asked to comment on the report by 10 January 2005. A covering letter contained several allegations of breaches of the Solicitors’ Accounts Rules (see paragraphs 66-67 below) and invited comments on these allegations. In addition, the letter stated that the investigators were satisfied that the applicant had failed to comply with provisions of those rules, and that therefore the power to intervene (essentially, to take control of the applicant’s practice – see paragraphs 55-61 below) was exercisable. 9. On the evening of 23 December 2004 the applicant received a telephone call from one of the investigators telling her that there would be a large and important parcel waiting for her at her office the next day and that she should collect it and read it in order to reply by 10 January 2005. The applicant told the investigator that she was going on holiday with her mother to India the following day and that she could not deal with a large communication from the Law Society by 10 January 2005. She accordingly asked for an extension of time. No extension was granted. The applicant went on holiday without collecting the parcel. Upon her return, the parcel was waiting for her. However, she did not open it. She subsequently explained that the reason she did not open it was “because she could not deal with it”. 10. On an unknown date, the FI Report was forwarded to the Adjudication Panel of the Compliance Board (“the Panel”). It was accompanied by a recommendation that stringent and immediate conditions imposed on the applicant’s practising certificate would be sufficient to protect the public and the conclusion that intervention was not necessary, although the matter was “finely balanced”. 11. On 17 February 2005 the applicant received funds in the sum of GBP 254,000 in respect of a mortgage on her own home. As she intended to invest the funds in a client’s business, she instructed her secretary to pay the funds into the firm’s client account, intending to deal with the necessary paperwork later. However, her secretary instead credited the firm’s office account. The applicant was not made aware of the error. 12. The Panel met on 17 February 2005. Following consideration of the FI Report, the Panel decided that there should be an intervention in the applicant’s practice. It adopted several resolutions, the most significant of which being: “1. The Panel were satisfied that grounds for intervention existed under paragraph 1(1)(a)(i) of Part I of Schedule 1 Solicitors Act 1974 (as amended), namely that the Panel were satisfied that they had reason to suspect dishonesty on the part of Ms Anal Sheikh practising as Ashley & Co ... in connection with her practice as a solicitor. 2. The Panel were also satisfied that grounds for intervention existed under paragraph 1(1)(c) of Part I of Schedule 1 Solicitors Act 1974 (as amended) namely that Ms Anal Sheikh failed to comply with the Solicitors’ Accounts Rules. 3. The Panel balanced the need to exercise powers of intervention in order to protect the public and the serious consequences of intervention for a solicitor. The Panel were satisfied that it was necessary to exercise powers of intervention in this case in view of the nature of the matters identified in the Forensic Investigations Report dated 22 November 2004. 4. The Panel were further satisfied that it was necessary to exercise powers of intervention in order to protect the public. 5. The Panel RESOLVED to intervene into Anal Sheikh’s practice at Ashley & Co ...” 13. No particulars were given in the resolution of why the Panel suspected dishonesty on the part or the applicant or why it concluded that she had breached the Solicitors’ Accounts Rules. 14. The Council of the Law Society also passed resolutions providing that the applicant’s practice monies vest in the Law Society and that the applicant be required to deliver practice documents to its nominated agent. In accordance with the applicable legislation, the applicant’s practising certificate was automatically suspended (see paragraph 61 below). 15. That afternoon a representative of the Law Society called Ashley & Co. to speak to the applicant but she was out of the office. He faxed a copy of the intervention resolution to her at her office, informing her that the intervention team would arrive at 10.30 the next morning and that an intervention had been ordered as a result of breaches of the Solicitors’ Accounts Rules, with reference to paragraphs 6 and 9 of Schedule 1 to the 1974 Act (see paragraphs 58-59 below). 16. On the morning of 18 February 2005 the applicant did not go to her office as she had client meetings scheduled. However, her secretary called her to inform her of the fax and the Law Society’s pending visit. According to the applicant, she was not made aware that an intervention had been ordered. She asked her secretary to reschedule the visit as she did not intend to be in the office that day. Her secretary telephoned the Law Society to relay the message. She was advised that it was imperative that the applicant attend the meeting that morning and that her practising certificate had in any case been suspended. She then called the applicant back and explained the position. The applicant made arrangements to go immediately to her office. 17. At some point during the second phone call, or possibly during a third phone call with her secretary prior to arriving at the office, the applicant instructed her secretary to transfer the GBP 254,000 from the client account to her personal bank account and to sign the transfer form on the applicant’s behalf. The secretary effected the applicant’s instructions, with the result that the client account was debited in the sum of GBP 254,000, leaving it heavily overdrawn. 18. In due course the intervention team arrived at the applicant’s office to commence the intervention. The applicant was there to meet them and asked for, and was given, time to take legal advice before the intervention proceeded. She instructed a well-known firm of solicitors. It appears that they did not recommend that she take immediate action to halt the intervention but advised her to exercise her statutory right of challenge under the 1974 Act (see paragraph 62-63 below). She permitted the intervention team to have access to the premises. She had still not opened the parcel sent to her by the Law Society on 23 December 2004 (see paragraphs 8-9 above). 19. On 25 February 2005 the applicant issued an application to the High Court to request the withdrawal of the intervention under paragraphs 6(4) and 9(8) of Schedule 1 to the 1974 Act (see paragraphs 62-63 below). Realising that it could be some time before the matter was heard by the High Court, the applicant’s solicitor wrote two letters to the Law Society proposing measures to allow the applicant to continue to have conduct of a limited number of specific matters on conditions intended to protect clients against the risk perceived by the Law Society to exist. One of the conditions was that she would not issue any bills to clients. The Law Society refused to accommodate the requests; no reasons were provided for the refusal. However, in accordance with usual practice where a challenge to an intervention is lodged with the High Court, the Law Society put in place arrangements to mitigate the damage to the goodwill in the practice pending the outcome of proceedings. An experienced firm of solicitors took possession of the practice and files and passed to other solicitors only those files requiring immediate action which the applicant herself was not able to take, which amounted to just over ten per cent of her files and the client and office accounts were frozen. 20. On or about 7 March 2005 the applicant sought case management directions. In particular, she sought directions for a speedy trial. The Law Society did not oppose the request. The applicant also sought, by way of interim relief, an order for the restoration of her practising certificate. However, the application was incompetent as it ought to have been made, in the first instance, to the Law Society itself (see paragraph 64 below). 21. On 9 March 2005 the application for case management directions came before the court, which made an order for an expedited trial. It also considered the arrangements put in place by the Law Society to mitigate the effect of the intervention pending the resolution of the applicant’s challenge (see paragraph 19 above). The applicant did not challenge these arrangements. 22. The applicant subsequently applied to the Law Society under section 16(3) of the 1974 Act to have her practising certificate restored (see paragraph 64 below). The outcome of the application was that the Law Society granted the applicant a new practising certificate for 2004/2005 with conditions to protect her clients, namely that she did not act as sole principal, as a partner or as a salaried partner. She was therefore unable to resume the Ashley & Co. practice. 23. The application for withdrawal of the intervention came before the High Court on 4 May 2005 and the trial lasted eight days. On 9 June 2005, Park J directed that the intervention be withdrawn, reserving his full judgment until 1 July 2005. Following Park J’s notification of his decision on 9 June 2005, the intervention was ordered to be withdrawn by order of the same date. By order of 16 June 2005, all the conditions, apart from one preventing the applicant from seeking the payment of fees for probate work without the prior approval of the Law Society, were lifted from the applicant’s practising certificate as of 16 June 2005. 24. In his subsequent written judgment, Park J explained that he had chosen to announce his decision before handing down judgment because every day which passed was potentially damaging to the applicant even if her application succeeded in the end. In short, Park J’s reasons for ordering the withdrawal of the intervention were that he did not think that there was reason to suspect the applicant of dishonesty and that while he accepted that there had been some breaches of the Solicitors’ Accounts Rules and other aspects of the firm’s practice about which the Law Society could legitimately feel concern, he did not think that they were serious enough to merit intervention. 25. Park J noted that where a decision to intervene resulted in the vesting of practice monies in the Law Society, the delivery up of practice documents and the suspension of the solicitor’s practising certificate, the consequences were very severe for the solicitor and, in the case of a sole practitioner like the applicant, it effectively meant the total destruction of the practice. However, he accepted that the powers accorded to the Law Society under the 1974 Act were both valuable and desirable to ensure public confidence in the honesty of solicitors and to ensure a quick and effective response in cases where there were grounds to suspect dishonesty on the part of a solicitor. He noted that it was possible, in the applicant’s case, that the intervention action which the Law Society had already taken might already have done substantial damage to the practice of her firm, but considered that such a consequence might be a risk which had to be accepted in the wider interests of preserving public confidence in the solicitors’ profession as a whole. However, he criticised the unexplained rejection by the Law Society of the applicant’s solicitor request that she be allowed to continue some limited practice under conditions (see paragraph 19 above). 26. Concerning the scope of the court’s review under paragraphs 6(4) and 9(8) of Schedule 1 to the 1974 Act (see paragraphs 62-63 below), Park J considered that the jurisdiction of the court was not to be exercised on grounds analogous to judicial review. Accordingly, he was not required to limit his consideration of the application to the question whether the notice was one which no reasonable body in the position of the Law Society could have decided to serve but was able to decide himself whether the notice of intervention should be allowed to stand. In this respect, the Law Society’s own view that the circumstances merited intervention was a relevant factor for consideration. Park J also emphasised that the relevant legislation referred to a “suspicion” of dishonesty and it was therefore not necessary for a positive finding of dishonesty to be made. Finally, the court was not limited to reviewing the evidence before the Law Society at the time when the decision was made to intervene but could consider the whole of the evidence, including incidents or discoveries post-intervention, in deciding whether to withdraw the intervention. In this regard, he noted: “...[the applicant] acknowledges that she had been deficient in providing explanations to the Law Society’s officers in the course of the inquiries which preceded the decision to intervene. She can, however, put before me evidence which she failed to present to the Law Society at the earlier stage, and submit (as Mr Treverton-Jones has done on her behalf) that, even if the Law Society’s Panel which decided to intervene could understandably have thought that there was reason to suspect dishonesty given the absence then of answers from her to questions about matters which had caused the Society’s officers concern, the position now is different: I should, taking account of her evidence, conclude that there is no reason to suspect dishonesty in any respect which could rationally justify the drastic (and effectively terminal) step of intervention.” 27. He then went on to consider the events which preceded the intervention. Regarding the letter of 10 December 2004, he noted that the letter requested comments on eight different alleged failures. In general they were categorised as failures to comply with particular provisions of the Solicitors’ Practice Rules and with associated principles in the Guide to the Professional Conduct of Solicitors. He continued: “As far as I can see there is no reference to the Solicitors’ Accounts Rules in it, nor do I find anything which could be regarded as an allegation of actual dishonesty on [the applicant’s] part.” 28. Similarly, Park J observed that he could not find any specific allegation of dishonesty in the letter of 23 December 2004 enclosing the FI Report. 29. Park J noted the absence of any details as to why the Panel had reached its conclusions and ordered the intervention, saying: “... In this particular case I consider that the absence of particulars causes considerable difficulty, especially as regards the finding of suspected dishonesty. What precisely was the dishonesty, and what precisely were the grounds which raised a suspicion of it? The Panel does not say. This is, I understand, in line with standard practice for Law Society Panels. In normal cases (which in my opinion this case is not) the absence of particulars in a Panel’s finding of grounds to suspect dishonesty may not particularly matter, because the nature of the dishonesty and of the grounds of suspicion is perfectly obvious to anyone ... In all the earlier cases of interventions which I was shown the alleged dishonesty was clear for all to see. Similarly, in so far as the intervention may also have been founded on breaches of the Solicitors’ Accounts Rules, the breaches were equally obvious, and almost always consisted of solicitors either not having client accounts at all ... or taking money off client account and using it for private purposes or for their own professional purposes (like reducing the office overdraft or paying the office rent) in circumstances where the taking of the money was prohibited ... Furthermore as far as I can ascertain, although the members of the Panel in Miss Sheikh’s case presumably did know what sort of dishonesty they suspected and what their grounds for suspecting it were, nobody else in the Law Society knew. The Law Society officers [involved in the investigation and preparation of the FI Report] who gave evidence before me ... did not know ... This has caused substantial difficulties in the case, and in my view has had an unfortunate effect on the nature of the proceedings. Miss Sheikh did not know any detail of what sort of dishonesty was being alleged against her, and in her first witness statement could do little more on this aspect of the case than to say that she utterly refuted any suggestion that there was reason to suspect dishonesty on her part. She has always accepted that she failed to reply to correspondence and that there have been some technical infringements of the Solicitors’ Accounts Rules, but she denies any kind of dishonesty. Since she does not know what specific kind of dishonesty the Panel suspected, she has great difficulty in doing more than making a general denial. Her legal team in this case ... could only speculate as to the case which they had to meet. In a criminal case an indictment which merely charged that there was reason to suspect dishonesty would never survive. The same would apply to a pleading in a civil claim.” 30. He noted that even the Law Society’s legal team were unaware of the reasons for the Panel’s suspicion of dishonesty and concluded: “In the circumstances it seems to me that [counsel for the Law Society] have had to do the best they can to find in the extensive documentation in the case any features which, as it seems to them, might have given rise to a suspicion of dishonesty, to present them to me as giving rise to such a suspicion, and to cross-examine Miss Sheikh and Mr Sampat [an Ashley & Co. staff member] in a way which entails alleging dishonesty in numerous different respects.” 31. He noted that the applicant’s case had not come before the court quickly, and that it had not proceeded speedily. He continued: “... I may be wrong, but I think that it was primarily the Law Society which had problems with an earlier commencement [of the trial].” 32. As to the breaches of the Solicitors’ Accounts Rules, Park J noted that, unlike in virtually all other cases of interventions of which he was aware, there was no evidence that any client money had gone missing. Further, regarding the allegations of dishonesty, he observed that the applicant had been searchingly cross-examined for a little more than two days and that she had not remotely struck him as the “dishonest, grasping, incompetent” implied by the Law Society’s multiple attacks upon her. 33. Park J expressed doubt at the proposition by counsel for the Law Society that, once intervention had been commenced by the Law Society, the subsequent review by the High Court of whether to withdraw the intervention could take into consideration all matters relating to the solicitor’s conduct, even those which, under the 1974 Act, did not justify intervention. He concluded: “... I accept that I should look at the evidence as it exists when the case is presented to me, and that I am not limited to considering only the materials which were before the Panel when, some months previously, it resolved to intervene ... Thus, if there is new evidence of the existence of reasons to suspect dishonesty or of breaches of the Solicitors’ Accounts Rules, I can certainly take account of it. It is far from clear, however, that I should take account of new evidence (or for that matter old evidence) of alleged shortcomings on the part of Miss Sheikh which do not bear on any suspicion of dishonesty or on breaches of the Solicitors’ Accounts Rules ... [A] Panel cannot resolve that a practice be intervened upon on the basis of a general opinion that the practice is unsatisfactory, and that it will be in the public interest for the Law Society to intervene. That being so, I am unconvinced that a general opinion of that nature should carry any substantial weight when it comes to deciding whether the court should order an intervention to be withdrawn. Suppose that it had appeared to the Panel that there was no reason to suspect dishonesty and that, although there had been breaches of the Solicitors’ Accounts Rules, they were not themselves of the sort which could justify the drastic step of intervention. Could the Panel nevertheless have decided that the Law Society should intervene in Ashley & Co because there were other aspects of the firm’s practice which the Panel considered to be unacceptable? I think not. Is it, therefore, any different at the stage when the court is considering whether an intervention should be withdrawn? Again, I think not ...” 34. Park J considered in some detail the matters raised in the FI Report. He concluded in relation to each that they were insufficiently serious to merit intervention. He further considered the matters raised by the Law Society as regards the applicant’s alleged dishonesty and concluded that the evidence before him supported no such suspicion. He noted that some of the matters to which the Law Society referred might be relevant to any disciplinary proceedings which could be taken against the applicant, but were not relevant to the question of intervention. As to the failure of the applicant to respond to the Law Society’s letters, Park J noted that the letters were very demanding and that the applicant was a busy sole practitioner with clients to look after and without much in the way of high grade supporting staff in her office. He considered that she would have been unable to deal with the letters in the detail which the Law Society required without neglecting her current clients and risking failing in her duty to them. 35. In relation to the pre-intervention material put before him, Park J concluded: “On the basis of matters as they stood before the intervention (and taking account of evidence which I had of such matters, whether the Panel had it or not), I believe that the intervention should be set aside.” 36. He reviewed the events of 17 and 18 February and accepted the applicant’s account that she had been unaware that an intervention would take place. He continued: “... To an extent her lack of awareness of what might happen was her own fault. I have described ... how she never even opened the parcel which had arrived at the office on 24 December 2004 and which contained, among other things, the Law Society’s letter of 23 December. If she had opened the parcel and read that letter it would have put her clearly on notice that an intervention was a possibility.” 37. In respect of post-intervention issues, the only matter considered to be of significance by Park J was the transfer, on the morning of the imposition of the intervention, of GBP 254,000 from the client account to the applicant’s personal bank account (see paragraph 17 above). Park J found that the applicant was not aware, at the time when she instructed the transfer, that there had been an intervention. However, he accepted that she gave the instructions to her secretary because of a general feeling that she did not want the money to be in the client account when the Law Society arrived. He continued: “The more general point is that I cannot find it in me to condemn Miss Sheikh for wanting to get the money out of an Ashley & Co bank account before the Law Society arrived. She did not (in my view) know that the Law Society was coming to effect an intervention into her practice, but after the second telephone call from [her secretary] she apprehended that something of a serious nature was quite likely to happen, and she must have felt deep concern about what might happen to this large sum of money which she had borrowed personally only the day before. It must have been a desperate anxiety to her that, because the money had gone into an Ashley & Co bank account, it might become entangled with the problems which it seemed that she was going to have with the Law Society. Feelings of that nature would surely have been enhanced by the reflection that the money might be regarded as still really being hers and not as belonging to a client yet. She was of course under the erroneous impression that the money was being held in the firm’s client account ... She did not realise that the money was in fact in the firm’s office account, but I comment that it was not appropriately held there. The £254,000, if (as I suspect was correct) it did not yet belong to Red River but still belonged to Miss Sheikh , did not belong to her in her capacity as the sole proprietor of the practice. On 18 February the £254,000 did not really have anything to do with the practice. She had just borrowed it on a mortgage of her private house, and it was intended to be invested in a commercial project in which she ... would be participating as an investor and not in her solicitor capacity. In retrospect Miss Sheikh might have been better advised just to leave the money alone and wait fatalistically to find out what was going to happen to it, but I can well understand that it did not seem that way to her at the time. I repeat that I cannot find it in me to say that wanting to remove the money from (as she thought) the Ashley & Co client account was so objectionable a thing that I should leave in place an intervention upon her practice which otherwise I would direct to be withdrawn.” 38. The applicant’s remaining files and all monies from the client and the office accounts, plus interest, were subsequently returned to her. She resumed practice at Ashley & Co. 39. On 5 April 2006 the Law Society was given permission to appeal to the Court of Appeal on three grounds: first, that Park J had inappropriately assessed whether the applicant had in fact been dishonest, rather than addressing whether the statutory test of suspicion of dishonesty had been met; second, that Park J had applied too high a threshold as regards whether the breaches of the Solicitors’ Accounts Rules could justify an intervention; and third, that, in exercising his discretion as to whether to withdraw the intervention, Park J had wrongly failed to take into account other matters relating to the applicant’s conduct which were not directly related to her alleged dishonesty and breaches of the Solicitors’ Accounts Rules. The judgment granting leave noted that the Law Society was not minded to re-intervene in the applicant’s practice at that time but was considering disciplinary proceedings against her. The appeal was heard between 3 and 5 July 2006. 40. On 23 November 2006, the Court of Appeal handed down its judgment. As regards the scope of the appeal proceedings, Chadwick LJ, giving judgment for the court, noted: “The Law Society has made it clear that, whatever the outcome of these appeals, it does not seek to re-intervene in [the applicant’s] practice on the basis of the intervention notices served in February 2005. Its concern is that the findings of fact made by the judge – almost all of which it regards as wrong – present serious difficulties in relation to the exercise of its powers to impose conditions on [the applicant’s] practising certificate. Put shortly, the Society fears that those findings of fact, if not reversed, make it impossible for it to impose the conditions on [the applicant’s] practising certificate which it considers necessary for the protection of the public. It is concerned, also, that it may not be able to go behind those findings of fact in disciplinary proceedings against [the applicant] in which it may wish to allege actual dishonesty. And, further, the Society is concerned that the judge’s approach to the issues which were before him in this case gives rise to uncertainty as to the proper scope of the summary procedure which Parliament must have intended should follow from an application to withdraw under paragraphs 6(4) and 9(8) of schedule 1 to the 1974 Act: uncertainty which, unless resolved, will lead to problems in future cases ...” 41. Chadwick LJ considered the various matters relied upon by the Law Society before the High Court as evidence that continued intervention was justified. As regards the allegations of breaches of the Solicitors’ Accounts Rules, he reached different conclusions from Park J as to the honesty of the applicant in her dealings with the client account. In particular, he commented on the failure of Park J to deal with certain anomalies as regards the applicant’s charging practice: “For my part, I find it surprising that the judge was able to attribute [certain aspects] of the Society’s complaint ... to ‘mistakes’ and ‘an error of judgment’ without a more rigorous analysis of the material which had led the Society to take the view that those matters gave rise to suspicion of dishonesty. It is, I think, difficult to avoid the conclusion that he did so because he had already persuaded himself, from his observation of Miss Sheikh and [her employee] as witnesses, that they were not dishonest; so that matters which, objectively, were capable of giving rise to suspicion of dishonesty had to be explained in a way which avoided a finding of dishonesty ...” 42. He further highlighted the failure of Park J to explain why, in relation to one particular matter, he had rejected the Law Society’s submission that client funds had indeed gone missing contrary to his general finding that the applicant’s case did not involve missing client funds. Chadwick LJ pointed to various other aspects of the Law Society’s complaints concerning the applicant’s conduct in respect of client funds and charging which, in his view, had not been fully addressed by Park J. He referred to Park J’s observation that a client benefitted from clear protections, notably the possibility of requiring the solicitor to obtain a remuneration certificate from the Law Society where he considered that he was being overcharged by his solicitor, and that intervention was therefore not required in such circumstance. He concluded: “The Law Society submits that that is too narrow a view of the circumstances in which it may be appropriate to use its intervention powers. It points out that an honest solicitor should be endeavouring to charge no more than he (or she) believes is due ... I agree: a fortiori where the solicitor, as sole executor, is himself (or herself) the client [as in a number of the examples in the applicant’s case], it seems to me that evidence of persistent and deliberate overcharging in probate matters of that nature might well justify intervention on the basis of suspected dishonesty.” 43. As to the transfer of the GBP 254,000 (see paragraph 17 above), Chadwick LJ agreed with Park J that at the time she ordered the transfer, the applicant did not know of the intervention. However, like Park J, he found that she had, nonetheless, realised that the impending visit of Law Society officials was more serious that just another inspection. He concluded that in the circumstances, the applicant must have known that intervention was a real possibility, and that she had for that reason transferred the money. He further considered that there was no evidence to allow Park J to conclude whether beneficial ownership of the money remained with the applicant. In light of the instructions that she had given to her secretary, Chadwick LJ considered that she could not claim that she thought it was still her money. That the applicant had requested her secretary to sign the bank transfer form on her behalf was a clear attempt to deceive the bank. In the circumstances it was not difficult to understand why the Law Society took the view that the incident gave rise to particular concern as to the applicant’s fitness to carry on her practice. He noted: “... What took place is a significant demonstration of the way in which this solicitor was prepared to act in the face of what she must have seen as an impending (if not actual) crisis in her practice. She was prepared to act in a way which – as she must have appreciated and intended – involved a deception.” 44. Chadwick LJ disagreed with Park J’s approach to the question whether the intervention notices should be withdrawn. In his view, the correct approach was to look at the matter as a whole and in this regard, the conduct of the solicitor at the time of, and immediately following, intervention could well affect the way in which pre-intervention conduct should be viewed. In the applicant’s case, her conduct in relation to the GBP 254,000 demonstrated that she was willing to deceive and Park J ought to have asked himself whether his impression of her as a witness required re-evaluation in the light of her willingness to deceive in relation to that transfer. 45. Chadwick LJ referred to the distinction between an application to the court to withdraw the intervention (as in the present case) and a challenge to the use by the Law Society of its intervention powers: “Plainly, if there is a challenge to the exercise of the intervention powers, the court will need to ask itself whether the grounds under Part I of schedule 1 to the 1974 Act upon which the Society relied at the time of the resolution to intervene were made out on the basis of the information available (or, perhaps, reasonably available) to the Society at that time. If that question is answered in the negative, then (as it seems to me) the resolution under paragraph 6(1) is of no effect and notices served under paragraph 6(3) or 9(1) are ‘fundamentally flawed’ ... That is because the powers under Part II of schedule 1 are exercisable only in circumstances within Part I. So, if the Society is to exercise intervention powers in reliance on paragraph 1(1)(a), the Council must have reason to suspect dishonesty at the time when it passes the resolution under paragraph 6(1) or serves the notice under paragraph 9(1). Cases in which there is a challenge to the validity of the resolution under paragraph 6(1) or to the service of intervention notices are rare. Where the Society relies on paragraph 1(1)(a) of schedule 1, the solicitor may well find it impossible to contend that, on the material available to the Society at the time when the resolution was passed and the intervention notices served, the Society did not have reason to suspect dishonesty. That was the position in the present case. And it is pertinent to keep in mind that, in many cases (as in the present case), the Society will rely, in addition, on paragraph 1(1)(c) (breaches of the accounts rules) and will have given a notice under paragraph 1(2) – thereby providing an opportunity for challenge in advance of intervention. In such cases a challenge to the validity of the resolution under paragraph 1(1) or to the service of intervention notices on the grounds that the condition in sub-paragraph (a) was not met will serve little purpose: the Society will be able to rely (in relation to validity) on sub-paragraph (c). In such cases the solicitor will usually focus his (or her) submissions on seeking to persuade the court that, whether or not the Society had reason to suspect dishonesty on the material available to it at the time, the court should hold, on the basis of additional material deployed at the hearing of the application under paragraph 6(4), that suspicion of dishonesty has been dispelled. That, again, was the position in the present case. What is not open to doubt is that, absent a challenge to the validity of the resolution under paragraph 6(1) of schedule 1 or to the service of intervention notices, the single issue for the court on an application under paragraphs 6(4) or 9(8) is whether the notices should be withdrawn ...” 46. The sole issue for the court, therefore, in the present case being whether the intervention notices should be withdrawn, Chadwick LJ noted: “In addressing that question ... the court must, indeed, weigh the risks of re-instating the solicitor in his (or her) practice against the potentially catastrophic consequences to the solicitor (and the inconvenience, and perhaps real harm, to his or her existing clients) if the intervention continues. In weighing the risks of re-instatement the court must have regard to the views of the Law Society as the professional body charged by statute with the regulation of solicitors ... and as the body whose members are obliged, through the compensation fund, to underwrite those ... In a case where the Society has taken, and continues to take, the view that there are reasons to suspect dishonesty on the part of the solicitor, the court may well need to address those reasons in the context of weighing the risks of re-instatement; although ... that will not always be the case. It is important to keep in mind that (in cases where there is no challenge to the validity of the resolution or to the service of the notices) there is no free-standing requirement for the court to decide whether there are grounds for suspecting dishonesty; a fortiori, no requirement for the court to decide whether the solicitor is or has been dishonest. The issue arises (if at all) in the context of deciding whether the intervention needs to continue.” 47. Accordingly, all matters could be taken into account in reaching the decision whether to withdraw the intervention, including conduct falling outside the statutory grounds for its original imposition, such as the applicant’s poor regulatory history and her failure to respond to proper requests for information from the Law Society. Chadwick LJ considered that Park J had erred in seeking to determine whether or not the applicant was dishonest as the question to be decided was simply whether the suspicion of dishonesty had been dispelled, and Chadwick LJ was satisfied that it had not, bearing in mind the serious inconsistencies between the applicant’s oral evidence at the trial on the one hand and the answers which she had given at interview, the explanations in her witness statements and the documentary material on the other hand. 48. Finally, as regards the Law Society’s criticism of Park J’s approach to whether intervention should continue, Chadwick LJ found: “... First, as it seems to me, past regulatory history is plainly relevant to a consideration whether it is realistic to think that future compliance can be enforced by regulatory powers short of intervention. The Society was entitled to take the view that the history of successful complaints in relation to Miss Sheikh’s conduct of probate matters demonstrated that there could be no basis for confidence that (absent intervention) her practice in relation to such matters could be altered by tighter regulation. Second, on an application under paragraph 6(4) of schedule 1, the court is required to have regard to all matters before it: it is not confined to the grounds which led to the exercise of the intervention powers ... As I have sought to explain, the court’s task on an application under paragraph 6(4) of schedule 1 is not constrained by the statutory grounds on which the Society can exercise intervention powers. Third, on an application under paragraph 6(4) which does not include a challenge to the validity of the resolution under paragraph 6(1) of schedule 1 to the 1974 Act or to the service of intervention notices, past ‘misconduct’ is relevant if, and only in so far as, it informs an assessment of future risk ... The question, in each particular case, is whether the experience of past conduct should lead to the conclusion that the risks of reinstatement are, or are not, acceptable.” 49. The court made the limited orders sought by the Law Society regarding the lifting of limitations on its ability to impose conditions on the applicant’s practising certificate. 50. Chadwick LJ also commented on the intervention procedure and the possibility to challenge an intervention. He noted that it was not in doubt that intervention in a solicitor’s practice, without advance notice, was likely to have the most serious consequences for the solicitor. However, Parliament had provided the solicitor with a summary process by which the matter could be brought before the court and had imposed short time limits within which that process had to be commenced. He observed that in Holder v. Law Society (see paragraphs 69-74 below) the Court of Appeal had rejected an argument that the intervention procedure was incompatible with the solicitor’s Convention rights, on the basis that the court’s power to consider whether a fair balance had been struck between the demands of the general interest of the community and the protection of the individual’s fundamental rights met the requirements of Article 1 of Protocol No. 1. However, he continued: “... it is clear that, unless the matter can be determined by the court within a short time of the intervention, the solicitor is likely to be denied an effective remedy. That is because the consequences of intervention – if the intervention continues for more than a short time – are likely to be irreversible. The solicitor’s clients will have to take their affairs elsewhere; the staff will have found other employment; and the practice will be destroyed in any event.” 51. He referred to Park J’s criticism of the resolution of 17 February 2005 on the basis that it failed to disclose the reasons which had led the Panel to decide that intervention notices should be served, and noted: “... The true vice, in my view, is that the reasons which were disclosed – ‘it was necessary to exercise powers of intervention in this case in view of the nature of the matters identified in the Forensic Investigations Report dated 22 November 2004’ – were stated in so general and unspecific terms. Disclosure of reasons in those terms is calculated to make it difficult for the solicitor to know and address the real concerns which had led to the exercise of intervention powers. The Society should, I think, give thought to the need for Panel resolutions to identify, with much more specificity than in this case, the reasons which (in the Panel’s view) make intervention necessary. If those reasons are not identified at an early stage, there is a danger that the solicitor will be denied the effective protection which Parliament plainly intended a summary process to provide. There will, of course, be many cases in which the solicitor who has suffered intervention will be in no doubt as to the Society’s concerns. And, as I have said, there will be cases where the solicitor wishes to challenge the validity of the resolution on public law grounds. But, in cases where, although the solicitor knows what material was before the Panel, there is genuine doubt as to the matters which the Society regards as sufficiently serious to justify intervention, it seems to me that the court should be ready to assist – on an early application for directions following the issue of an application under the schedule 1 procedure – by requiring the Society to state the grounds upon which (on the material then known to it) the application will be resisted. Such a statement would enable the solicitor to address the Society’s concerns in a focussed response. And, in the light of that response, the Society can explain to the court why it takes the view (if it does) that the concerns have not been met. I appreciate that the process suggested in the previous paragraph may require the court to adopt a more pro-active role on applications under schedule 1 to the 1974 Act than hitherto; and that the need for an early determination of such applications will place demands on the court’s resources which it may be difficult to meet. But, as it seems to me, the court will be ready to meet those demands in order to ensure that the solicitor does obtain the effective protection which the Convention requires and which the 1974 Act was plainly intended to provide.” 52. The applicant applied for leave to appeal to the House of Lords. In her petition for leave to appeal, she identified as a matter of general public importance requiring examination by the House of Lords the question whether the intervention provisions in the 1974 Act were compatible with the Convention. The House of Lords refused the applicant’s request for leave to appeal on 22 May 2007. 53. On 14 March 2008 a second intervention was effected into the applicant’s practice. Her High Court challenge in respect of that intervention was dismissed. 54. Disciplinary proceedings against the applicant before the Solicitors Disciplinary Tribunal followed. The case was heard on 5 May 2009 and on 29 June 2009 the findings of the tribunal resulted in the applicant being struck off as a solicitor. 55. The Law Society is the governing body of the solicitors’ profession. It has a regulatory function and regulatory powers under the Solicitors Act 1974. Under section 35 of the 1974 Act, the Law Society is given the power to intervene in a solicitor’s practice in circumstances specified in Part I of Schedule 1 to the Act by exercising any or all of the powers set out in Part II of Schedule 1 to the Act. 56. Paragraph 1(1) of Part I to Schedule 1 of the Act provides that the Law Society may exercise its right of intervention inter alia where the Council of the Law Society have reason to suspect dishonesty on the part of a solicitor in connection with that solicitor’s practice or in connection with any trust of which that solicitor is or formerly was a trustee; or where the Council are satisfied that a solicitor has failed to comply with the Solicitors’ Practice Rules, the Solicitors’ Accounts Rules or rules requiring solicitors to hold professional indemnity insurance. 57. Paragraph 1(2) provides that the intervention powers shall only be exercisable in cases concerning a suspected breach of the solicitors’ rules if the Society has given the solicitor notice in writing that the Council are satisfied that he has failed to comply with rules specified in the notice and that the intervention powers are accordingly exercisable in his case. 58. Part II of Schedule 1 sets out the powers available to the Law Society upon intervention. Under paragraph 6, the Law Society has the power to take control of the practice’s accounts pursuant to a resolution passed by the Council. 59. Under paragraph 9, the Law Society has the power to take possession and control of the firm’s documents. 60. Paragraph 10 allows the Law Society to intercept the firm’s mail. 61. Finally, section 15 of the 1974 Act provides for the suspension of the solicitor’s practice certificate in the event of an intervention. 62. The 1974 Act allows an intervened-upon solicitor to apply to the High Court to request the withdrawal of an intervention. Under paragraph 6(4) of Schedule 1, a decision to take possession of the practice monies can be challenged within eight days of the service of the notice by application to the High Court for an order directing the Law Society to withdraw the notice, with not less than 48 hours’ notice to the Law Society. Paragraph 6(5) provides that upon an application under paragraph 6(4), the Court may make such order as it thinks fit. 63. Under paragraph 9(8) and (9), a solicitor can, within eight days of receiving the notice that the Law Society has taken possession of the firm’s documents and on not less than 48 hours’ notice to the Law Society, apply to the High Court for an order directing that the documents be delivered to such person as the applicant may require. Paragraph 9(11) provides that upon an application, the Court may make such order as it thinks fit. 64. Under section 16(3), a solicitor may, at any time before the expiry of her practising certificate, apply to the Law Society to have the suspension of the certificate terminated. Under section 16(4), upon receipt of an application: “... the Society may in its discretion— (a) by order terminate the suspension either unconditionally or subject to such conditions as the Society may think fit; or (b) refuse the application.” 65. If the Law Society refuses the application or terminates the suspension subject to conditions, the solicitor may appeal against the decision of the Society. At the relevant time, an appeal was to be made to the Master of the Rolls, who could, under section 16(5): “(a) affirm the decision; or (b) terminate the suspension either unconditionally or subject to such conditions as he may think fit.” 66. The Solicitors’ Accounts Rules govern the treatment of client and practice monies by solicitors. They set out a number of general principles, including that a solicitor must keep client money separate from money belonging to the solicitor or the practice; keep client money safe in a bank or building society account identifiable as a client account; establish and maintain proper accounting systems, and proper internal controls over those systems, to ensure compliance with the rules; keep proper accounting records to show accurately the position with regard to the money held for each client and each controlled trust; and account for interest on other people’s money in accordance with the rules. 67. Detailed rules exist concerning bank accounts and require in particular that solicitors to keep at least one client account for the holding of money belonging to clients. They define the circumstances in which transfers can be made from the client account to cover payment of the solicitors’ fees. The rules also provide that the client account must not be overdrawn and that interest must be allocated to monies held in client accounts. Finally, the rules impose strict accounting obligations on solicitors. 68. The Solicitors’ Practice Rules are the principal set of rules governing the practice of solicitors in England and Wales. 69. In the case of Holder v. Law Society ([2003] EWCA Civ 39) the Court of Appeal considered an appeal by the Law Society against the grant of permission by the High Court for an application for withdrawal of an intervention to go to trial on the basis that the intervention violated the claimant’s rights under Article 1 of Protocol No. 1. 70. The Court of Appeal discussed the possibility of obtaining an injunction, noting: “16. Where necessary the procedure can operate very quickly. By way of illustration, we were referred to one case (Wilson Smith v. Law Society, 29th March 1999) where the Judge gave a temporary injunction by telephone on the day before the proposed intervention to enable the matter to be considered in Court the following morning. In another recent case to which I shall return (Wright v. Law Society, 4th September 2002), an interim injunction was granted to preserve the position pending the full hearing a few days later. The Judge recorded the speed with which all the parties had worked, including the submission of skeleton arguments by e-mail over the weekend.” 71. In overturning the decision of the High Court and restoring the order of the Master to dismiss the claim, Carnwath LJ explained: “17. Before the judge it was submitted by Mr Engelman (appearing then as now for Mr Holder) that the intervention power, either generally or as applied in this case, infringed Mr Holder’s right to ‘peaceful enjoyment of his possessions’ under article 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms, as applied by the Human Rights Act 1998 ... ... “29. Mr Engelman referred to the principles laid down by the Strasbourg court for the application of the public interest test: ‘the court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights’ (Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35 , 52, para 69); ‘There must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measure depriving a person of his possessions’: Holy Monasteries v Greece (1994) 20 EHRR 1 , 48, para 70. He submitted that if, as the judge found, the more draconian features of the intervention procedure were not ‘necessary’, the requirement of ‘proportionality’ was not satisfied.” 72. He continued: “30. With respect to the submission, and to the judge, this approach ignores the ‘all important’ factor, when considering issues of proportionality, of the ‘margin of appreciation or discretion’ or ‘area of judgment’ allowed to the legislator and the decision-maker ... This aspect was not mentioned by the judge, although it was referred to in Mr Engelman’s written submissions to him. [The judge] appears to have approached the matter on the basis that it was for the court to determine what was ‘necessary’ in the public interest, and in doing so to compare other possible procedures devised by the court. In my view, this was fundamentally wrong.” 73. He concluded that the legislation itself and the approach taken by the Law Society and the courts in carrying out a balancing exercise was no different from the requirement in Article 1 of Protocol No. 1 that a fair balance be struck, noting: “31. In the present case, the ‘margin’ arises at two stages: first, the discretion allowed to the legislature in establishing the statutory regime, and, secondly, the discretion of the Law Society as the body entrusted with the decision in an individual case. (In the former case, the only remedy for exceeding the ‘margin’ may be a ‘declaration of incompatibility’ under the 1998 Act.) The intervention procedure, now contained in the Solicitors Act 1974, is long-established (dating back to 1941, in its earliest form), and has been reviewed by the court on many occasions. As appears from the cases to which I have referred, it has been recognised as ‘draconian’ in some respects, but necessary for the protection of the public interest; and the courts have repeatedly emphasised the ‘balancing exercise’ which it involves. I see no material difference between this and the ‘fair balance’ which article 1 requires ... I see no arguable grounds for thinking that the margin allowed to the legislature has been crossed, particularly having regard to the deference which is properly paid to an Act of Parliament, as compared to an administrative decision ... 32. Having reached that point, the Law Society’s actions must be judged by reference to the procedure laid down by Parliament, not to some hypothetical alternative procedure ... 33. The Law Society also has a ‘margin of discretion’, but the court has a separate duty to consider the merits of the case, in accordance with the principles I have discussed, while paying due regard... to the views of the Law Society, as the relevant professional body. As I have said, this meets any ‘fair balance’ requirement ...” 74. Sir Christopher Staughton agreed that the appeal should be allowed, adding: “38. In the exercise of its powers of intervention the Law Society must of course comply with the Human Rights Convention. I can imagine circumstances where the Law Society might be found not to have complied with the Convention, or with the Human Rights Act 1998. After all, a solicitor whose practice is the object of an intervention loses his practising certificate, and in all probability his livelihood as well. The provisions for bringing an intervention to an end are very unlikely to restore the solicitor’s goodwill and his prosperity. If it comes about that the intervention was mistaken or unjustified, there is a risk that the solicitor will suffer a substantial loss without recourse to any remedy. In practice this may never happen; but it is a cause for concern. However, not in this case.” | 0 |
dev | 001-5094 | ENG | NLD | ADMISSIBILITY | 2,000 | DE ARRIZ PORRAS v. THE NETHERLANDS | 4 | Inadmissible | Elisabeth Palm;Gaukur Jörundsson | The applicant is a Peruvian national born in 1937. He is represented before the Court by Ms A.E.M. Röttgering, a lawyer practising in Amsterdam. The applicant is a retired senior diplomat. At the time of the events complained of he had no diplomatic status. On 27 April 1997, while in transit from Peru to Spain and travelling on two passports (one ordinary, the other a diplomatic one containing a Schengen visa), he was arrested at Amsterdam (Schiphol) airport after customs found a quantity of cocaine in excess of 23 kilograms in his luggage. The applicant was also found to be carrying a large sum of money in cash. The cocaine had been packed in parcels secured with adhesive tape. It appears from police reports that adhesive tape with which the applicant’s luggage had been secured was identical to that used for packing the cocaine. The applicant relinquished title to the cocaine and the packaging materials (including the tape), and these were destroyed. The applicant was tried by the Regional Court (Arrondissementsrechtbank) of Haarlem, which on 14 August 1997 found him guilty of having intentionally imported cocaine and sentenced him to four years’ imprisonment. The applicant appealed. The appeal was heard by the Court of Appeal (Gerechtshof) of Amsterdam on 17 December 1997. The appeal was by way of a complete rehearing, as is prescribed by Netherlands law. The applicant admitted before the Court of Appeal that before leaving Lima he had packed his luggage himself and secured it with adhesive tape. He had handed it to a luggage porter who had checked it in for him. The cocaine had been put into his luggage by persons unknown to him after the luggage had been checked in. The large sum of money was intended to set up a business in Spain. The defence asked for the adhesive tape with which the cocaine had been packed to be examined for fingerprints, arguing that the absence of the applicant’s fingerprints would prove that the applicant had not handled the cocaine. This request could not be acceded to as the tape had been destroyed after the applicant had relinquished title to it. The defence then suggested that the prosecution be declared inadmissible on this ground. The defence further stated that persons unknown to the applicant had placed the cocaine in his luggage. It was suggested that this might conceivably have been the work of the Peruvian secret service, and a Ministry of Justice liaison officer should be detailed to make examinations in South America. In its judgment, which was delivered on 29 December 1997, the Court of Appeal held that it had normally to be assumed that a person who packed his own luggage was aware of its contents; although admittedly in certain circumstances this might not be so there was nothing to suggest in the present case that such circumstances were present. As to the adhesive tape, even if the absence of the applicant’s fingerprints could be established that would not affect the Court of Appeal’s finding that the applicant must have known that his luggage contained cocaine. As to the possibility that the applicant had been framed by the Peruvian secret service, the Court of Appeal found that the applicant’s statements were “merely of a general nature”, had not been “specified (geconcretiseerd) in any way” and had “in no way been related to his person”, so that it was unnecessary to order an investigation by a Ministry of Justice liaison officer. Further being of the opinion that the applicant had misused a diplomatic passport in the hope of avoiding luggage checks and that his explanation for the size of the sum of money was not substantiated, the Court of Appeal went on to find him guilty of having intentionally imported cocaine and sentenced him to inter alia five years’ imprisonment. The applicant lodged an appeal on points of law to the Supreme Court (Hoge Raad). His counsel submitted two points of appeal. On 3 November 1998 the Supreme Court gave judgment dismissing the applicant’s appeal. | 0 |
dev | 001-72259 | ENG | TUR | CHAMBER | 2,006 | CASE OF BİÇ AND OTHERS v. TURKEY | 3 | Inadmissible | David Thór Björgvinsson | 8. The applicants Ms Layihe Biç, Mr Resul Biç, Ms Zehra Biç and Ms Hamdiye Biç, were born in 1962, 1982, 1984 and 1993 respectively and live in the village of Yukarıharım, attached to the province of Diyarbakır. 9. On 13 October 1993 İhsan Biç was arrested by security forces in Bismil on suspicion of having participated in an attack on a military convoy, organised by the PKK. In his statement to the gendarmes, he confessed to being a member of the PKK and having participated in the attack against the military convoy. 10. On 8 November 1993 İhsan Biç was brought before the public prosecutor. The same day he was brought before the investigating judge at the Diyarbakır State Security Court, who subsequently ordered his detention on remand. İhsan Biç was accordingly sent to Batman prison. 11. On 1 December 1993 the public prosecutor initiated criminal proceedings against İhsan Biç in the Diyarbakır State Security Court. In his indictment, he accused him of membership of an illegal organisation, of aiding and abetting the members of this organisation and of having participated in an attack that had been aimed against the security forces. He asked the court to sentence him under Article 125 of the Criminal Code. 12. On 19 September 1995 the Diyarbakır State Security Court concluded that there was insufficient evidence to prove that İhsan Biç had taken part in any armed attack, but found him guilty of membership of an illegal organisation. He was accordingly sentenced to twelve years and six months’ imprisonment pursuant to Article 168 § 2 of the Criminal Code. The court further ordered his transfer to the Diyarbakır Prison. 13. On 25 September 1995 İhsan Biç appealed. 14. On 2 October 1996 the Court of Cassation quashed the decision of the State Security Court and sent the case file back for re-examination. 15. The proceedings recommenced before the Diyarbakır State Security Court. The first-instance court decided to keep İhsan Biç in detention on remand during the course of the trials. While the proceedings continued, İhsan Biç was twice operated upon a stomach complaint. At a later date, he was also diagnosed with hepatitis B and subsequently died in the hospital on 9 October 1999 due to liver cirrhosis. 16. The Diyarbakır State Security Court decided to discontinue the criminal proceedings against İhsan Biç after his death. | 0 |
dev | 001-57419 | ENG | IRL | CHAMBER | 1,981 | CASE OF AIREY v. IRELAND (ARTICLE 50) | 2 | Costs and expenses - claim dismissed;Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed | null | 1. The Airey case was referred to the Court by the European Commission of Human Rights ("the Commission") in May 1978. The case originated in an application against Ireland lodged with the Commission in 1973 by Mrs. Johanna Airey. The only outstanding matter to be settled is the question of the application of Article 50 (art. 50) in the present case. Accordingly, as regards the facts, the Court will confine itself here to giving the pertinent details; for further particulars, reference should be made to paragraphs 8 to 12 of the Court’s judgment of 9 October 1979 (Series A no. 32, pp. 6-8). 2. By that judgment, the Court held, inter alia, that there had been breach of Articles 6 par. 1 and 8 (art. 6-1, art. 8) of the Convention by reason of the fact that the applicant did not enjoy an effective right of access to the Irish High Court for the purpose of petitioning for a decree of judicial separation (points 4 and 6 of the operative provisions and paragraphs 20-28 and 31-33 of the reasons, ibid., pp. 19, 11-16 and 17). 3. At the hearing of 22 February 1979, the applicant’s counsel had informed the Court that, should it find a breach of the Convention, her client would seek just satisfaction under Article 50 (art. 50) under three headings: effective access to a remedy for breakdown of marriage; monetary compensation for her pain, suffering and mental anguish; and monetary compensation for costs incurred, mainly ancillary expenses, fees for lawyers and other special fees. In its aforesaid judgment, the Court reserved the whole of the question of the application of Article 50 (art. 50). The Commission was invited to submit to the Court, within two months from the delivery of the judgment, the Commission’s observations on that question, including notification of any settlement at which the Government of Ireland ("the Government") and the applicant might have arrived (point 8 of the operative provisions and paragraphs 36-37 of the reasons, ibid., pp. 18-19). 4. The above-mentioned time-limit was extended by the President several times, on the last occasion until 30 July 1980. On 17 July 1980, the Secretary to the Commission, acting on the Delegates’ instructions, transmitted to the registry copies of correspondence setting out in detail the course of negotiations between the Government and the applicant and revealing that the applicant had rejected a "without prejudice" offer by the Government to pay to her 3,140 Irish pounds in full and final satisfaction of her claims. At the same time, the Secretary stated that the Delegates were of opinion that there was no useful basis on which efforts to reach a settlement could be pursued and that they submitted to the Court that an award under Article 50 (art. 50) should be made "on the basis of the above offer". By letter of 21 August 1980, the Agent of the Government informed the Deputy Registrar, inter alia, that the Government consented to an award of £ 3,140. On 8 October, the Secretary to the Commission transmitted to the Registrar a telex received from the applicant’s legal representative indicating that the applicant did not consider this amount to be fair and reasonable and requested an award in line with her earlier submissions (see paragraph 5 below). On 10 November, the Agent wrote to the Registrar to advise him that, although her Government disputed the applicability of Article 50 (art. 50) to the present case and although they considered a sum of £ 2,140 - which they had initially offered by way of settlement - to be an adequate award, they remained willing to consent to an award of £ 3,140. 5. During the course of the negotiations, proposals for a settlement had been put forward on the applicant’s behalf which may be summarised as follows: a) Mrs. Airey sought an undertaking from the Government to indemnify her against any future legal costs and expenses reasonably incurred in pursuing before the Irish courts the remedy of judicial separation ("the domestic costs"). b) Compensation was requested in respect of: - travelling and miscellaneous expenses: £ 140; - loss on re-housing: £ 1,500; - legal costs and expenses referable to the proceedings before the Convention institutions ("the Strasbourg costs"): £ 9,984.41. c) It was alleged that Mrs. Airey had suffered severe mental anxiety and that her own and her children’s health had been adversely affected; further, her inability for financial reasons to obtain a maintenance or garnishee order in the High Court was said to have caused her constant financial difficulties, to have obliged her to take unsuitable employment and to have resulted in her children’s being denied normal educational facilities and opportunities. The applicant’s solicitors suggested a figure of £ 2,000 in respect of this item. 6. On 9 September 1980, Mrs. Airey applied, under the Scheme of Civil Legal Aid and Advice introduced in Ireland on 15 August 1980, for legal aid in order to petition for judicial separation. However, the competent office informed her on 8 October that she appeared to be ineligible on the basis of the means test. On 10 November, the Secretary to the Commission informed the Registrar that, should the applicant not be granted legal aid, the Delegates would regard it as an important element in any award under Article 50 (art. 50) that her legal costs for a separation action be underwritten by the Government. The Secretary also transmitted to the registry a copy of a letter received from the applicant’s solicitors, Messrs. Walsh O’Connor and Company, in which they requested that, if she were denied legal aid, she should be awarded an additional sum to enable her to instruct solicitor and counsel to represent her in separation proceedings. On 21 November, the Agent of the Government wrote to the Registrar in the following terms. "... In the light of the information provided by Walsh, O’Connor and Company indicating that Mrs. Airey, whose financial position appears to have improved since the events which gave rise to the Court’s judgment in her case, may not be granted legal aid under the Scheme and in view of the course of the proceedings in this particular case, my Government has decided to underwrite her reasonable costs of retaining Solicitor and Counsel for the purpose of taking proceedings for a legal separation, such costs to be taxed as between solicitor and client (i.e. independently assessed by the Courts) in default of agreement thereon between Mrs. Airey and the Government. ..." The Secretary to the Commission transmitted to the Registrar on 17 December a copy of a letter of 11 December from Messrs. Walsh O’Connor and Company, which read: "... We quote from our client’s letter of instructions to us ‘I accept the Government’s offer of costs for my legal separation but reject their offer of £ 3,140 compensation’ etc., from which you will see that we will be instituting proceedings against Mr. Airey on behalf of Mrs. Airey claiming a legal separation and relying on the Government’s undertaking to underwrite our client’s costs in the matter. ..." 7. In accordance with a request by the President of the Chamber, the Secretary to the Commission filed certain documents with the registry on 20 November. 8. Having consulted, through the Registrar, the Agent of the Government and the Delegates of the Commission, the Court decided on 24 November 1980 that there was no call to hold oral hearings. Mr. O’Donoghue, the elected judge of Irish nationality who had taken part in the adoption of the judgment of 9 October 1979 and whose term of office expired on 20 January 1980, was in principle called upon to continue to sit in this case (Article 40 par. 6 of the Convention and Rule 2 par. 3 of the Rules of Court) (art. 40-6). However, on account of his inability to attend, his place was taken by his successor, Mr. Walsh. | 0 |
dev | 001-76169 | ENG | FRA | GRANDCHAMBER | 2,006 | CASE OF RAMIREZ SANCHEZ v. FRANCE | 1 | No violation of Art. 3;Violation of Art. 13;Costs and expenses partial award - Convention proceedings | Alvina Gyulumyan;Christos Rozakis;Elisabet Fura;Françoise Tulkens;Javier Borrego Borrego;Jean-Paul Costa;John Hedigan;Josep Casadevall;Kristaq Traja;Lech Garlicki;Loukis Loucaides;Luzius Wildhaber;Margarita Tsatsa-Nikolovska;Nicolas Bratza;Peer Lorenzen;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych | 9. The applicant was born in 1949 and is currently in Clairvaux Prison. 10. The applicant, who claims to be a revolutionary by profession, was taken into custody on 15 August 1994. He was placed under judicial investigation in connection with a series of terrorist attacks in France and was given a life sentence on 25 December 1997 for the murder of two police officers and an acquaintance on 27 June 1975. 11. He was held in solitary confinement from the moment he was first taken into custody in mid-August 1994 until 17 October 2002, notably in La Santé Prison (Paris). 12. According to his lawyer, this entailed his being held in a 6.84 square metre cell that was run-down and poorly insulated, with an open toilet area. The applicant was prohibited all contact with other prisoners and even prison warders and was only allowed to leave his cell once his fellow inmates had returned to theirs. His sole permitted activity outside his cell was a two-hour daily walk in a triangular area that was 15 metres long and 7.5 metres wide at the base, receding to 1 metre at the vertex. This area was walled in and covered with wire mesh. His only recreational activity was reading the newspapers or watching television on a rented set. The only visits he received were from his lawyers and, once a month, a priest. The prison authorities ignored his requests to be allowed visits from anyone else. Mail intended for the applicant had gone missing, although it had not been officially confiscated, and he had not received a winter jacket that had been brought to the prison for him in October 1999 until 16 February 2000. 13. The Government did not dispute these facts. They said that the cell was lit by natural light, a ceiling light and a reading lamp. None of the members of the applicant’s family had ever applied for permission to visit. Only two requests to visit had been turned down, both from journalists. 14. The documents in the case file show that the applicant has received visits from 58 different lawyers during his time in prison. His current representative, who is also his wife under Islamic law, visited him more than 640 times between 27 June 1997 and 29 April 2002. 15. The parties have produced a series of decisions requiring the applicant to be held in solitary confinement for successive three-month periods. 16. The first was taken when the applicant was first detained (15 August 1994). It consists of a form on which the following boxes were ticked: “Need to prevent communication with one or more other prisoners” and “Undermining of order and discipline in the prison”. There were no observations by the applicant. The same day, a doctor issued a medical certificate stating: “[The applicant’s] health is compatible with solitary confinement. However, he must, if possible, have complete rest for eight days.” 17. A decision dated 3 November 1994 to prolong the applicant’s solitary confinement from 15 November 1994 to 15 February 1995 was approved by the Regional Director’s Office of the Prison Service. The reasons stated were the same, but the applicant made the following observations: “I consider that these solitary-confinement measures, especially the disturbances at night, indicate a desire to harass a political prisoner.” In a medical certificate issued the same day, a doctor “certif[ied] that [the applicant’s] health [was] compatible with his continued solitary confinement”. 18. A decision of 20 January 1995, which was applicable from 15 February to 15 May 1995, cited the same reasons and was approved by the Regional Director’s Office. The applicant refused to sign the notice informing him of the decision. In a medical certificate issued the same day, a doctor “certif[ied] that [the applicant’s] health [was] compatible with his continued solitary confinement for administrative reasons”. 19. A decision dated 25 April 1995, which was approved by the Regional Director’s Office and was applicable from 15 May to 15 August 1995, spoke of the “need to prevent communication with one or more other prisoners” and a “security measure”. The applicant was transferred that day to Fresnes Prison. 20. A proposal to prolong the measure dated 26 July 1995 cited the “need to prevent communication with one or more other prisoners”. On 27 July 1995 a doctor from Fresnes Prison issued a certificate stating: “Health currently compatible with continued solitary confinement.” 21. On 11 August 1995 the measure was prolonged for a period of three months starting on 15 August 1995. 22. On 10 November 1995 a doctor from Fresnes Prison issued a medical certificate stating that the applicant’s health was satisfactory and compatible with solitary confinement. A further proposal to prolong the measure dated the same day referred to “the undermining of order or discipline in the prison”. 23. On 20 November 1995 the measure was prolonged for a period of three months starting on 15 November 1995. 24. A proposal of 24 January 1996 for a further extension referred to “the need to prevent communication with one or more other prisoners”. On 25 January 1996 a doctor from Fresnes Prison issued a certificate stating that the applicant’s health was satisfactory. 25. On 4 March 1996 the measure was prolonged for a period of three months starting on 15 February 1996. 26. On 19 April 1996 a doctor from Fresnes Prison issued a certificate stating that the applicant’s health was compatible with his detention in the segregation unit. On 7 May 1996 the measure was extended for a period of three months commencing on 15 May 1996. A proposal dated 17 April 1996 mentioned a “precautionary or security measure required for one or more of the following reasons: need to prevent communication with one or more other prisoners”. 27. It was not until 31 October 1996 that the applicant was notified of the measure applicable for the period from 15 May to 15 August 1996. He made the following observation: “I do not think it right that I should be asked to sign more than five months late.” 28. On 15 July 1996 the applicant was notified of a measure which referred to the “need to prevent communication with one or more other prisoners” and to “international terrorism”. 29. On 22 October 1996 a doctor from Fresnes Prison issued a certificate stating that the applicant’s health was compatible with his detention in solitary confinement. 30. A decision dated 31 October 1996, which was applicable from 15 November 1996 to 15 February 1997, referred only to the “need to prevent communication with one or more other prisoners”. The applicant made the following observations on the notification slip: “I note that Mr ..., the director, has already replied to these observations, even before I have made them, it is stated below: 07.11.1996 before the Sentence Enforcement Board in the prison. Consequently, the remarks I am required to make have become superfluous. Even so, my solitary confinement is a form of torture.” This measure was authorised by the head of the Prison Service at the Ministry of Justice on 14 November 1996, as were those that followed. 31. On 17 January 1997 a doctor from the Paris Regional Health Authority certified that he had examined the applicant and found his health to be compatible with solitary confinement. 32. A proposal made on 20 January 1997 referred to the “need to protect [the applicant] from the rest of the prison population” and the “need to prevent communication with one or more other prisoners”. The applicant made the following remarks: “I note that I am increasingly subject to this base harassment and am being singled out as a political prisoner. I reject the reasons given for keeping me in solitary confinement.” 33. On 23 April 1997 a doctor from the Paris Regional Health Authority certified that solitary confinement was not contraindicated for the applicant. 34. The following reasons were given for a proposal for a further extension dated 25 April 1997: “Precautionary or security measure for one or more of the following reasons: (i) need to protect you from the rest of the prison population; (ii) need to prevent communication with one or more other prisoners.” The applicant made the following comments: “I have not had a check-up, been weighed or had my blood pressure taken, etc. ... I note that the lower section of the questionnaire has already been filled in, thus making a mockery of the observations which I have been asked to make. Please give me a further complete medical check-up.” 35. A decision of 21 July 1997 referred in addition to “the undermining of order and discipline in the prison” and “potential dangerousness linked to acts of terrorism”. The applicant made the following comments: “I have not had a medical certificate following a medical examination and you are using forged documents which you do not even dare to show me. I request an immediate interview with the governor.” 36. A decision of 13 August 1997 again cited the “need to prevent communication with one or more other prisoners”. 37. On 14 October 1997 a doctor at Fresnes Prison issued a certificate certifying that the applicant’s health was satisfactory. Proposals of 21 October 1997 and 23 January 1998 were in the same terms as the decision of 13 August 1997. On signing the proposal of 21 October, the applicant stated: “I sign under protest against an unjust repressive measure (decision) against a political prisoner held hostage by the French State.” 38. On 23 January 1998 a Fresnes Prison doctor issued a certificate certifying that the applicant’s health was satisfactory. 39. It was followed by a further certificate on 22 April 1998 stating that the applicant was fit enough to remain in solitary confinement and a certificate of 23 July 1998 stating that solitary confinement was not contraindicated. A further certificate drawn up on 21 October 1998 stated that the applicant was in satisfactory health and fit enough to remain in solitary confinement. 40. Proposals made on 22 April, 23 July and 19 October 1998 cited the need for “precautionary and security measures in view of the prisoner’s character and record”. The applicant commented as follows on the proposal of 22 April 1998: “I acknowledge receipt of notice but protest against the renewal of this unjustified measure of vile political repression that has been imposed on me. Please provide me with a copy.” On the proposal of 19 October 1998, he noted: “The signature on this notice by the disloyal deputy director Mr V. further attests to the unfairness of repressive measures imposed by a prison service that acts unlawfully against political inmates such as me.” 41. The measure dated 19 October 1998 referred to “precautionary and security measures in view of the prisoner’s character and record”. 42. On 15 January 1999 a doctor from La Santé Prison issued a medical certificate in which he stated: “The applicant’s health is currently compatible with his continued detention in solitary confinement subject to his receiving psychiatric treatment.” Proposals made on 14 January and 8 April 1999 stated: “The prisoner must remain in administrative solitary confinement on order and security grounds, in view of his character and record and the nature of his court cases.” 43. The Ministry of Justice stated in decisions of 20 January and 20 April 1999: “The character of this prisoner, who is an HSP [high-security prisoner] and objectively dangerous, in particular because of the nature and length of the sentence he faces, justifies his continued solitary confinement on order and security grounds.” 44. On 9 April 1999 the senior doctor at La Santé Prison issued a certificate which read: “The circular of December 1998 on solitary confinement states that the opinion of a doctor will only be sought after a year’s confinement. Last certificate issued on (illegible). I do not, therefore, need to append a certificate regarding prolongation to this note.” 45. On 23 April 1999 another prison doctor certified that the applicant’s health was compatible with his detention or continued detention in solitary confinement. 46. A further certificate dated 20 July 1999 confirmed that the applicant’s health was compatible with his continued detention in solitary confinement. 47. A decision of 22 July 1999 cited the following reasons: “You must remain in solitary confinement for a further period of three months on order and security grounds, in view of your character, your classification as an HSP, and the nature of your convictions and of the cases currently pending.” 48. A decision of 25 October 1999, which took effect on 15 November 1999, read as follows: “It is necessary to prolong your solitary confinement for a further period of three months in order to preserve order and security in the prison in view of your dangerousness, your ability to influence fellow inmates and the risk of your escaping given the substantial aid potentially at your disposal.” The applicant made the following observations: “I note that the infamous masquerade by the Zionist militant Elisabeth Guigou, who runs the French Ministry of Justice on behalf of the imperialist forces that are seeking to reduce France to the level of a suzerain of the United States, continues. To heck with Human Rights and with Law itself. ALLOUHA AKBAR.” 49. On 1 February 2000 the authorities relied on “order and security grounds, in view of your character, your classification as an HSP and the offences for which you have been imprisoned”. 50. The decisions of 27 April, 20 July and 20 October 2000 were couched in identical terms to the decision of 25 October 1999, save that the end of the sentence read “given your access to outside help”. 51. On 13 July 2000 the senior doctor at La Santé Prison issued a medical certificate which read: “I, the undersigned, ... declare that [the applicant] is in quite astounding physical and mental condition after six years in solitary confinement. However, it is not proper for a patient’s doctor to be required to issue a certificate that ought to be a matter for expert opinion. It is very difficult for a doctor to sanction solitary confinement on administrative, rather than medical, grounds.” 52. On 3 October 2000 another doctor issued a certificate in the following terms: “I, the undersigned, ... certify that I have today examined [the applicant]. No clinical examination was carried out. However, in view of his current mental condition, I am unable to give a medical opinion on whether he is fit to remain in solitary confinement.” 53. On 5 January and 23 January 2001 the Ministry of Justice ratified decisions by the governors of Fleury-Mérogis and La Santé Prisons, dated 30 December 2000 and 22 January 2001 respectively, to place the applicant in solitary confinement after previous orders had automatically lapsed following his transfer. 54. The following reasons were stated in the decision of 22 January 2001: “Regard has been had to your personality, your classification as an HSP, the length of your sentence (LI [life imprisonment]), the nature of the offences and your involvement in an international terrorist network. All these objective indicators of dangerousness make your continued solitary confinement necessary on security grounds.” 55. On 20 March 2001 a doctor from La Santé Prison certified that she had seen the applicant but had not been able to carry out a physical examination. She added: “However, in view of his current mental state, I am unable to give a medical opinion on whether he is fit to remain in solitary confinement.” On 28 March 2001 the applicant commented as follows: “I have once again filled in this form, having already done so on 19 March ... I denounce ‘the white torture’ of perpetual solitary confinement which, following the ‘serious provocation of 28 December 2000’, has been aggravated by the obstruction of the fanlight, which now only opens to an angle of 30o (7.5 cm), preventing fresh air getting in. This is on top of the ban on my receiving visits or French lessons, in breach of the undertakings. You are committing a crime of ‘lese-humanity’.” 56. On 28 March 2001 a doctor from the Cochin Hospital practising in La Santé Prison issued the following certificate: “I, the undersigned, ... state that the doctors from the medical service at Paris La Santé Prison are not qualified to judge whether the physical and mental condition of the prisoner Ilich Ramirez Sanchez, who is currently being held in La Santé, is compatible with his continued solitary confinement.” 57. On 22 April 2001 it was decided to prolong the solitary confinement “in order to preserve order and security in the prison in view of your dangerousness, your ability to influence fellow inmates and the risk of your escaping given your access to outside help”. The same reasons were cited in a further extension of 18 June 2001, while a decision of September 2001 was worded in almost identical terms. 58. On 23 May 2001 the doctor in charge of the Outpatient Consultation and Treatment Unit (“the OCTU”) wrote to the governor of La Santé Prison in these terms: “I have met Mr Ilich Ramirez Sanchez ... as I was asked for an opinion on whether there is any contraindication to this patient’s remaining in solitary confinement. Even though Mr Ramirez Sanchez is in reasonable physical and mental condition, strict solitary confinement for more than six years and nine months is ultimately bound to cause psychological harm. It is my duty as a doctor to alert you to these potential consequences so that you may take an informed decision. ...” 59. On 20 June 2001 the doctor who issued the certificate of 20 March 2001 issued a second certificate in similar terms. 60. The following reasons were stated in a decision that was applicable from 22 July 2001: “... in order to preserve order and security in the prison in view of your dangerousness, your ability to influence fellow inmates and the risk of your escaping given your access to outside help.” 61. On 20 September 2001 the doctor in charge of the OCTU issued a medical certificate after examining the applicant “for the purposes of the medical opinion required for continued solitary confinement”. He stated that the applicant presented “a physical and mental condition that was entirely reasonable after seven years in solitary confinement”, adding, however, that this opinion does not constitute an expert opinion, which I am not qualified to give”. 62. The following reasons were given for prolonging the solitary confinement in a decision of 4 October 2001: “It is necessary to prolong your solitary confinement in order to preserve order and security in the prison and to avoid your exerting an influence over your fellow inmates or attempting to escape.” In his observations, the applicant noted in particular: “More than seven years of strict solitary confinement, a ban on receiving visits or French lessons and a steady reduction in the amount of fresh air in the isolation cell from which even the old wooden school desk has been removed all serve to demonstrate the unfairness of the repressive measures that have been taken against a revolutionary political leader who will not be broken.” 63. On 20 December 2001 the measure was renewed for a further three months on the following grounds: “Regard has been had to your character, your classification as an HSP, the length of your sentence (LI), the nature of the offences and your involvement in an international terrorist network. All these objective indicators of dangerousness make your continued solitary confinement necessary on security grounds.” 64. Decisions of 10 January, 25 March and 8 July 2002 read as follows: “It is necessary for you to remain in solitary confinement in order to preserve order and security in the prison and to avoid your exerting an influence over your fellow inmates or attempting to escape. The fact that you have received a life sentence, your classification as a high-security prisoner and the nature of the offences for which you have been prosecuted militate in favour of your remaining in solitary confinement.” 65. On 13 June 2002 an assistant doctor from the OCTU at La Santé Prison issued a medical certificate in the following terms: “I, the undersigned, Doctor ..., an assistant doctor from the OCTU at La Santé Prison in Paris, certify that I have examined Mr Ramirez Sanchez Ilich, who was born on 12/10/49, in connection with a request for him to remain in solitary confinement. From the medical standpoint, the problem posed by prolonged solitary confinement over a number of years is that it may affect the prisoner’s physical and mental health.” 66. On 29 July 2002 the doctor in charge of the OCTU at La Santé Prison provided the Ministry of Health with the following summary of the medical care the applicant was receiving: “This patient, who, as you are aware, is in the segregation unit, receives two mandatory medical visits from a member of the OCTU medical team every week, as required by the French Criminal Code. He is currently in excellent somatic health. I am not qualified to express an opinion on his mental health. In addition, Mr Ramirez Sanchez may on request consult members of the OCTU team independently of the mandatory medical visits to the segregation unit. He has thus been able to consult an ophthalmologist ... and has been prescribed corrective glasses. He has consulted a general practitioner several times independently of mandatory visits to the segregation unit on ... Biological tests are performed regularly. ... The treatment Mr Ramirez Sanchez has been receiving can be equated to comfort treatment: ... It should be noted that Mr Ramirez Sanchez has refused any psychological help from the RMPS [Regional Medical and Psychological Service]. ...” 67. In September 2002 a further decision to prolong the solitary confinement was taken “in order to preserve security and order, which are under serious threat owing to the applicant’s implication in terrorist networks, his dangerousness and the risk of his escaping”. 68. On 17 October 2002 the applicant was transferred to Saint-Maur Prison (département of Indre), where his solitary confinement ended. On 13 May 2003 he lodged a fresh application with the Court, in which he complained of the new conditions in which he was being held and, in particular, of the distance from Paris. 69. In June 2003 a book that had been written by the applicant with the help of a journalist was published under the title L’islam révolutionnaire (“Revolutionary Islam”). 70. On 27 August 2003 the Indre Health Inspector wrote the following letter to the Ministry of Health: “Mr Ramirez Sanchez received a somatic and psychiatric medical examination on his arrival at the prison on 17 October 2002. He has at no stage been placed in solitary confinement in Saint-Maur Prison. As regards his somatic health, Mr Ramirez Sanchez receives the statutory care and may consult the OCTU on request. As to his mental health, he was seen by an RMPS psychiatrist as part of the standard induction procedure. No follow-up was prescribed at the time and the patient has not asked to see a psychiatrist since. He was offered an examination and this took place on 26 August 2003. The RMPS have not recommended any follow-up to that appointment.” 71. On 18 March 2004 the applicant was transferred to Fresnes Prison in the Paris area where he was again placed in solitary confinement. This followed a television programme in which, in the course of a telephone interview with a journalist, the applicant refused among other things to express any remorse for his crimes to the victims on the grounds that there were “no innocent victims”. 72. On 6 August 2004 a doctor at Fresnes Prison issued a medical certificate in the following terms: “I, the undersigned, ... certify that the prolonged period of solitary confinement to which Mr Ilich Ramirez Sanchez, who was born on 12 October 1949, is subject is detrimental to his mental health. Bringing the solitary confinement to an end would go a long way to facilitating the monitoring of a chronic somatic pathology from which the patient has recently started to suffer which requires medical supervision and regular biological tests.” 73. On 20 December 2005 another doctor issued a medical certificate which read: “I, the undersigned, ... regularly see Mr Ilich Ramirez Sanchez, a prisoner in the segregation unit. His continued solitary confinement is damaging his health; it has now lasted for several years and it would appear desirable from the medical standpoint for it to cease.” 74. On 24 January 2005 the applicant was transferred to Fleury-Mérogis Prison and on 24 November 2005 to La Santé Prison. In both institutions he was kept in solitary confinement with the measure being periodically renewed, including on 17 February 2005 (see below). 75. On 30 June and 5 October 2005 the senior doctor at the OCTU at Fleury-Mérogis Prison issued two medical certificates in exactly the same terms: “I, the undersigned, ... certify that Mr Ramirez Sanchez Ilich, who was born on 12 October 1949, has been in my care since his arrival at the prison. The problems which Mr Ramirez Sanchez has had with his physical health are now stable. Mr Ramirez Sanchez continues to make the same complaints about the difficulties of being held in full solitary confinement. Since he does not wish to be treated by the Regional Medical and Psychological Service at Fleury-Mérogis Prison and I am not qualified to determine the impact of the conditions in which he is detained on his mental state, a medical and psychological assessment would be desirable. Certificate issued at the request of the prison authorities and delivered by hand for whatever purpose it may serve in law.” 76. On 5 January 2006 the applicant was transferred to Clairvaux Prison, where he is held under the ordinary prison regime. 77. On 14 September 1996 the applicant lodged an application for judicial review with the Paris Administrative Court, arguing that the decision of 11 July 1996 to place him in solitary confinement should be set aside. 78. In a judgment of 25 November 1998, which was served on the applicant on 26 January 1999, the Paris Administrative Court rejected the application, holding that the impugned decision was an internal administrative measure which the administrative courts had no power to set aside. 79. The applicant lodged an application for an order setting aside, on the grounds of formal invalidity, the decision of 17 February 2005 to keep him in solitary confinement. In a judgment of 15 December 2005, the Paris Administrative Court held as follows. “Although the authorities argue in their defence that the judge responsible for the execution of sentences gave an oral decision on 4 February 2005 in favour of prolonging Mr Ramirez Sanchez’s solitary confinement, there is no evidence in the file to show that the regional director obtained the opinion of the Sentence Enforcement Board before delivering his reasoned report to the Minister of Justice, even though, by virtue of the aforementioned provisions of Article D. 283-1 of the Code of Criminal Procedure, the Board is the only body empowered to decide whether solitary confinement should continue beyond a year. It follows that Mr Ramirez Sanchez’s argument that the decision of 17 February 2005 to prolong his solitary confinement was defective and must be set aside is well-founded. As regards the submissions on the issue of compensation. Although the formal invalidity of a solitary-confinement measure constitutes a fault capable of engaging the State’ The investigation shows that Mr Ramirez Sanchez has been sentenced to life imprisonment for the murder of police officers. He has been placed under investigation in connection with various terrorist cases, inter alia, for voluntary homicide and using an explosive device to destroy movable property. The applicant might use communications in Fleury-Mérogis Prison or on the outside to re-establish contact with the members of his terrorist cell or seek to proselytize other prisoners and possibly prepare an escape. That being so, the circumstances of the instant case were such as to justify in law the decision taken to prolong the solitary confinement for a period of three months. The damage alleged by Mr Ramirez Sanchez, which included the loss of contact with other prisoners, cannot, therefore, be considered to have been a consequence of the procedural defect in the decision of 17 February 2005, so that his request for an order requiring the State to compensate him for the damage he claims to have sustained is unfounded. ...” “Save in the circumstances set out in Articles D. 136 to D. 147, prison staff must at all times be able to verify a prisoner’s presence. At night it must be possible to light cells when necessary. Cells should be entered only for good reason or in the event of imminent danger. In all cases, intervention must be by at least two staff members and an officer, if one is on night duty.” “Rounds shall be made after lights out and during the night at set times to be changed daily by the senior custody officer, under the authority of the prison governor.” [The words in italic were added or amended by the decrees of 1996 and 1998: Decree no. 96-287 of 2 April 1996, Article 4, Official Gazette of 5 April 1996, and Decree no. 98-1099 of 8 December 1998, Articles 65 and 190, Official Gazette of 9 December 1998.] “Any prisoner in a communal establishment or unit may be placed in solitary confinement at his or her request or as a precautionary or security measure. Orders for prisoners to be placed in solitary confinement shall be made by the prison governor, who shall inform the regional director and the judge responsible for the execution of sentences without delay. The prison governor shall also report to the Sentence Enforcement Board at the first meeting following the prisoner’s confinement or objection to a request for his or her confinement. The prisoner may, either personally or through counsel, send any observations he or she has on the decision to the judge responsible for the execution of sentences. The medical team shall be given a list of the prisoners in solitary confinement every day. Prisoners in solitary confinement will receive a medical examination in accordance with Article D. 381. If the doctor considers it appropriate in view of the prisoner’s health, he or she shall give an opinion on whether solitary confinement should cease. Solitary confinement may only exceed three months if a new report has been made to the Sentence Enforcement Board and the regional director so decides. Solitary confinement may only exceed one year from the date of the initial decision if the Minister of Justice so decides on the basis of a reasoned report by the regional director after the regional director has obtained the opinions of the Sentence Enforcement Board and the prison doctor. The prison governor shall keep a solitary-confinement register for consultation by the administrative and judicial authorities on supervisory visits and inspections.” [Decree no. 96-287 of 2 April 1996, Article 4, Official Gazette of 5 April 1996, and Decree no. 98-1099 of 8 December 1998, Article 190, Official Gazette of 9 December 1998] “Solitary confinement shall not constitute a disciplinary measure. Prisoners in solitary confinement shall be subject to the ordinary prison regime.” Extracts from the Circular of 8 December 1998 implementing the decree amending the Code of Criminal Procedure “4. Solitary confinement as a precautionary or security measure Orders for solitary confinement as a precautionary or security measure are made by the prison governor at the prisoner’s request or on the governor’s own initiative. Since the governor has sole power to order solitary confinement, he or she will need to take particular care in setting out the reasons. 4.1. The need to state reasons Since the Conseil d’Etat’s Marie judgment of 17 February 1995, the administrative courts have assumed jurisdiction to review the lawfulness of disciplinary decisions ‘giving cause for complaint’. Judicial review has not yet been extended to decisions to place a prisoner in solitary confinement, which continue to be regarded in the most recent decisions as ‘internal administrative measures’ that are not amenable to review. The courts consider on the basis of Article D. 283-2 that ‘solitary confinement does not make conditions of detention worse and is not liable to affect the legal position of the person so held’ (Conseil d’Etat, 28 February 1996, Fauqueux, and Conseil d’Etat, 22 September 1997, Trébutien). 4.2. Nature of the reasons It is not sufficient simply to repeat the succinct ‘as a precautionary or security measure’ formula used in Article D. 283-1. ... Orders for solitary confinement as a precautionary or security measure must be based on genuine grounds and objective concordant evidence of a risk of the prisoner causing or being exposed to serious harm. The reasons must state whether the measure has been taken to avoid the risk of an escape, violence or coercion, concerted action liable to disrupt the prison community, connivance or conspiracy, or to protect the life or physical integrity of individual prisoners or of the person in solitary confinement. 4.3. Invalid reasons An order for solitary confinement cannot be made solely for the following reasons. 4.3.1. Nature of the offence The seriousness of the offence for which the person concerned is being held and the nature of the offence of which he or she is accused cannot by themselves justify solitary confinement. ... II. PROCEDURE IN SOLITARY CONFINEMENT CASES ... 1.4. Content of the decision The decision shall be in the form set out on the printed sheet annexed hereto and shall be notified after the hearing. The sheet contains two sections, one for the reasons and the other for the prisoner’s observations. Additional observations on an ordinary sheet of paper and any documents that may assist in explaining the reasons may be attached to the decision. ... 2.2. Copies of documents for the authorities Article D. 283-1, sub-paragraph 2, of the Code of Criminal Procedure requires the prison governor to inform the regional director and the judge responsible for the execution of sentences of his decision without delay. A copy of a decision to place a remand prisoner in solitary confinement must also be sent to the judge in charge of the investigation. 3. Lifting of the measure Solitary confinement is not intended to continue indefinitely, as it must be justified by factual and legal considerations, which may change or cease to apply. In view of the harmful effects of prolonged solitary confinement, the prison governor and regional director must closely monitor the length of the measure. The measure will automatically lapse in the circumstances set out in Chapter 3. Consideration should also be given on the ordinary renewal dates to lifting the measure. The prisoner must be notified of a decision to lift the measure. If the prisoner has asked to be placed in solitary confinement, his or her observations (if any) must be obtained. 4. Prolongation of the measure Unless a decision to prolong the measure is made at the end of three months, it will automatically lapse. ... 4.1. Proposals to prolong the measure The prolongation procedure must be set in motion three weeks before the three-month period expires. Prisoners in solitary confinement must be informed if it is intended to propose prolongation of the measure and, if they so wish, be given an hour in which to prepare their observations, which they may submit at a hearing held for that purpose. They are then notified of the proposal. No prolongation may be proposed without a prior assessment of the prisoner’s situation made with the aid, inter alia, of the record of observation of the prisoner in solitary confinement. If the prison governor considers it necessary to prolong the measure, he or she must compile a file containing: (i) The printed proposal form containing a statement of reasons, which must be up to date when the request is made. The form will contain confirmation that the prisoner has been notified of the proposal, the date of the verbal report to the Sentence Enforcement Board and the date of transmission to the regional director. (ii) The liaison form. (iii) The report on the prisoner’s behaviour in solitary confinement based, in particular, on the record of observation. Any report by the medical team or opinion by the doctor will be appended to the proposal file. 4.2. The regional director’s investigation The file should be sent to the Regional Director’s Office at least fifteen days before the three-month period expires. The Regional Director’s Office will examine the file and, if necessary, request additional documents or information. It should make sure it has a fully up-to-date statement of reasons for the proposal to prolong the measure. The regional director must decide whether or not to prolong the solitary confinement and send the decision to the prison for notification to the prisoner before the expiry of the three-month period in all cases. The decision shall be reasoned. If it is decided not to prolong the measure, it will immediately lapse and the prisoner will be returned to the ordinary regime. The prisoner will be given a copy of the decision to prolong the measure on being notified of it. The same rules shall apply to the preservation of evidence and the forwarding of copies to the authorities as for the initial decision. The same procedure shall be followed if prolongation appears necessary at the end of a further three-month period. Regional directors shall consider the reasons for a further extension with particular care. In particular, they must examine whether other types of measure have been considered and satisfy themselves that no such measure would be feasible. When a decision to prolong solitary confinement has already been taken by a regional director, the measure may be lifted during the statutory periods only by a decision of the same authority, unless it automatically lapses under Chapter 3. In such cases, the prison governor will forward to the regional director a reasoned proposal to lift the measure accompanied, if applicable, by a supporting report. The prison governor will also send the regional director without delay any medical certificates the doctor may have issued together with his opinion on whether any action is called for. 5. Prolongation after a year Solitary confinement should be prolonged after a year only in exceptional cases. The Minister of Justice has sole decision-making power, in accordance with Article D. 283-1, sub-paragraph 6. 5.1. Proposals to prolong solitary confinement The prison governor must send the proposal to prolong solitary confinement to the regional director before the end of the tenth month to allow the Regional Director’s Office and the central authority time to examine it thoroughly. A doctor’s opinion must be sought if it is proposed to prolong solitary confinement beyond a year. If the doctor gives an opinion, it must be set out in writing and forwarded with the proposal. If the doctor does not give an opinion, he or she should initial at least the form containing the proposal. The prison governor will submit the proposal to the Sentence Enforcement Board for an opinion, which the latter will indicate on the proposal form. The prison governor should advise the prisoner of his or her intention to propose prolonging the solitary confinement beyond a year. If the prisoner so wishes, he or she may be given at least an hour in which to prepare observations to be made at a hearing at the end of the allotted time. The prisoner is then notified of the proposal. The prison governor must append to the proposal a summary report on the prisoner’s behaviour since the initial decision was made. Lastly, the liaison record (III.3) shall be forwarded with the proposal so that the authority that will take the decision has full details of the chronology of the measure. 5.2. The regional director’s report The regional director should draw up a report on the basis of the prison governor’s proposal and give a reasoned opinion on whether the measure should be prolonged beyond a year. Before doing so, the regional director may lift the measure if he or she considers that it is no longer warranted or substitute another measure within his or her powers. He or she may also recommend other measures, such as a transfer. The file containing the proposal to prolong solitary confinement must be sent to the head office of the Prison Service at least one month before the preceding measure expires. The central authority must be given time to examine the file and to seek alternatives. 5.3. The decision of the Minister of Justice The central authority will send the Minister of Justice’s decision (which will normally be taken by the director of the Prison Service under delegated authority) to the Regional Director’s Office at least one week before the preceding period of solitary confinement expires so that the prison can be informed in time. The prisoner should be provided with a copy of the decision and an original should be placed in the file. A verbal report on the final decision should be made to the Sentence Enforcement Board. The head office of the Prison Service will retain the power to decide on further quarterly extensions beyond a year. The matter will be referred back to the central authority in accordance with the procedure described in this paragraph at least one month before the new period of solitary confinement is due to end. Apart from the cases of automatic lapse set out in Chapter 3, power to lift the measure after a year is also vested in the central authority. ... IV. THE SOLITARY CONFINEMENT REGIME 1. European and national recommendations Following its visit to France of 6 to 18 October 1996, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment recommended that ‘a balance [be struck] between the requirements of the case and the application of a solitary confinement type regime’, in view of the harmful consequences that that regime could have on the prisoner. It proposed organising the segregation unit in a way that would give prisoners continued access to better exercise areas and to activities, including outdoor activities. These recommendations tie in with the findings of the working groups that have been set up by or at the request of the Prison Service. 2. Implementation of the ordinary prison regime In accordance with Article D. 283-2 of the Code of Criminal Procedure, prisoners in solitary confinement are subject to the ordinary prison regime. 1o Prisoners must be permitted to make full use of their rights of defence, which are protected by instruments of constitutional or international rank, in accordance with the procedure set out in the Code of Criminal Procedure and the distinction it makes between convicted and remand prisoners. The prohibition on communication referred to in Article 145-4 cannot apply to communication with lawyers. 2o The right to relations with members of one’s family and others are exercised through prison visits. Subject to the arrangements for individual access to the visiting room, there shall be no restrictions on prison visits unless a court has ordered solitary confinement. There must be no restrictions on the right of prisoners in solitary confinement to send or receive correspondence. However, stricter monitoring of correspondence may be justified by court-imposed imperatives, the prisoner’s classification as a high-security risk in accordance with Article D. 276-1 of the Code of Criminal Procedure, or a recommendation for the prisoner to be placed on suicide watch. Similarly, prisoners’ rights to make telephone calls in penal establishments in accordance with Article D. 417 of the Code of Criminal Procedure are not suspended by solitary confinement. 3o There is no general restriction on the right of prisoners in solitary confinement to access to news, subject to the normal supervision prisoners receive throughout their term in prison. Prisoners in solitary confinement retain the right to buy newspapers of their choice, or to use a radio or television subject to the usual conditions. If the library operates a direct-access system, it must arrange special opening hours for prisoners in solitary confinement or keep a separate stock for the segregation unit. 4o Religious observance. Religious observance in the segregation unit shall take place in accordance with the rules set out in Articles D. 437 to D. 439 of the Code of Criminal Procedure. Since prisoners in solitary confinement are unable to attend the services habitually open to all prisoners, they may be authorised to attend special services arranged in agreement with the chaplain. 5o Health. The health of prisoners in solitary confinement is dependent on their being detained in conditions that allow them a healthy lifestyle: (i) Cells must receive natural light through a window which also affords adequate ventilation, as required by Article D. 350 of the Code of Criminal Procedure. (ii) The exercise yard must provide access to the open air. Consideration must be given to allocating specific times for prisoners in solitary confinement to exercise in an open yard. Exercise periods should be for the same length as for ordinary-regime prisoners. (iii) Sporting activities should be made available in the segregation unit, for example by the provision of an exercise bike, gym mat or table-tennis table. 2.6. Activities in the segregation unit Although access to communal activities provided for ordinary-regime prisoners is suspended during solitary confinement, prisoners in solitary confinement remain under the ordinary regime and special arrangements should be made within the segregation unit for most activities to continue, allowing prisoners to assemble in small groups at times. Thus, whenever possible, the prison governor must permit prisoners in solitary confinement to assemble in groups of two or three for exercise or activities. A room, which may be multipurpose (sport, reading) should be set aside for this purpose. It is for the prison governor to assess how and when such groups may be organised and to tailor the measure to individuals in the light of the reason for the prisoner’s placement in solitary confinement, the aim pursued and the character and conduct of the prisoner or prisoners concerned. Individual educational programmes or distance teaching offered by teachers or instructors should not be discouraged, as they ensure that activities are also directed towards training. ... 4. Monitoring of and dialogue with prisoners in solitary confinement 4.1. Monitoring A record of observation must be compiled for all prisoners in solitary confinement; it will be supplemented by any relevant comments by duty staff or the persons in charge of the unit on the prisoner’s behaviour in solitary confinement. The record of observation acts as an early warning system if it appears that solitary confinement is having harmful effects on the prisoner. Staff should consult it regularly and in any event if it is intended to propose prolonging the measure. A summary of the record of observation will be sent to the regional director and the central authority with the proposal to prolong the measure or in the event of an internal appeal by the prisoner against the original decision or a decision to prolong the measure. All prisons shall be responsible for creating a record of observation meeting the stated objective or, if one already exists, improving it. 4.2. Dialogue In order to avoid excessive social isolation, it is essential to maintain contact and encourage exchanges between staff and prisoners in solitary confinement. Not only does this reduce the degree of isolation, especially for prisoners who do not receive visits, it also assists in monitoring the prisoner’s character. For the same reasons, senior prison officers and socio-educational staff should seek to meet prisoners in solitary confinement at least as regularly as they do ordinary prisoners.” 82. 3. Case-law of the Conseil d’Etat In a judgment of 30 July 2003, the Conseil d’Etat departed from its previous case-law when it held: “The aforementioned provisions and the evidence before the tribunal of fact show that it is in the very nature of solitary confinement to deprive persons subjected to it of access to the sporting, cultural, teaching and training activities and paid work that are available to other prisoners collectively. Such a measure may be imposed for a period of up to three months and may be prolonged. In these circumstances, even though Article D. 283-2 of the Code of Criminal Procedure states that solitary confinement is not a disciplinary measure, as the prisoners concerned are subject to the ordinary prison regime, a decision to place a prisoner in solitary confinement against his or her wishes will, in view of the effects it has on the conditions of detention, be amenable to judicial review. Accordingly, the Minister of Justice’s submission that the Administrative Court of Appeal erred in law in declaring admissible an application by Mr X for judicial review of a decision by the governor of Bois d’Arcy Prison to place him in solitary confinement is unfounded. The Administrative Court of Appeal did not err in law when it held that a decision to place a prisoner in solitary confinement was one of the decisions for which the first section of the Act of 11 July 1979 requires reasons to be stated. In finding that insufficient reasons had been stated in the impugned decision, the Paris Administrative Court of Appeal reached a decision in its unfettered discretion which, in the absence of any distortion of the facts, cannot be challenged in this Court. It follows from the foregoing that the Minister of Justice is not entitled to make an order setting aside the impugned judgment. It is appropriate in the circumstances of this case to make an order requiring the State to pay Mr X the sum of 2,300 euros he claimed under Article L. 761-1 of the Administrative Courts Code.” 83. Extracts from the reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and the responses of the government of the French Republic (unofficial translation) Report on the visit of 6 to 18 October 1996 “158. The CPT pays particular attention to prisoners held under conditions akin to solitary confinement. It reiterates that the principle of proportionality requires a balance be struck between the requirements of the case and the application of a solitary-confinement regime, which is a step that can have very harmful consequences for the person concerned. Solitary confinement can, in certain circumstances, amount to inhuman and degrading treatment. In any event, it should be as short as possible. 159. The delegation visited the segregation units in ... and in the remand prisons of Paris-La Santé ... It met a number of prisoners who had been held in solitary confinement for long, and in some instances very long, periods. ... Furthermore, the solitary-confinement cells in Paris-La Santé Prison could be described as reasonable (cf. paragraphs 100 and 101). As regards the prison regime, which according to the Code of Criminal Procedure is an ordinary regime, the delegation found that the activities remained limited (reading, television, and in some instances in-cell educational or training activities). ... There continued to be little human contact and this took the form of any visits from close relatives or other authorised persons (such as religious representatives) and some daily contact with warders. As regards outdoor exercise, the prison authorities said that a one to three hour walk was authorised every day, although conditions were less than satisfactory. 160. The CPT pointed out in its report on its first visit that particular attention had to be paid to the mental and physical condition of prisoners in solitary confinement. In paragraph 380 of their interim report, the French authorities indicated that prisoners in solitary confinement were examined twice a week by doctors and that a doctor was called out whenever the condition of a prisoner in solitary confinement demanded. Doctors were required to inform the prison governor in writing if they considered the prisoner’s physical or mental health to be at risk. In that connection, the French authorities informed the delegation that a draft decree (which is due to come into force on 1 December 1996) would establish new rules for gaining access to a doctor and assessing a prisoner’s condition. 161. As to the other safeguards, it seemed to the delegation from an examination of the relevant files that the procedure for prolonging solitary confinement was rather summary. The manner of its implementation also appears to vary from one region to another. ... At Paris-La Santé Prison, the delegation heard allegations by prisoners in solitary confinement that this was no longer the case. These were credible allegations, since, unlike in Marseille, the delegation found no trace of annotations or headings indicating that prisoners had been informed of the proposal to prolong their solitary confinement. The delegation found virtually no evidence in the files it examined of reports being sent to the commission responsible for the execution of sentences or of the commission issuing opinions as required by the relevant provisions of the Code of Criminal Procedure. Furthermore, the only medical certificates relating to the renewal procedure seen by the delegation were stereotyped and extremely brief. 162. In the light of the foregoing, the CPT recommends that the French authorities: (i) review the arrangements for solitary confinement with a view to providing prisoners with a wider range of activities and ensuring appropriate human contact; (ii) ensure that solitary confinement is as short as possible; in that connection, the quarterly review of the need for solitary confinement should entail a full assessment based, if appropriate, on a medical and social report; (iii) ensure that all prisoners whose solitary confinement is prolonged are informed in writing of the reasons for the measure (it being understood that there is no obligation to communicate data which it would be reasonable to exclude on security grounds). The CPT would also like to know whether the decree announced by the French authorities has come into force and to receive a copy if it has.” Responses of the government of the French Republic to the 1996 report Observations (interim report) “(i) review the arrangements for solitary confinement with a view to providing prisoners with a wider range of activities and ensuring appropriate human contact (paragraph 162) The rules governing solitary confinement are being revised. Articles D. 283-1 and D. 283-2 of the Code of Criminal Procedure and the circular of 12 July 1981, which are currently in force, need supplementing in order to improve the procedure and to limit the duration of the measure. Draft Article D. 283-1 accordingly places particular emphasis on the need for the medical supervision of prisoners in the segregation unit. It also makes the director of the Prison Service responsible for deciding whether to prolong solitary confinement that has exceeded a year. The entry into force of this Article, which will be included in a vast decree amending more than 300 Articles of the Code of Criminal Procedure, has been delayed, as the decree is part of a governmental programme of State reform. It is intended that a draft circular will be issued when the decree comes into force. It will emphasise that prisoners in solitary confinement are subject to the ordinary prison regime and will give instructions for continued dialogue between staff and prisoners in solitary confinement, in particular through the organisation of regular meetings. The provision of individual teaching or training programmes will also be recommended. (ii) ensure that solitary confinement is as short as possible; in that connection, the quarterly review of the need for solitary confinement should entail a full assessment based, if appropriate, on a medical and social report (paragraph 162) A draft circular is being prepared. (iii) ensure that all prisoners whose solitary confinement is renewed are informed in writing of the reasons for the measure (it being understood that there is no obligation to communicate data which it would be reasonable to exclude on security grounds) (paragraph 162) A draft circular is being prepared.” Follow-up report “(i) review the arrangements for solitary confinement with a view to providing prisoners with a wider range of activities and ensuring appropriate human contact (paragraph 162) The draft decree referred to in the interim report, which brings the regulatory section of the Code of Criminal Procedure into line with a number of statutes that are already in force, is in the process of promulgation. It will amend, inter alia, Article D. 283-1 of the Code of Criminal Procedure by making the director of the Prison Service responsible for deciding whether to prolong solitary confinement that has exceeded a year. It will redirect the focus of medical supervision to its exclusive role of providing prisoner health care. Pursuant to this provision, a draft circular has been drawn up confirming that prisoners in solitary confinement are subject to the ordinary prison regime, which entails, inter alia: (a) full compliance with prisoners’ ordinary rights to relations with their family, representatives and others; (b) continued dialogue between staff and the prisoner in solitary confinement through regular meetings; (c) the organisation, to the extent possible, of special activities in the segregation unit and of individual teaching and training programmes. This draft was prepared after wide consultation of decentralised services. An information and exchange procedure on the issue has thus already been set in motion and will continue with the distribution of the circular, which could be available immediately after publication of the aforementioned decree. (ii) ensure that solitary confinement is as short as possible; in that connection, the quarterly review of the need for solitary confinement should entail a full assessment based, if appropriate, on a medical and social report (paragraph 162) The draft circular establishes a mechanism for controlling the length of solitary-confinement measures: before a decision to prolong the measure beyond three months can be taken, the regional director must examine an observation report from the prison governor based, in particular, on his knowledge of the prisoner concerned and the information provided by the various prison departments on the basis of the personal record of observation. Any event with suspensive effect that either entails release or is for a period exceeding fifteen days will result in the lapse of the solitary-confinement measure and the prisoner’s return to ordinary detention. (iii) ensure that all prisoners whose solitary confinement is renewed are informed in writing of the reasons for the measure (it being understood that there is no obligation to communicate data which it would be reasonable to exclude on security grounds) (paragraph 162) The draft circular introduces an improved system for the provision of reasons and written notification of decisions to place a prisoner in solitary confinement. The prison governor will not, however, be required to disclose information to a prisoner that may put people or the prison at risk; this has been accepted by the CPT.” report on the visit from 14 to 26 may 2000 “111. In its reports of both 1991 and 1996 the CPT stressed that the principle of proportionality required that a balance be struck between the requirements of the case and the application of a solitary confinement type regime, which is a step that can have very harmful consequences for the person concerned. Solitary confinement can, in certain circumstances, amount to inhuman and degrading treatment. In any event, it should be as short as possible. Following its visits, the CPT advised of its concerns regarding various aspects of solitary confinement in France (cf. paragraphs 140 et seq., and 158-63 of the reports). Subsequently, in a circular dated 14 December 1998, the Minister of Justice issued instructions concerning, inter alia, the grounds on which prisoners could be placed in solitary confinement, the procedure to be followed and the regime for prisoners in solitary confinement. These instructions address some of the concerns expressed by the CPT in its reports on previous visits. Nevertheless, during its visits the CPT delegation found serious shortcomings in the manner in which the earlier recommendations of the CPT and the ministerial instructions had been implemented in practice. The CPT has serious reservations about the situation of a number of prisoners in solitary confinement for administrative reasons that the delegation met during its visit. Its reservations concern both the length of the confinement (which in some instances had been for years on end) and the highly restrictive regime to which such prisoners are subject (total lack of structured or communal activities). 112. The physical conditions of detention of prisoners placed in solitary confinement for administrative reasons were globally acceptable. However, the cells accommodating such prisoners at the Paris-La Santé Prison had only limited access to natural light. In addition, in the four institutions visited, the exercise yards – which were often also used by prisoners in solitary confinement for disciplinary reasons – were uninviting. 113. The ministerial instructions state: ‘The essential features of the ordinary prison regime must, so far as possible and subject to practical constraints, be retained in the segregation unit’ (point 4.1). They further state, inter alia: ‘there shall be no restrictions on prison visits’ (point 4.2.2) and ‘prisoners in solitary confinement remain under the ordinary regime and special arrangements should be made within the segregation unit for most activities to continue, allowing prisoners to assemble in small groups at times’, that ‘it is for the prison governor to assess how and when such groups may be organised’ and ‘individual educational programmes or distance teaching offered by teachers or instructors should not be discouraged’ (point 4.2.6). The instructions further require increased surveillance of prisoners and specify: ‘in order to avoid excessive social isolation, it is essential to maintain contact and encourage exchanges between staff and prisoners in solitary confinement’ (point 4.4.2). From the information obtained by the delegation, it would seem that, with the odd exception (for instance as regards contact with the outside world), the vast majority of the aforementioned requirements have not been complied with. For example, the only establishment which allowed prisoners in solitary confinement for administrative reasons to associate was Lyon-Saint Paul Prison and even there association was restricted (to exercise outdoors and in the fitness room). The CPT recommends that the authorities take measures without delay to give full effect to the Minister of Justice’s instructions of 14 December 1998 concerning solitary confinement for administrative reasons – under paragraphs 4.2.6, 4.2.7 and 4.4.2 in particular. 114. The CPT also has reservations about the effectiveness of the procedural safeguards on solitary confinement for administrative reasons. The files that have been examined show that it is sometimes used as an alternative to solitary confinement as a disciplinary measure (for instance, in one case, the measure was imposed for: ‘serious damage to property belonging to the prison that put prison security at risk’) or to prolong such a measure and that the reasons stated for putting a prisoner in solitary confinement were often stereotyped (‘to maintain order in the prison’ or ‘risk of escape’). In one case the prisoner had been held in solitary confinement since 1997 ‘because of the nature of the offences of which he had been convicted’. In summary, it would appear that the ministerial instructions, namely ‘Orders for solitary confinement as a precautionary or security measure must be based on genuine grounds and objective concordant evidence of a risk of the prisoner causing or being exposed to serious harm’, are not always fully complied with (cf. point 1.4.2). The CPT recommends that the French authorities carry out a case-by-case review of compliance with the instructions issued in 1998 with regard to solitary confinement for administrative reasons. 115. Lastly, the CPT understands that the issue of the nature and extent of available remedies has not yet been resolved (cf. paragraph 146 of the report on the 1991 visit). In practice this means that prisoners in solitary confinement currently have no real means of challenging decisions to place them in solitary confinement or to renew such a measure before an independent authority. The CPT recommends the reinforcement of the safeguards provided for prisoners in solitary confinement in order to ensure they have an effective remedy before an independent authority, preferably a judge. Indeed, that is the spirit of the various proposals that are currently pending before the French authorities (for instance, the Canivet report and the report of the Senate investigation).” Response of the government of the French Republic “(i) take measures without delay to give full effect to the Minister of Justice’s instructions of 14 December 1998 concerning solitary confinement for administrative reasons – under paragraphs 4.2.6, 4.2.7 and 4.4.2 in particular (paragraph 113) (ii) carry out a case-by-case review of compliance with the instructions issued in 1998 with regard to solitary confinement for administrative reasons (paragraph 114) Power to take decisions on solitary confinement is vested in the Minister of Justice if the confinement has exceeded one year. There are currently 77 prisoners who have been in solitary confinement for more than a year. Of these, 23 are in prisons for convicted prisoners and 54 in prisons for remand prisoners. The majority of these prisoners were placed in solitary confinement at their own request, either on account of the offence for which they were imprisoned, or of their occupation before they were imprisoned. Improvements are being made to the segregation units to make them compliant with the circular of 14 December 1998. The prisons to be built as part of the ‘4000 programme’ will be equipped with segregation units that allow prisoners to enjoy all the advantages set out in the aforementioned circular. Furthermore, in accordance with the circular of 14 December 1998 on solitary confinement, it is the regional director of the Prison Service or the central authority who is responsible for reviewing the reasons given by the prison governor for placing a prisoner in solitary confinement. In addition, the prison inspectorate verifies compliance with these obligations when carrying out prison visits. (iii) reinforce the safeguards provided for prisoners in solitary confinement to ensure they have an effective remedy before an independent authority, preferably a judge (paragraph 115) Solitary confinement is one of the issues being considered in connection with the proposed legislation on prisons.” 84. Extracts from the Guidelines on human rights and the fight against terrorism, adopted by the Committee of Ministers of the Council of Europe on 11 July 2002 “III. Lawfulness of anti-terrorist measures 1. All measures taken by States to combat terrorism must be lawful. 2. When a measure restricts human rights, restrictions must be defined as precisely as possible and be necessary and proportionate to the aim pursued. IV. Absolute prohibition of torture The use of torture or of inhuman or degrading treatment or punishment is absolutely prohibited, in all circumstances, and in particular during the arrest, questioning and detention of a person suspected of or convicted of terrorist activities, irrespective of the nature of the acts that the person is suspected of or for which he/she was convicted. ... XI. Detention 1. A person deprived of his/her liberty for terrorist activities must in all circumstances be treated with due respect for human dignity. 2. The imperatives of the fight against terrorism may nevertheless require that a person deprived of his/her liberty for terrorist activities be submitted to more severe restrictions than those applied to other prisoners, in particular with regard to: (i) the regulations concerning communications and surveillance of correspondence, including that between counsel and his/her client; (ii) placing persons deprived of their liberty for terrorist activities in specially secured quarters; (iii) the separation of such persons within a prison or among different prisons, on condition that the measure taken is proportionate to the aim to be achieved.” 85. 1. Extracts from Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules adopted on 11 January 2006 “The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe, Having regard to the European Convention on Human Rights and the case-law of the European Court of Human Rights; Having regard also to the work carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and in particular the standards it has developed in its general reports; Reiterating that no one shall be deprived of liberty save as a measure of last resort and in accordance with a procedure prescribed by law; Stressing that the enforcement of custodial sentences and the treatment of prisoners necessitate taking account of the requirements of safety, security and discipline while also ensuring prison conditions which do not infringe human dignity and which offer meaningful occupational activities and treatment programmes to inmates, thus preparing them for their reintegration into society; ... Recommends that governments of member States: – be guided in their legislation, policies and practice by the rules contained in the appendix to this recommendation, which replaces Recommendation No. R (87) 3 of the Committee of Ministers on the European Prison Rules: ... Appendix to Recommendation Rec(2006)2 ... Basic principles 1. All persons deprived of their liberty shall be treated with respect for their human rights. 2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody. 3. Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed. ... 18.2 In all buildings where prisoners are required to live, work or congregate: a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system; b. artificial light shall satisfy recognised technical standards; ... ... 23.2 Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense. ... 23.4 Consultations and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential. ... 24.1 Prisoners shall be allowed to communicate as often as possible by letter, telephone or other forms of communication with their families, other persons and representatives of outside organisations and to receive visits from these persons. 24.2 Communication and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations, maintenance of good order, safety and security, prevention of criminal offences and protection of victims of crime, but such restrictions, including specific restrictions ordered by a judicial authority, shall nevertheless allow an acceptable minimum level of contact. ... 24.4 The arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible. ... 24.10 Prisoners shall be allowed to keep themselves informed regularly of public affairs by subscribing to and reading newspapers, periodicals and other publications and by listening to radio or television transmissions unless there is a specific prohibition for a specified period by a judicial authority in an individual case. ... 25.1 The regime provided for all prisoners shall offer a balanced programme of activities. 25.2 This regime shall allow all prisoners to spend as many hours a day outside their cells as are necessary for an adequate level of human and social interaction. 25.3 This regime shall also provide for the welfare needs of prisoners. ... 27.1 Every prisoner shall be provided with the opportunity of at least one hour of exercise every day in the open air, if the weather permits. 27.2 When the weather is inclement alternative arrangements shall be made to allow prisoners to exercise. 27.3 Properly organised activities to promote physical fitness and provide for adequate exercise and recreational opportunities shall form an integral part of prison regimes. 27.4 Prison authorities shall facilitate such activities by providing appropriate installations and equipment. 27.5 Prison authorities shall make arrangements to organise special activities for those prisoners who need them. 27.6 Recreational opportunities, which include sport, games, cultural activities, hobbies and other leisure pursuits, shall be provided and, as far as possible, prisoners shall be allowed to organise them. 27.7 Prisoners shall be allowed to associate with each other during exercise and in order to take part in recreational activities. ... 29.2 The prison regime shall be organised so far as is practicable to allow prisoners to practise their religion and follow their beliefs, to attend services or meetings led by approved representatives of such religion or beliefs, to receive visits in private from such representatives of their religion or beliefs and to have in their possession books or literature relating to their religion or beliefs. ... 37.1 Prisoners who are foreign nationals shall be informed, without delay, of their right to request contact and be allowed reasonable facilities to communicate with the diplomatic or consular representative of their State. ... 39. Prison authorities shall safeguard the health of all prisoners in their care. ... 40.1 Medical services in prison shall be organised in close relation with the general health administration of the community or nation. ... 40.4 Medical services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer. 40.5 All necessary medical, surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose. ... 43.2 The medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to the health of prisoners held under conditions of solitary confinement, shall visit such prisoners daily, and shall provide them with prompt medical assistance and treatment at the request of such prisoners or the prison staff. 43.3 The medical practitioner shall report to the director whenever it is considered that a prisoner’s physical or mental health is being put seriously at risk by continued imprisonment or by any condition of imprisonment, including conditions of solitary confinement. ... 51.1 The security measures applied to individual prisoners shall be the minimum necessary to achieve their secure custody. 51.2 The security which is provided by physical barriers and other technical means shall be complemented by the dynamic security provided by an alert staff who know the prisoners who are under their control. 51.3 As soon as possible after admission, prisoners shall be assessed to determine: a. the risk that they would present to the community if they were to escape; b. the risk that they will try to escape either on their own or with external assistance. 51.4 Each prisoner shall then be held in security conditions appropriate to these levels of risk. 51.5 The level of security necessary shall be reviewed at regular intervals throughout a person’s imprisonment. Safety 52.1 As soon as possible after admission, prisoners shall be assessed to determine whether they pose a safety risk to other prisoners, prison staff or other persons working in or visiting prison or whether they are likely to harm themselves. 52.2 Procedures shall be in place to ensure the safety of prisoners, prison staff and all visitors and to reduce to a minimum the risk of violence and other events that might threaten safety. ... 53.1 Special high security or safety measures shall only be applied in exceptional circumstances. 53.2 There shall be clear procedures to be followed when such measures are to be applied to any prisoner. 53.3 The nature of any such measures, their duration and the grounds on which they may be applied shall be determined by national law. 53.4 The application of the measures in each case shall be approved by the competent authority for a specified period of time. 53.5 Any decision to extend the approved period of time shall be subject to a new approval by the competent authority. 53.6 Such measures shall be applied to individuals and not to groups of prisoners. 53.7 Any prisoner subjected to such measures shall have a right of complaint in the terms set out in Rule 70. ... 70.1 Prisoners, individually or as a group, shall have ample opportunity to make requests or complaints to the director of the prison or to any other competent authority. ... 70.3 If a request is denied or a complaint is rejected, reasons shall be provided to the prisoner and the prisoner shall have the right to appeal to an independent authority. ...” 2. Extracts from the report by Mr Alvaro Gil-Robles, Commissioner for Human Rights of the Council of Europe, on the effective respect for human rights in France following his visit from 5 to 21 September 2005 (published on 15 February 2006) “123. ... At the same time, another administrative procedure, which comes fully under the responsibility of the prison administration, is totally lacking in transparency and calls for rapid action on the part of the legislature. This is the procedure for placing prisoners in solitary confinement. 124. When one visits prisons, and more specifically the disciplinary blocks, one can usually see the solitary confinement blocks close by. Every prison has them. Under the law, any prisoner may be placed in solitary confinement either at his/her own request or as a precautionary or security measure. In some cases, this regime is used to remove prisoners who are troublesome, under suspicion or ringleaders from the other inmates without their having committed a disciplinary offence. 125. According to the legislation currently in force, solitary confinement is not a disciplinary measure. Prisoners in solitary confinement must be subject to the ordinary prison regime. However, they must not have contact with other prisoners, except by express decision of the prison director, to take part in one-off activities with other solitary confinement prisoners. The movements of solitary confinement prisoners within the prison are organised in such a way that they do not meet anyone on their way. In a few establishments, solitary confinement prisoners may engage in a gainful occupation by doing work in their cells. Usually, however, they do not have access to any gainful activity and are entirely dependent on any funds which may be sent to them from outside. All solitary confinement prisoners may, however, receive visits and exchange correspondence in the normal way. 126. There is also a stricter solitary confinement regime for prisoners regarded as particularly dangerous ‘because of [their] involvement in organised crime or in a terrorist movement or [their] legal and criminal background’. It is for the prison director to determine which solitary confinement prisoners fall within this category. They are subject to particular security measures. Some are regularly transferred from one prison to another, roughly every six months. They remain constantly in solitary confinement and never mix with other prisoners. 127. Solitary confinement is usually ordered by the prison director. It may also be ordered by an investigating judge in the course of an investigation. Here I should like to dwell on the administrative procedure for which the prison director is responsible, because I feel that it raises a number of issues likely to undermine respect for the fundamental rights of persons placed in solitary confinement. 128. It emerged from most of my discussions with prisoners, lawyers, representatives of the prison administration and voluntary organisations that the procedure for placing prisoners in solitary confinement depends entirely on an administrative decision by the prison director. There are no legislative provisions or regulations governing this procedure which guarantee the rights of those subject to it, particularly by ensuring that they are given a hearing and the assistance of a lawyer. 129. In principle, there is general legislation which should govern this situation. This is Article 24 of the Law of 12 April 2000 on the rights of citizens in their dealings with the public administration. Under this provision, representatives of government bodies who intend to take an administrative decision against an individual citizen must in principle notify the person concerned in writing with sufficient advance notice, specifying the reasons for the procedure. The person in question must have the opportunity to submit written observations or, if he/she so wishes, oral observations and has the right to be assisted by a lawyer or a representative (approved or not). He/she may also have access to his/her file. 130. Clearly, the decision to place a prisoner in solitary confinement would normally be covered by this. However, we were told that this legislation has remained inoperative where solitary confinement is concerned. At present, therefore, the prison director retains sole discretion where solitary confinement is concerned. 131. According to what we heard in the course of our discussions, at present the prisoners concerned are usually informed immediately before the hearing of the intention to place them in solitary confinement. They usually only have an hour in which to prepare their observations before being given a hearing, without any legal assistance, by the prison director. I believe that, as things stand, this procedure must be described as being contrary to the recommendations of the Committee for the Prevention of Torture (CPT). Furthermore, the purely administrative and non-adversarial nature of this procedure greatly increase the risk of abuses of prisoners’ rights. I therefore feel that there is currently a real need to introduce legislation or regulations bringing this procedure into line with European standards. 132. Furthermore, it is particularly disturbing to see that solitary confinement may be ordered for an indefinite period, despite its frequently harmful effects on the mental state of the persons subjected to it. The initial period of solitary confinement ordered by the prison director may not exceed three months. It may be extended beyond that period only after a report to the Sentence Enforcement Board and following a decision by the regional director of prisons. In exceptional cases, solitary confinement may be extended beyond one year following an initial decision by the Minister for Justice. In such cases, the prison director compiles a file including, among other things, the opinion of the prison doctor and of the Sentence Enforcement Board. The minister is responsible for subsequent extensions, for three months at a time, in accordance with the same procedure. 133. As may be seen, this procedure is entirely administrative. At present, there is no judicial involvement whatsoever. Yet it is a particularly serious measure, because, although it is not recognised as punishment, the solitary confinement regime imposes significant material restrictions on prisoners’ rights, not to mention its psychological impact. During the visit, I had the opportunity to talk with persons placed in solitary confinement. Some complained about the harshness of their living conditions. According to them, being unable to communicate with anyone for long periods, sometimes well in excess of a year, is hard to bear. Prisoners placed in solitary confinement have no effective administrative remedy at their disposal, and most of those I spoke to regard solitary confinement as a disguised disciplinary punishment. In the course of the visit I met people who had been in total solitary confinement for several years. 134. It is difficult not to agree with them when you see some of the restrictions placed on solitary confinement prisoners. In view of the fact that one of the requirements of the solitary confinement regime is that the prisoners concerned should have no contact with other prisoners, it is very difficult to allow them to exercise the rights vested in all prisoners not subject to a disciplinary punishment, which should clearly be the case for those in solitary confinement. For example, to allow them to use the library or a sports hall, care must be taken to ensure that no one else enters these premises at the same time. As we know, owing to prison overcrowding, it is already quite difficult to ensure access for ordinary prisoners to these services. Most of those I spoke to therefore complained that it was impossible for them to exercise the rights to which they should normally be entitled. The same applies to the possibility of engaging in a gainful occupation. In theory, prisoners in solitary confinement are entitled to that, but in practice they may only do so inside their own cell, which is highly problematical in view of the scarcity of work opportunities in general. 135. Lastly, the exercise areas available to this category of prisoners are usually the same as those used by the prisoners in the disciplinary block. We visited one such area at Fleury-Mérogis short-stay prison. It is located on the roof of one of the prison buildings, closed in by concrete walls on all sides and covered by wire netting. It is so small that it is more a room in the open air than anything else. 136. I should like to stress that we are talking here about people who are not subject to a disciplinary measure. Furthermore, the fact that a person is left deprived of the rights secured to every prisoner is purely the result of an administrative decision against which it is difficult to appeal. I therefore call on the French authorities to take rapid action to bring solitary confinement into line with European standards, in particular those upheld by the CPT. I think there is a need for legislative provisions or regulations to govern the solitary-confinement procedure. The adversarial system already introduced for disciplinary punishments should apply to the solitary-confinement procedure. Lastly, I think it would be in keeping with the spirit of the principle of legal certainty if a judicial body were henceforth able to participate in the procedure, for example the judge responsible for sentence enforcement. 137. Furthermore, without waiting for legislative reform, the authorities should act to ensure that prisoners in solitary confinement are able to participate in organised activities, particularly as regards work, culture and sports. Their walks and outdoor sports activities should be organised as soon as possible in appropriate places intended for the prison population as a whole, and not for prisoners being held in disciplinary cells. Excluding prisoners from these activities amounts to a disguised punishment. Such changes are bound to lighten the already quite heavy atmosphere which I found in the places of detention visited. ...” | 1 |
dev | 001-93204 | ENG | MKD | ADMISSIBILITY | 2,009 | VRANISKOSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 4 | Inadmissible | Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva | The applicant, Mr Jovan Vraniskoski, is a Macedonian national who was born in 1966 and lives in Bitola. He is represented before the Court by Mr V. Gorgiev, a lawyer practising in Bitola, and the Skopje Office of the Helsinki Committee. The applicant was a bishop in the Macedonian Orthodox Church (“the MOC”). On 5 July 2002 the Holy Synod of the MOC (Светиот Архиерејски Синод) dismissed him from this duty on the ground that he had violated the oath (Епископско исповедание/ заклетва) by which he had pledged to safeguard the MOC’s unity and Constitution by his unilateral accession to the Serbian Orthodox Church (“the SOC”). On a later date, the applicant was expelled from the MOC. He was also prevented from carrying out ceremonies and preaching in all churches and monasteries. On 1 July 2004 the Bitola Court of First Instance (“the trial court”) convicted the applicant of inciting ethnic, racial and religious hatred and intolerance and sentenced him to eighteen months’ imprisonment. It established that the applicant had accepted, although being aware that it would instigate religious hatred and intolerance among believers in the MOC, to be appointed by the SOC as an exarch of the so-called Ohrid Archiepiscopate and to represent the latter as the only valid church in the respondent State. In that capacity, he had undertaken the following. a) In November 2003, he released a religious calendar in which he had made, inter alia, the following defamatory statements in respect of the MOC: “... the dissident high episcopacy of the so-called Macedonian Orthodox Church bears full responsibility for the lack of religious education of the people. The bishops of that dissident organisation, since the beginning of the schism in 1967 until the present, behave inadequately given the function which they were bound to by God. They persistently put their own interests before the interests of the church. They were and still remain the last bastion of communism ... The people ... allowed a few so-called archbishops, unrecognised by anyone, to decide about their church ... If people were aware of the [importance of the church], they would never allow some worldlings and heretics to decide on the destiny of the Church. Unfortunately, the schism in the Orthodox Church, which began in 1967, meant that many religious surrogates were created on our territory. The latest heresy disseminated by the high episcopacy of the dissident organisation, which calls itself the Macedonian Orthodox Church, is to accept the schism as a normal state of affairs which they defend by non-religious methods ... The May Assembly of the episcopacy of the Serbian Orthodox Church ... allowed the dissident archbishops in the Republic of Macedonia to reunite ... with the Orthodox Church, on pain of being taken before the Ecclesiastical Court. Two new episcopes, J. and M., were appointed as adjuncts of [the applicant] ... Being aware that if they targeted the pastor they would destroy the herd, the dissidents, who call themselves the Macedonian Orthodox Church, endeavour to discredit [the applicant], who is the only canonical episcope in the territory of the Republic of Macedonia ... They are further aware that if the state authorities let Patriarch Pavle (the Patriarch of the Serbian Orthodox Church at that time) and other archbishops of other Orthodox Churches to enter the Republic of Macedonia, the people would soon realise that everything they said about [the applicant] was untrue and a political trick ...” b) In November and December 2003, he attended the confirmation (хиротонија) of J. and M. into episcopes. Both were proposed by Patriarch Pavle with a view to creating the illusion of a parallel Holy Synod of the MOC. The ceremony took place in a church in Belgrade, Serbia. c) On 11 January 2004 the applicant held a religious ceremony in an apartment owned by his parents which, according to him, served as a religious object. In doing so, the applicant stirred up considerable religious hatred and intolerance among believers in the MOC and provoked various associations of citizens and other organisations. The trial court established that, as a historical fact, the Ohrid Archiepiscopate had existed on the territory of the respondent State as an ecclesiastical power until 1767, when it had been abolished by the Ottoman Empire. Since then, the Serbian Orthodox and, briefly, the Bulgarian Orthodox Church, had been in power. The Ohrid Archiepiscopate had further existed between 1958 and 1967, having autonomy under the SOC. The SOC “did not have an interest in the Republic of Macedonia having an independent [autocephalous] MOC, but rather an autonomous church, as was the Ohrid Archiepiscopate ... after the breakup of Yugoslavia and the independence of the Republic of Macedonia, the MOC was constituted, which increased the gap with the SOC” The court further found it undisputed that the MOC was not recognised by the SOC and that due to that dispute, the MOC was not recognised by any of the churches of the Orthodox Communion either. The court established that the applicant, after being appointed exarch by the SOC, had started acting as a leader of the Ohrid Archiepiscopate as the true Orthodox Church in the respondent State, in parallel to the MOC. At his request, the SOC made J. and M. episcopes with a view to creating a Holy Synod of the Ohrid Archiepiscopate. He designated his parents’ apartment as the seat of the Ohrid Archiepiscopate, where he held religious ceremonies on many occasions. He denied the existence of the MOC, as well as the reputation and dignity of its leaders. His ideas in favour of the restoration of the Ohrid Archiepiscopate under the SOC’s jurisdiction were only supported by a small group of priests and citizens. The court found that the applicant, in the religious calendar of 2004, had made untrue, disrespectful and defamatory statements about the MOC and its leaders. He had attempted to present himself as a martyr seeking salvation for the Macedonian people, whom he called ignorant and illiterate. The court described the calendar as “bad and vulgar in respect of the religious feelings of the Macedonian people”. It found that, in addition, the applicant had described the religious teaching of the MOC as “heretical”. The court established that the applicant had released the calendar, although he denied it. The calendar was published by a monastery located in his parents’ weekend house, a fact which could not have been unknown to him. The calendar was fully devoted to him and his activities; it further contained pictures of him taken on different occasions. Its text reflected his ideas on denying the existence of the MOC, which he had continued to express during the trial. The court therefore concluded that the applicant had determined the text of the calendar, and printed and distributed it through his followers. It further established that the applicant had not succeeded in persuading people to accept his teaching, but rather, had instigated hatred towards himself and his followers. The ensuing revolt and intolerance had derived from an infringement of the religious sensibilities of the people, who had requested the state authorities to intervene. He had even been threatened with assault. In this connection, the court referred to an incident of 18 January 2004 when a considerable number of people had gathered in front of the applicant’s home to protest about his activities. The trial court rendered the decision after it had heard submissions from the applicant and several witnesses and examined other documentary evidence. It disregarded the applicant’s arguments that several Holy Synods could exist in the respondent State, stating that only the MOC and its Holy Synod existed under the Constitution. The applicant appealed and complained, inter alia, that the proceedings in question concerned his freedom of religion, which was guaranteed under the Constitution. He was convicted for having expressed different religious opinions than those of the members of the MOC’s Holy Synod. Even though the applicant agreed with the contents of the calendar, he complained that no evidence had been presented that he had published it. He complained that the conduct as a result of which he had been found guilty could not be interpreted as incitement to religious hatred and intolerance, but only as an insult or defamation, which could only be prosecuted by means of a private action. On 22 June 2005 the Bitola Court of Appeal held a hearing which was attended by the applicant, his lawyer and a representative of the public prosecutor’s office. The court upheld the applicant’s conviction under all three heads. It found no reason to depart from the trial court’s reasoning that the applicant had deliberately undertaken the actions he was convicted of and that he had instigated a schism in the MOC and religious hatred and intolerance among Macedonian churchgoers. The court held that the applicant had abused the right to freedom of religion by creating a parallel Holy Synod, which was contrary to the Constitution, under which there was only one MOC on the territory of the respondent State. It concluded that the applicant had aimed to implement the ideas of a foreign state on the territory of the respondent State. On 13 July 2005 the applicant lodged a request with the Supreme Court for extraordinary review of a final judgment (барање за вонредно преиспитување на правосилна пресуда, hereinafter “extraordinary review request”). He complained that he had been convicted on the basis of having acceded to another religious community and holding a religious ceremony in his home. As regards the calendar, he reiterated that, ultimately, he could only be held criminally responsible for insult and/ or defamation, which were not prosecutable except by means of a private action. He invoked, inter alia, Article 9 of the Convention and Article 19 of the Constitution. On 13 September 2005 the Supreme Court ruled partly in favour of the applicant and upheld his conviction only in respect of the distribution of the religious calendar. It decided that the applicant’s conduct under b) and c) described in the trial court’s decision did not fall within the scope of section 319 (1) of the Criminal Code (see “Relevant domestic law” below). In this latter context, it found that the applicant’s presence at the confirmation ceremony in Belgrade and the religious ceremony in his home were to be regarded as falling within the right to freedom of thought and religion and were, as such, protected under Article 9 of the European Convention on Human Rights. As to the religious calendar, it stated inter alia, that: “... the way in which [the applicant] entered the public arena by way of the religious calendar of 2004, which was distributed in the homes of believers in Bitola and further afield, the formulations he used, his position, the aims he wished to achieve and the consequences of his activities, analysed in the context of the freedom of thought, conscience and religion, as well as the right of freedom of religion of others, is an act which was directed towards the violation of the legal order which guarantees these rights. A criminal offence is committed when, irrespective of the manner it is undertaken, an action demonstrates that certain expressions were deliberately intended to serve as propaganda instigating ethnic, racial and religious hatred, division and intolerance ...” The Supreme Court further stated that: “The conduct of [the applicant], who was appointed exarch of the so-called Ohrid Archiepiscopate by the Patriarch of the Serbian Orthodox Church, with a view to creating a parallel Holy Synod in the Republic of Macedonia, went beyond the freedom of thought, conscience and religion. The facts of the case ... confirm that the public expression of thought, or as the convicted stated – his freedom of religion – by way of the religious calendar of 2004, which was addressed to orthodox believers in the Macedonian Orthodox Church, in the view of the Supreme Court, cannot be regarded as an expression of his personal intellectual stance nor it is an intellectual, theological and scientific opinion addressed to [those believers]. The calendar of 2004, by its contents and aim, was a direct violation of the freedom of others to have their own thought, conscience and religion, namely belief in the Macedonian Orthodox Church and its existence for centuries, in the canons of orthodox communion, in its ceremonies etc. The contents of the religious calendar directly incite and encourage religious intolerance and division among Macedonian believers in the Macedonian Orthodox Church. The rights of others, namely to the freedom of religion, entail respect for believers as stipulated in Article 9 of the European Convention on Human Rights. That, according to the Supreme Court, was violated with the provocative depiction of events in the calendar. Defamatory statements such as “those who claim that the Macedonian Orthodox Church exists spread heresy” and “the Macedonian Orthodox Church is heretical”, are, at the least, a somewhat unusual form of communication between believers and churches. [The applicant’s] expression ... acting always as an exarch appointed by the Serbian Orthodox Church, reaches high level of abuse and, as such, demonstrates a denial and violation of others’ freedom of thought and religion and cannot, accordingly, be tolerated in a free and democratic society. His activities are directed towards the believers in the Macedonian Orthodox Church in order to stir up religious hatred and intolerance.” Article 16, as far as relevant, provides as follows: “(1) The freedom of conviction, conscience, thought and public expression of thought is guaranteed ...” Article 19, as far as relevant and modified with Amendment VII, provides as follows: “(1) The freedom of religion is guaranteed. (2) The right to express one’s religion, freely and publicly, individually or with others, is guaranteed. (3) The Macedonian Orthodox Church, as well as the Islamic Religious Community in Macedonia, the Catholic Church, Evangelic Methodist Church, Jewish Community and other religious communities and groups are separate from the State and equal before the law ...” Article 50, insofar as relevant, provides as follows: “(1) Every citizen may seek protection of freedoms and rights set out in the Constitution before courts of general jurisdiction, as well as before the Constitutional Court of the Republic of Macedonia, in a procedure based on the principles of priority and urgency ...” “The Constitutional Court of the Republic of Macedonia: ... (3) protects the freedoms and rights of individuals and citizens concerning the freedom of conviction, conscience, thought and public expression of thought; political association and activity; and the prohibition of discrimination among citizens on the grounds of sex, race, religion, national, social and political affiliation; ...” Section 319 of the Criminal Code provides, inter alia, that any person incites national, racial or religious hatred, disagreement and intolerance by coercion, ill-treatment, or duress, who insults national, ethnic and religious symbols, or damages monuments and cemeteries, or in any other way incites national, racial or religious hatred, disagreement and intolerance shall be punished with one to five years’ imprisonment. Section 51 of the Rules of Procedure of the Constitutional Court, insofar as relevant, provides as follows: “Any citizen who considers that his or her right or freedom set out in Article 110 § 3 of the Constitution of the Republic of Macedonia has been violated by an individual act or action, may seek protection by the Constitutional Court within two months from the day he or she was served with the final individual act ...” | 0 |
dev | 001-104734 | ENG | MKD | ADMISSIBILITY | 2,011 | GALENA VRANISKOSKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 4 | Inadmissible | Christos Rozakis;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen | The applicant, Mrs Galena Vraniškoska, is a Macedonian national who was born in 1939. The applicant lives in Bitola. She submitted the application in her name and on behalf of Mr Argil Vraniškoski, her late husband, who died on 30 October 2005. The applicant was represented before the Court by Mr V. Georgiev, a lawyer practising in Bitola. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska. The facts of the case, as submitted by the parties, may be summarised as follows. Under a sales agreement of 1980, the applicant obtained title to agricultural land in a place called Kosa Tumba, near Bitola. According to the applicant, in 2002 the land authorities issued a certificate attesting that the plot in issue was outside the area designated for construction (надвор од градежен реон). On that property, the applicant and her husband constructed a weekend house and garage without a building permit, as was the case with houses built by other individuals in Kosa Tumba. The applicant lives in an apartment in Bitola. On an unspecified date in October 2003, they also started constructing a house of worship and supporting walls (hereafter referred to as “the structures”). On 7 October 2004 an inspector from the Ministry of Transport and Communications (hereafter “the Ministry”) carried out an on-site inspection of the property. A report was drawn up according to which the applicant and her husband had started building the structures without a building permit. The Ministry ordered them to demolish the structures immediately under threat of a forcible demolition (“the demolition order”). Referring to the on-site inspection and the report that had been drawn up, it stated that they had started building the structures without a permit. Under the order, the demolition costs were to be borne by the applicant and her husband. It relied on section 39 § 3 of the Construction Law, as valid at the material time, under which an appeal against the order would not have had suspensive effect (see “Relevant domestic law” below). In a separate decision, the Ministry decided that the demolition order had become enforceable (“the enforcement order”). It ordered the applicant and her husband to destroy the structures immediately. It reiterated that they were to bear the costs of demolition and that an appeal would not have a suspensive effect. In this context, it referred to section 270 § 2 (3) of the Administrative Proceedings Act of 1986 (“the Act”, see “Relevant domestic law” below), as valid at that time. The Government submitted copies of two delivery receipts (“the receipts”, доставници) according to which on 8 October 2004 the demolition and enforcement orders were served, in the applicant’s apartment, on a minister (свештеник) who had refused to identify himself and to give information about the applicant’s whereabouts. The minister had also refused to sign the receipts. Both receipts were dated and signed by a bailiff. On 14 October 2004 the Ministry issued an announcement informing the applicant that the demolition and enforcement orders were at its premises and that they would be posted on the Ministry’s notice board since she could not be found at her place of residence. On the same day, the bailiff, with a handwritten note on the announcement, indicated that it had been handed over, in the applicant’s apartment, to a minister who had refused to identify himself. The latter did not sign the announcement. According to the applicant, at midnight on 15 October 2004, about 200 armed police officers arrived on her property in Kosa Tumba accompanying workers engaged by the Ministry to enforce the demolition order. Eight police officers, without a court warrant or any other decision, entered the applicant’s weekend house and forced her husband and their son outside. They were allegedly forced to watch the demolition of the structures. The Government contested the applicant’s version of events regarding the demolition of the structures, without giving any further details. On 21 October 2004 the applicant and Mr Argil Vraniškoski requested the Ministry to serve the demolition order on them. They stated that they had never received it and referred to an announcement of 14 October 2004 on the notice board in the Ministry concerning their case. On 23 November 2004 the Ministry replied that there was evidence in the case file that the demolition order had been served on them and that accordingly there were no grounds for a repeated service. On 6 December 2004 the applicant and her husband appealed against the demolition and enforcement orders before the Government second-instance Commission (“the Commission”) arguing that they had never been served on them. They complained that even assuming that the announcement posted on the Ministry’s notice board was to be regarded as the equivalent of service, the demolition order could only have become enforceable 15 days after 14 October 2004, as set forth in section 94 of the Act. On 9 February 2005 they requested the Commission to decide, within 7 days, their appeals. On 3 March 2005 the applicant and her husband lodged an appeal on points of law with the Supreme Court complaining about the Commission’s failure to decide their appeals (тужба поради молчење на администрацијата). On 21 April 2005 the Commission dismissed, by two separate decisions, the appeals, finding that the demolition and enforcement orders had been given in accordance with the law. It stated that the applicant and her husband had started building the structures without a permit, as required under section 39 § 1 of the Construction Act. As to the applicant’s complaints about the improper service of the orders, the Commission stated: “... the Commission has examined the [applicant’s] arguments in the appeal and finds that they are unsubstantiated and without any legal effect, since no construction work can be undertaken without a building permit being obtained ...” On 4 June 2005 the applicant and her husband challenged the Commission’s decisions by way of an appeal on points of law in which they reiterated their earlier arguments. On 21 December 2005 the Supreme Court rendered two decisions dismissing their appeals. It found no force in their arguments that the administrative bodies had ignored their complaints about the alleged failure to serve the demolition order on them. In this connection it stated that “the service was carried out in accordance with the Act”. Referring to the case file, the court held that the inspector responsible had correctly ordered, under section 39 of the Construction Act, the demolition of the structures. The decisions were sent to the applicant on 19 January 2006. Section 81 of the Act, as valid at the material time, provided that a decision should, in principle, be handed over to the individual concerned in person. Under section 83, the decision was to be served, in principle, at the home of the recipient. Under section 84, if the recipient was not at home, the decision would be served on an adult member of his or her family or to a housekeeper or neighbour, with their consent. Under section 86 § 1 of the Act, when the service could not be effected in accordance with section 84, the bailiff would return the decision to the competent body. A written announcement indicating the place where the decision was kept would be posted on the door of the recipient’s home. Under sub-section 2 of this paragraph, such service was regarded lawful and any later damage or destruction of the announcement would not affect the lawfulness of the service. Section 94 of the Act provided that in the case of multiple unidentifiable recipients a decision would be served by way of a public announcement on the notice board of the competent body. Service would be considered to have been effected 15 days after the posting of the announcement. Under section 95 of the Act, if the person concerned or an adult member of his or her family refused to be served with a decision without any legal ground, the bailiff would either leave the decision in the recipient’s home or would post it on the door, which would be considered as equivalent to the service. The bailiff would mark the date, hour and reasons for refusal of the service, as well as the place where the decision was put. Section 270 § 2 (3) provided that a first-instance decision would become enforceable after being served on the interested party. That applied where an appeal did not suspend enforcement. Under section 39 (1) and (3) of the Construction Act, as then valid, the competent inspectorate would order immediate demolition of buildings constructed without a building permit. An appeal did not suspend the enforcement of the demolition order. Under section 121 of the Property Act, a construction built without a building permit does not confer to an investor title to the unlawfully erected building. Until such building is validated or demolished, the investor, equally to an owner, has a right to judicial protection, unless otherwise regulated by law. | 0 |
dev | 001-57888 | ENG | BEL | CHAMBER | 1,994 | CASE OF DEBLED v. BELGIUM | 3 | No violation of Art. 6-1 | C. Russo;John Freeland;N. Valticos | 6. Dr Georges Debled, a urologist of Belgian nationality, lives and practises in Paris. 7. On 10 September 1982, 5 November 1982, 17 March 1983 and 13 August 1984, at a time when the applicant was still practising in Belgium, patients of his complained to the Brabant Ordre des médecins (medical association) that the fees he charged were excessive. After considering these complaints, the Provincial Council summoned the applicant to appear before it on 5 March 1985. The council’s registered letter of 11 February 1985 also informed him that he would be heard on the following counts: "1o that on numerous occasions in recent years, despite the council’s warnings, recommendations and cautions, he charged his patients excessive fees, and persisted in doing so, in breach of the principles of moderation and discretion incumbent on medical practitioners ... 2o that, after various complaints from patients regarding excessive fees, he refused to follow the recommendation of the council’s fees disputes committee that the cases be submitted to it; 3o that, through his attitude, he showed total contempt for the council’s warnings, demonstrating by his statements that he was guided in his practice of medicine by concerns of a wholly pecuniary nature; 4o that without valid reason he failed to take part in the [council’s] elections of March 1982." 8. At the request of the applicant’s lawyer, the hearing was postponed to 2 April 1985. 9. In pleadings filed on the day of the hearing, Dr Debled, referring inter alia to certain provisions of the Judicial Code and of the Royal Decree of 29 May 1970, challenged, by way of main submission, "the council as a whole" and, in the alternative, five doctors sitting on the council, on the ground that, even before the hearing, they had "individually expressed their opinion concerning Dr Debled’s conduct and had described it in negative terms". He also reserved the right to contest both the admissibility of the case brought against him and its merits. In additional submissions made at the hearing he requested that "the proceedings be stayed ... until the appeal [he] intend[ed] to lodge against the council’s decision had been heard". Finally, he refused to present argument on the merits, despite having been invited to do so by the council, and withdrew from the hearing. 10. The council gave its decision on 2 April 1985. It first held that the legislative provisions relied on by the applicant had no bearing on the facts of the case and therefore could not constitute the basis for his application challenging its members. It then noted that none of the members of the Ordre whom he had accused of having a "negative attitude towards him" sat on the council to which it fell to determine the disciplinary proceedings. Lastly, it pointed out that four of the council members whom the applicant had challenged had not heard the case in question and that the fifth had only been present in an advisory capacity and had not taken part in the deliberations. It accordingly dismissed the application challenging the council en bloc and ruled that the application concerning the five medical practitioners was inadmissible and ill-founded. The council gave its decision on the request for a stay of the proceedings in the following terms: "... quite apart from the inappropriate references to legislation which has no bearing on the case..., [the additional] submissions state in a curiously implausible and contradictory manner that ‘by refusing to give a decision on the challenges, the council dismissed them’; ... at no time did the council refuse to give a decision on the challenges; ... it merely informed Dr Debled and his lawyers that it would rule on the challenges and the merits in a single decision; ... during the hearing it did not take any decision whatsoever on the challenges and ... Dr Debled was consequently acting precipitately and in a way which prejudged a decision that had not been taken when he stated that he intended to appeal against that decision and requested that the proceedings be stayed pending the outcome of that hypothetical appeal. ... there is no reason to grant that request." With regard to the merits of the case, the council, giving its decision in absentia, considered that most of the charges against Dr Debled had been substantiated and imposed "on [him] the penalty of one year’s suspension of his right to practise medicine". 11. On 11 April 1985 Dr Debled lodged an appeal against the decision of 2 April 1985 with the French-language Appeals Board of the Ordre des médecins. 12. On 2 October 1986 he was summoned to a hearing to be held on 20 October. On that date he requested a three-month adjournment to enable his new lawyers to prepare his defence. After deliberating, the Appeals Board apparently allowed him an adjournment until 4 November 1986. On 21 October 1986 he laid a complaint for falsification and use of falsified documents against the members of the bureau of the council of the Ordre des médecins (Dr Remion, Dr Govaerts, Dr Roose, Dr Farber and Dr Brihaye). He disputed certain entries in the minutes of meetings held on 14 June 1983 and 9 October 1984 to consider the complaints against him. He subsequently also lodged the following complaints: - on 31 October 1986 against Mrs Beaupain and Mrs Couturier, the judges (magistrats) who had sat on the bureau and council of the Ordre during those meetings; - on 14 November 1986 against Dr Farber, the vice-president of the Ordre des médecins, concerning statements made to the press on 5 November 1986; - on 25 November 1986 against the same person for making misleading statements and for breach of confidentiality. No information has been provided as to what action was taken in response to those complaints. 13. In the meantime, on 3 November 1986 Dr Debled applied to the Court of Cassation for a transfer of jurisdiction, claiming that there were reasonable grounds for suspecting the Appeals Board of bias (suspicion légitime). He called into question the impartiality of two of the five full members, Dr Raickman and Dr Vossen, and three of the five substitute members, Dr Beernaerts, Dr Daxhelet and Dr Gelin, who were or had been officials of the medical unions. He first alleged "in general terms" that the medical unions had gradually taken control of the various institutions of the Ordre des médecins with the result that the policy pursued by the association in fact simply reflected the unions’ policies, which were designed purely to safeguard the interests of union members. Consequently, those who opposed this policy through the way in which they practised and the opinions they expressed had good reason to fear that, when hearing a case that concerned them, the union members would not show the impartiality to which everyone was entitled. He maintained, in addition, that the members of the Appeals Board bore a grudge against him personally because of the views he had expressed. In 1981 he had denounced the collusion between the Ordre des médecins and the unions and he had joined the "call of the 300" medical practitioners angered by the Ordre’s backing of a health care strike organised by the unions. Lastly, he pointed out that the capacity of the disciplinary bodies of the Ordre des médecins to conduct proceedings in an objective and impartial manner had been questioned on many occasions by the press, among others, especially in so far as it was possible to be a member of those bodies and a member of the unions’ organs at the same time. 14. In a judgment of 21 May 1987 the Court of Cassation ruled inadmissible the application for a transfer of jurisdiction. It held that Article 12 para. 1 of the Royal Decree of 10 November 1967 on the Ordre des médecins (see paragraph 22 below) had set up only one French-language Appeals Board and that therefore, as a matter of law, it would be impossible to transfer jurisdiction to another French-speaking Appeals Board. Removing the case from the board without remitting it to another tribunal would, moreover, be tantamount to a denial of justice. 15. On 29 September 1987 the Appeals Board gave its decision in absentia since Dr Debled had not made any further appearances before it after the hearing of 20 October 1986 (see paragraph 12 above). It annulled the decision of 2 April 1985, on the ground that six doctors who had conducted the preliminary investigation had taken part in the deliberations, and suspended Dr Debled’s right to practise medicine for three months. At the same time it dismissed the applications challenging the council members and requesting a deferral of the proceedings, finding that "in his appeal Dr Debled [had] failed to establish that [his] applications were well-founded as to either the law or the facts". 16. On 20 October 1987 Dr Debled asked the Appeals Board to set aside its decision of 29 September 1987 pursuant to Article 34 of the Royal Decree of 6 February 1970 (see paragraph 25 below). He alleged, inter alia, that Royal Decree no. 79 on the Ordre des médecins (see paragraph 22 below) and Royal Decree no. 78 on the medical profession, the practice of related professions and the medical committees were manifestly unlawful because certain essential procedural requirements had not been complied with prior to their adoption. In his submissions he requested the Appeals Board to rule as follows: "Primarily Declare that the Appeals Board does not legally exist or, at least, that it is unlawfully constituted, and that the same applies to the Brabant Provincial Council of the Ordre des médecins, and accordingly hold that the measure ordered by the Provincial Council against the applicant was unlawful; discontinue the proceedings brought against the applicant or, at least, stay the proceedings until another joint, French-language Appeals Board has been formed in accordance with the Act of 25 July 1938 and more particularly section 11 of that Act. In the alternative Stay its proceedings on account of the various complaints laid by the applicant, together with applications to join the proceedings as a civil party filed by him, until the relevant criminal proceedings are concluded, in accordance with the principle that criminal proceedings take precedence over civil proceedings. In the further alternative Find that the Appeals Board, which annulled the decision appealed against, could under no circumstances rely on any of the documents produced before the Provincial Council because those documents were inadmissible. In the even further alternative ... dismiss all the charges and complaints brought against the applicant." 17. On 12 November 1987 Dr Debled was summoned to appear before the Appeals Board on 19 January 1988. At the hearing he immediately challenged Dr Cattiez, Dr Andri and Dr Raickman. He alleged that they were influential members of the medical unions, which he had consistently opposed - in particular by denouncing the collusion between the Ordre and the unions and by taking part in the "call of the 300". He likewise challenged Judge Thiry on the ground that his son was one of the medical unions’ lawyers. After hearing Dr Debled, the Appeals Board withdrew to deliberate. It then decided to adjourn the proceedings until 2 February 1988 in order to enable it to "reconstitute a full board" in the meantime. 18. At the hearing on 2 February 1988 Dr Debled filed a further application challenging Mr Thiry. In addition, he challenged Dr Fagnart and Dr Lange, in the latter’s case on the ground that his son was a member of the medical union of the provinces of Liège and Luxembourg. He declared, furthermore, that he intended to persist with the applications he had filed at the hearing on 19 January. After hearing Dr Debled, the Appeals Board decided to join the interlocutory proceedings to the merits, whereupon the applicant asked that the record should state that he reserved his position concerning both the failure to take an immediate decision on the challenges and their joinder to the merits. 19. On 15 March 1988, at a public hearing, the Appeals Board dismissed the objection based on the alleged unlawfulness of Royal Decrees nos. 78 and 79 and ruled that the application of 20 October 1987 requesting it to set aside its earlier decision was ill-founded (see paragraph 16 above). It noted that the Provincial Council’s decision of 2 April 1985 (see paragraph 10 above) had been annulled and confirmed the decision of 29 September 1987 (see paragraph 15 above) suspending Dr Debled’s right to practise medicine for three months. On the subject of the challenges, it ruled as follows: "... the president informed each of the challenged members of the existence of a challenge and submitted their individual cases to the board, which in each case took a majority vote on the challenge without the member concerned being present, but after hearing that member; ... with regard to the challenges against Dr Fagnart and Dr Lange, the board notes that the applications are neither dated nor signed; they are thus flawed and hence inadmissible; ... with regard to the challenges against Dr Cattiez, Dr Andri and Dr Raickman and the challenges concerning Judge Thiry, the board notes that they are all based on Article 828, 11o, of the Judicial Code and that the documents produced by Dr Debled do not reveal the slightest trace of any hostility, even less of fundamental hostility; those challenges are accordingly completely unfounded." 20. On 18 April 1988 Dr Debled appealed on points of law against the decision of 15 March 1988. Two of his five grounds were based on Article 6 para. 1 (art. 6-1) of the Convention and the general principle of law that a judge must be impartial. In his first submission he also alleged a breach of Article 43 of the Royal Decree of 6 February 1970 governing the organisation and functioning of the councils of the Ordre des médecins and of Articles 2 and 837 of the Judicial Code (see paragraphs 25 and 26 below). Firstly, there was no legal justification for the decision to join the challenges to the merits and, secondly, those members whose impartiality had been called into question could not take part in a decision to postpone a ruling on the applications concerning them without engendering reasonable doubts as to the impartiality of the tribunal required to determine the merits of the challenges and of the charges. In his second submission Dr Debled complained of the fact that the challenges against Dr Cattiez, Dr Andri, Dr Raickman and Judge Thiry had been considered ill-founded "admittedly without the challenged member being present, but each time in the presence of the other challenged members, whereas the grounds for the challenges [were] identical". 21. In a judgment of 13 April 1989 the Court of Cassation dismissed the appeal. It observed, in particular, that: " ... since the members of the Board who had been challenged did not take part in the decision on the individual challenges concerning them, the mere fact that they participated in the decisions on the other challenges, made on the basis of the grounds reproduced in the appeal submission, does not constitute a breach of either the legislation or the general principle of law referred to by the appellant." 22. The Ordre des médecins is currently governed by Royal Decree no. 79 of 10 November 1967, issued pursuant to an Act of 31 March 1967 "investing the King with certain powers with a view to ensuring economic revival, acceleration of regional reconversion and a stable, balanced budget". That decree provides in particular: "1. The French-language Appeals Board and the Dutch-language Appeals Board shall each be composed of: 1o five full members and five substitute members, who are medical practitioners, elected for six years and entitled to stand for re-election. Each Provincial Council shall elect one of the five members of the Appeals Board corresponding to the language it uses. The member shall be elected from among the practitioners of Belgian nationality who have been on the council’s register for at least one year when the election is held ... 2o five full members and five substitute members, who are conseillers (judges) at the Court of Appeal, appointed by the King for six years; ... 2. The King shall designate the president and rapporteurs of each board from among the judicial members. ..." "... 4. The Appeals Boards shall take cognisance of all aspects of a case, even where only the medical practitioner has appealed. The Appeals Board must have a two-thirds majority to impose a penalty where the Provincial Council did not so decide or to impose a more severe penalty than that decided by the council." 23. In accordance with Royal Decree no. 79, the Royal Decree of 6 February 1970, as amended on 9 August 1971 and 3 December 1979, governs the organisation and functioning of the councils of the Ordre. 24. The councils, which are responsible for "ensuring observance of the rules of medical ethics and upholding the reputation, standards of discretion, probity and dignity of the members of the Ordre", are required to "discipline misconduct by registered members in or in connection with the practice of their profession and serious misconduct committed outside the realm of their professional activity, whenever such misconduct is liable to damage the reputation or dignity of the profession" (Article 6, 2o, of Royal Decree no. 79). In addition to a warning, censure or reprimand, the councils are empowered to suspend the right to practise medicine for a period not exceeding two years or to strike the practitioner in question off the register of the Ordre (Article 16). 25. The following provisions are relevant to the instant case: "The Appeals Boards’ deliberations and decisions shall be valid only if, in addition to the registrar, at least three elected members and three designated members are present. Without prejudice to the application of the provisions of Article 32 of this decree, the Appeals Boards’ decisions shall be taken by a majority vote." "An application to the Appeals Board to set aside its own decision given in absentia shall be filed by registered letter addressed to the president of the Appeals Board concerned." "A medical practitioner may avail himself of his right to challenge the members of the Provincial Council and Appeals Board required to give a decision concerning him." "Any member of the Provincial Council or Appeals Board may be challenged for the reasons laid down in Article 828 of the Judicial Code." "If he is not to forfeit his right to challenge the members of the council or board, the medical practitioner must, at the latest before the case is pleaded at the hearing, submit to the president of the competent council or board an application, which must be dated and signed and which shall set out the names of the challenged members and the grounds for the challenge." "The president of the council or board shall immediately inform the member at whom the challenge is directed; he shall submit the challenge to the council or board, which shall take a majority vote on it, after hearing the challenged member but without that member being present. The reasoned decision shall be served on the medical practitioner without delay. An appeal shall lie against a decision by the Provincial Council dismissing a challenge; such an appeal must be lodged within eight days of the notification of the decision." 26. The relevant provisions of the Judicial Code read as follows: "The rules set out in this Code shall apply to all proceedings except those governed by legislation that has not been expressly repealed or by principles of law whose application is incompatible with that of the provisions of the Code." "Any judge may be challenged for the following reasons: ... 7o if the judge is the guardian (tuteur), auxiliary guardian (subrogé tuteur) or limited guardian (curateur), temporary trustee (administrateur provisoire) or guardian ad litem (conseil judiciaire) ... of one of the parties; if he is an administrator or agent (commissaire) of any establishment, company or association which is a party to the case; ... ... 11o if there is fundamental hostility (inimitié capitale) between him and one of the parties; if he has made attacks, proffered insults or uttered threats, in speech or in writing, since the commencement of the proceedings or in the six months preceding the challenge." "From the day on which the judge is notified, all judgments and proceedings shall be suspended. Nevertheless, if one of the parties maintains that the proceedings are urgent and that the delay involves a risk, that party may request the president of the relevant court to organise a hearing of the interlocutory application; ... In allowing that request, the president shall order that another judge should deal with the application." 27. According to Belgian legal theory, "fundamental hostility exists if facts of a sufficiently serious nature clearly reveal that the judge feels real hatred or at least animosity such that his judgment is destroyed or impaired" (Fettweis, Manuel de procédure civile, 1987, p. 429, note 1). | 0 |
dev | 001-101536 | ENG | DEU | ADMISSIBILITY | 2,010 | KÖPKE v. GERMANY | 3 | Inadmissible | Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva | The applicant, Ms Karin Köpke, is a German national who was born in 1953 and lives in Feldberg. She was represented before the Court by Mr K. Nicolai, a lawyer practising in Neustrelitz. The applicant started working as a shop assistant in 1968. From 1 August 1991 until her dismissal on 5 November 2002 she was employed as a shop assistant and cashier in a supermarket in Feldberg. She has been unemployed since then. The applicant's employer noted in September 2002 that there were irregularities concerning the accounts in the drinks department of that supermarket, in that the sum of the till receipts for empty deposit bottles which had been printed out exceeded the total value of empty deposit bottles received by the supermarket. It suspected the applicant and another employee of having manipulated the accounts. Between 7 October 2002 and 19 October 2002 the applicant's employer, with the help of a detective agency, carried out covert video surveillance of the supermarket's drinks department. The camera covered the area behind the cash desk including the till, the cashier and the area immediately surrounding the cash desk. The detective agency made a video and examined the data obtained. It drew up a written report and produced several photos from the recording, which it sent to the applicant's employer together with two copies of the video (one concerning the applicant and one concerning the other employee monitored). On 5 November 2002 the applicant's employer dismissed the applicant without notice for theft. The applicant was accused of having manipulated the accounts in the drinks department of the supermarket and of having taken money (some 100 euros during the period in which she had been filmed) from the tills for herself which she had hidden in her clothes. On 14 November 2002 the applicant, who was represented by counsel throughout the proceedings, brought an action in the Neubrandenburg Labour Court against her employer, requesting that the court find her dismissal invalid. She further claimed compensation for non-pecuniary damage she had suffered as a result of the covert video surveillance and requested to be given the videotapes, including all copies made thereof. She was granted legal aid for these proceedings. The applicant contested having manipulated the tills or having stolen money and submitted that she had only put tips she had received from customers into her pockets. In accordance with the supermarket's practice, she had later put these tips into a separate till where all tips received by supermarket staff were collected. She further objected to the use of the covert video surveillance, arguing that this surveillance had breached her right to protection of her privacy. On 29 August 2003 the Neubrandenburg Labour Court dismissed the applicant's action, having held a hearing in which it heard as witnesses the three staff members of the defendant party involved in the applicant's video surveillance and dismissal and having watched the video tapes submitted by the defendant party. The Labour Court found that the defendant party had been entitled to dismiss the applicant without notice. It considered that the defendant party had been authorised to observe the applicant by means of covert video surveillance and to use the recording obtained thereby. The losses discovered in the drinks department during stocktaking and the irregularities between the amount of money paid out for returned empty deposit bottles and the value of the full bottles sold in the market during the applicant's working time had constituted sufficient grounds for the defendant party to order her surveillance. The defendant party's property rights had been seriously interfered with. In such circumstances, the video observation of an employee was lawful, as had been confirmed by the Federal Labour Court in its judgment of 27 March 2003 (file no. 2 AZR 51/02, see 'Relevant domestic law and practice' below). In case of the covert video surveillance of an employee on suspicion of theft, the employer's fundamental right to respect for his property rights had to be weighed against the employee's fundamental right to privacy vis-à-vis third persons, including his employer or his colleagues. Special circumstances were necessary to justify an interference with the employee's right to privacy, which had to be proportionate. Weighing these competing interests in the present case, the Labour Court found that the defendant party had been entitled to put the applicant under covert video surveillance. Having regard to the organisation of work in the drinks department of the supermarket, there were no other means to protect the defendant party's property rights. The surveillance had not been random, but carried out following suspicions of theft against two employees. The video records obtained had been used by the management staff of the defendant party and had been submitted to the court in order to justify the applicant's dismissal without notice. There was no risk of the records being used in a different manner. Therefore, the applicant neither had a right to non-pecuniary damage nor to be given the video tapes. The Labour Court, having regard to the evidence before it including the information obtained by examining the video tapes in question, found that the defendant party had had sufficient grounds to conclude that the applicant had repeatedly committed offences against its property during the relevant period. The applicant had not proven that the money she had undeniably taken from the till had been tips. In any event, it had not been necessary to hear the witnesses named by the applicant to prove that the money concerned had been tips because such tips were, in any event, also the property of the defendant party according to the work regulations in place. On 18 May 2004 the Mecklenburg Western-Pomerania Labour Court of Appeal, which had granted the applicant legal aid, dismissed the applicant's appeal and refused to grant her leave to appeal on points of law. The Labour Court of Appeal, referring to the case-law of the Federal Labour Court (judgment of 27 March 2003, file no. 2 AZR 51/02, see 'Relevant domestic law and practice' below), endorsed the Labour Court's finding that the defendant party had been authorised to carry out the covert video surveillance of the cash desk area of the drinks department. Her dismissal without notice had been justified as, following the examination of the videotapes in the proceedings, the applicant had stopped contesting that she had taken money from the till on several occasions. The covert video surveillance of the applicant had complied with section 6b of the Federal Data Protection Act (Bundesdatenschutzgesetz, see 'Relevant domestic law and practice' below), which transferred Directive 95/46/EG into domestic law. The workplace of a cashier behind the cash desk was not an area in the supermarket accessible to the public. Therefore, video surveillance thereof did not have to be made visible under section 6b § 2 of that Act. In any event, a cashier whose surveillance had been justified could not rely on the fact that the video surveillance had also covered customers who were standing at the cash desk and in respect of whom the covert video surveillance had not been permitted. The Labour Court of Appeal further considered that it had not been necessary to take further evidence in the proceedings, in particular to play the videotapes, after the applicant had stopped contesting having taken money from the till and having put it in her pockets on several occasions. As this fact alone justified the applicant's dismissal without notice, the use of the impugned videotapes as evidence in the proceedings had not been necessary. Even assuming that the defendant party had illegally obtained knowledge of the fact that the applicant had taken money from the till and even if this evidence were excluded, the defendant party had not been prevented from alleging this issue and the applicant had been obliged to reply truthfully. Moreover, it had not been necessary to take further evidence in order to verify whether the applicant had taken only tips from the till which she had later put into another till designated for tips. An employer could not be expected to further employ a cashier who put money from the till into her pockets without keeping any records on where the money was to be found. The witnesses named by the applicant to prove that there had been a separate till for tips and that the applicant had put money into that till would not be sufficient to prove that all the money taken from the till in the drinks department had been tips and had been put into the till designated for tips. The Labour Court of Appeal finally found that, at least at that stage of the proceedings, the applicant could not ask for the videotapes to be erased. The defendant party had a right to keep the videotapes at least until a final decision was given in the court proceedings brought by the applicant and until the admissibility and necessity of the tapes as evidence was no longer at issue (compare section 6b § 5 of the Federal Data Protection Act). By a decision of 14 December 2004 the Federal Labour Court dismissed the applicant's complaint about the refusal of the Labour Court of Appeal to grant her leave to appeal. It further dismissed the applicant's request for legal aid as her complaint had not had reasonable prospects of success. The Federal Labour Court found, in particular, that the Labour Court of Appeal had not diverged from the Federal Labour Court's case-law. In any event, the Labour Court of Appeal had left open whether the video surveillance of the applicant had been lawful and whether the evidence obtained thereby should have been used in the proceedings before the labour courts. It had instead based its judgment on facts uncontested between the parties. As it had considered the applicant's dismissal lawful, it had also considered her claim for damages ill-founded. The lawfulness of the video surveillance had therefore been irrelevant to the outcome of the proceedings. On 31 January 2005 the applicant lodged a constitutional complaint with the Federal Constitutional Court. She argued, in particular, that her right to privacy (allgemeines Persönlichkeitsrecht) had been breached by the unlawful covert video surveillance, by the processing of the data obtained thereby and by their use in the proceedings before the labour courts, which had refused to order the destruction of the video recording. Moreover, she submitted that her right to a fair trial and to be heard had been violated in that the labour courts had failed to take relevant evidence. She further submitted that the Federal Labour Court's refusal to grant her legal aid had breached her right of equal access to court. On 28 June 2006 the Federal Constitutional Court declined to consider the applicant's constitutional complaint and dismissed the applicant's request to be granted legal aid (file no. 1 BvR 379/05). It found that the applicant's complaint had no prospects of success as there was nothing to indicate that her fundamental rights had been violated by the decisions of the labour courts. Provisions aimed at protecting individuals against infringements of their right to privacy as a result of the way in which their personal data are handled are contained in the Federal Data Protection Act. Changes to that Act entered into force in 2001 in order to implement Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. Section 6b of the Federal Data Protection Act contains rules on the monitoring of publicly accessible areas with optic-electronic devices. Such video surveillance is lawful only in so far as it is necessary, in particular, to pursue legitimate aims for specifically defined purposes and if there are no indications of overriding the legitimate interests of the data subject (section 6b § 1 no. 3). Suitable measures shall be taken to make it visible that the area is being monitored and to identify the controller (section 6b § 2). The data shall be erased as soon as they are no longer needed to achieve the purpose or if further storage would conflict with the legitimate interests of the data subject (section 6b § 5). On 1 September 2009 a new section 32 of the Federal Data Protection Act entered into force. It codifies (see judgment of the Berlin Labour Court of 18 February 2010, file no. 38 Ca 12879/09)) the previously developed case-law of the Federal Labour Court on video surveillance at the workplace (see below). Under paragraph 1 of section 32, an employee's personal data may be collected, processed or used for employment-related purposes where necessary for decisions regarding hiring or, after hiring, for carrying out or terminating the employment contract. Employees' personal data may be collected, processed or used to investigate criminal offences only under the following circumstances: if there is a documented, factual reason to believe that the data subject has committed a criminal offence in the course of his work; if the collection, processing or use of such data is necessary to investigate the criminal offence; if the employee does not have an overriding legitimate interest in ruling out the possibility of the collection, processing or use of such data, and, in particular, if the type and extent are not disproportionate to the aim pursued. On 27 March 2003 the Federal Labour Court rendered a leading judgment on the lawfulness of covert video surveillance in the workplace (file no. 2 AZR 51/02). The Federal Labour Court, upholding the judgment rendered by the Schleswig-Holstein Labour Court of Appeal on 4 December 2001 (file no. 1 Sa 392 b/01), found that the covert video surveillance of an employee by his employer interfered with the employee's fundamental right to privacy as guaranteed by Article 2 § 1, read in conjunction with Article 1, of the Basic Law, which also had to be respected in the relationship between private persons, including employment relations. This right had to be weighed against the employer's interest in securing evidence for his claim, having regard to the necessity of an effective judicial system required by the rule of law. However, such an interference with the employee's right to privacy was justified and did not entail an exclusion of the evidence obtained thereby in subsequent court proceedings if there was a substantiated suspicion that the employee had committed an offence or was guilty of other serious misconduct towards his employer, if less intrusive means to examine the suspicion had been exhausted, if the video surveillance was, in practice, the only means which remained to verify the suspicion and if it was not as a whole disproportionate. The Federal Labour Court confirmed this judgment in several subsequent decisions (see the decision of the Federal Labour Court of 29 June 2004, file no. 1 ABR 21/03; decision of 14 December 2004, file no. 1 ABR 34/03; and decision of 26 August 2008, file no. 1 ABR 16/07). | 0 |
dev | 001-95543 | ENG | SVK | ADMISSIBILITY | 2,009 | KOVACOVA AND OTHERS v. SLOVAKIA | 4 | Inadmissible | Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza | The applicants, whose particulars appear in the Appendix, are four Slovak nationals. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs M. Pirošíková. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants’ family owned a plot of land in the Lorinčík area. It was originally classified as a field. In the 1950s the State entrusted various public entities with the administration and use of the land, of which the members of the applicants’ family formally remained the owners. The applicants each inherited a share in the plot. Under a contract of 1980 the right of temporary use of the land was eventually conferred on the Slovakian Union of Fruiterers and Gardeners for a period of thirty years. The area where the plot is located was turned into a “garden community” consisting of individual gardens which were put at the disposal of third parties, members of the above Union (“the gardeners”). The plot was reclassified as a garden and it has since been used as such a garden. In the early 1990s the applicants commenced asserting their rights in respect of the plot. The relevant action and proceedings are described below. On 14 February 2005 the Košice II District Court granted the applicants’ action of 1995 and ordered the gardeners to vacate land which was outside the limits of the garden community. The applicants appealed only against the decision relating to the costs of the proceedings. One of them, Ms M. Kováčová, also complained that no compensation had been paid for the use of their land in the garden allotment. On 28 April 2006 the Košice Regional Court ordered the first-instance court to review its decision on the costs of the proceedings. The claim for compensation was outside the purview of the court of appeal as the plaintiff had not submitted it in the proceedings at first instance. The remaining part of the District Court’s judgment became final. As from 1992 the applicants repeatedly and unsuccessfully attempted to conclude a lease contract with the gardeners. In a letter of 5 March 1993 one of the applicants stated that she considered 1 to 3 Slovak korunas (SKK) per square metre and year to be a reasonable sum. On 27 December 1995 the applicants lodged an action with the Košice II District Court. They claimed payment of rent in respect of the land used by the gardeners for the period between 2 August 1993 and 2 August 1996. They relied on section 22(2) of the Land Ownership Act 1991, which provides that if no other arrangement has been made between an owner and an occupant of land in a garden community, their relationship would become ex lege that of the parties to a lease. The applicants also claimed that the defendants should be ordered to vacate the land. In the subsequent proceedings the District Court had regard to two expert opinions. It noted that under the law then in force (Regulation 465/1991 which governed valuation of property for administrative purposes) the maximum rent for similar land was four Slovakian korunas (SKK) per square metre. At a hearing held on 24 February 2004 the applicants stated that they claimed SKK 2.9 as yearly rent for a square metre of their land. In its judgment of 20 March 2006 it held that the amount claimed by the applicants, namely SKK 2.9 per square metre plus default interest, was appropriate. It therefore granted their action. The defendant appealed. The case was subsequently remitted at first instance. On 2 May 2008 a different expert concluded, with reference to Regulation 465/1991 and the Land Ownership Act 1991, that the rental value of the applicants’ land had been SKK 0.07285 per square metre between 1993 and 1996. On 28 May 2008 the applicants challenged that valuation. With reference to the relevant regulation they alleged that in the area concerned the rent was fixed at SKK 4 per square metre. On 7 September 2009 the District Court ordered a fourth expert opinion on the rental value of the applicants’ land between 2 August 1993 and 2 August 1996. The proceedings are pending. On 16 January 1998 the gardeners requested under section 7(1) of Law no. 64/1997 on the use of plots of land in allotment gardens and arrangements as regards their ownership (Zákon o užívaní pozemkov v zriadených záhradkových osadách a vyporiadaní vlastníctva k nim – “Law no. 64/1997”) that the tenancy and ownership relations in respect of their gardens be settled by the Košice II District Office in a land consolidation procedure under section 7(4) of that Act. On 20 August 1999 the district office made a formal announcement to the applicants under section 18(1) of Law no. 64/1997 of the commencement of the procedure under section 7(4) of the Act. The announcement contained a register of the original ownership and a surveyor’s plan concerning the current state of the land (“the preliminary inventory”). The applicants had an option to buy the constructions and vegetation situated on their plot. On 4 November 1999 the district office approved the preliminary inventory under section 9(4) of the 1997 Act, observing that no objections to it had been raised. On 19 November 1999 the applicants challenged the decision of 4 November 1999 by an administrative appeal. They opposed the consolidation procedure as such; claimed that the gardeners’ use of their land was illegitimate; challenged inconsistencies in the preliminary inventory; and invoked the protection of their property rights under the Constitution. On 31 January 2000, following a hearing, the Košice Regional Office quashed the decision of 4 November 1999 and remitted the matter to the district office for re-consideration. It held that the District Office had failed to examine adequately whether the gardeners’ request of 16 January 1998 complied with the applicable procedural requirements and to determine objections which the applicants had raised in various forms in respect of the consolidation procedure and the preliminary inventory. On 14 February 2000 the district office decided to stay the proceedings under Law no. 64/1997. The determination of the validity of the contract of 1980, which had been challenged by the land owners, was prejudicial to the consolidation procedure. Ms M. Kováčová, who had raised that objection, was invited to institute separate proceedings before a court within thirty days with a view to having that issue determined. On 3 August 2000 the district office decided to resume the proceedings as it had been established that Ms M. Kováčová had not complied with the above instruction in that she had failed to challenge the contract of 1980 before a civil court. There was thus no obstacle to the land consolidation. On the same day the district office again approved the preliminary inventory. On 24 October 2000, on Ms M. Kováčová’s appeal, the regional office upheld the decision of 3 August 2000. On 20 February 2001 the district office invited the applicants under section 10(1) of Law no. 64/1997 to state whether they preferred to be compensated by being granted a substitute plot or paid an amount of money in lieu of their land. As to the substitute plot, a specific proposal was made. On 28 September 2001 the district office ruled that three of the applicants were to be compensated financially as they had made no claim for substitute land. On 25 September 2002 the regional office ruled that the remaining applicant, Ms M. Kováčová, would also be compensated financially on the ground that she had rejected the proposed plot. The decision was upheld on her appeal on 18 November 2002 by the Ministry of Agriculture. Its decision stated, inter alia, that the plaintiff challenged the validity of the legal act of 1980 which placed the land at the gardeners’ disposal and that it was open to her to bring a civil action with a view to having that issue determined. On 6 February 2003 the district office approved a project of consolidation of the land in question. On 12 March 2003 it ordered its implementation. The project presupposed that the gardeners would become the owners of their gardens and that the original owners of the land concerned would become the owners of specific substitute land or, as in the case of the applicants, would be financially compensated. The relevant documents indicate that the compensation payable to the applicants amounted to SKK 7.5 per square metre of their land. On 18 August 2003 the Regional Office upheld that decision. On 19 September and 1 December 2003 respectively the district office and, on the applicants’ appeal, the regional office, approved the implementation of the project. The decision became final and binding on 11 December 2003. By virtue of that decision the gardeners became the owners of their gardens. In 2004 their ownership title was recorded in the Land Registry. Ms M. Kováčová’s request for the reopening of the proceedings was refused on 25 August and 8 November 2004 by the regional office and, on her appeal, by the Ministry of Agriculture on the ground that she had not submitted new relevant information within the meaning of the applicable procedural rules. The administrative authorities had regard to the applicant’s argument that the contract of 1980 allowing the gardeners to use the land was void. They noted that the plaintiff, despite several requests, had not been shown to have challenged the validity of that contract before a court. On 16 May 2007 the Košice Regional Court dismissed the applicants’ action challenging the lawfulness of the administrative authorities’ order of 2003 for implementation of the consolidation project under Law no. 64/1997. The judgment stated, inter alia, that in the context of the proceedings complained of, that is concerning the order for implementation of the consolidation project, the administrative authorities could no longer examine the argument about alleged flaws in the 1980 contract under which the land had been put at the gardeners’ disposal. That issue fell to be determined by a civil court in a separate set of proceedings. The Regional Court found no flaws rendering unlawful the proceedings complained of and the decisions taken. The applicants appealed and argued that the regional court had disregarded their arguments about flaws in the 1980 contract. On 16 April 2008 the Supreme Court upheld the first-instance judgment. The Supreme Court’s judgment was served on the advocate representing the applicants on 7 August 2008. He sent it to the applicants on 15 October 2008. On 7 and 8 January 2009 Ms M. Kováčová lodged a complaint with the Constitutional Court. She complained under Article 1 of Protocol No. 1 that in proceedings under Law no. 64/1997 she had been deprived of her property without appropriate compensation. She referred to the above administrative decisions of 6 February 2003 and 12 March 2003 and to the judgments of the regional court and the Supreme Court of 16 May 2007 and 16 April 2008 respectively. She expressly stated that she challenged Law no. 64/1997 and maintained that there was no public interest in a transfer of her land to the gardeners under its provisions. On 4 February 2009 the Constitutional Court rejected the complaint on the ground that the applicant had not lodged it within the two-month time-limit laid down in the Constitutional Court Act 1993. In an opinion prepared at the applicants’ request and dated 12 February 2009 an expert in valuation of real estates concluded that the market value of the applicants’ land, as on 9 February 2009, was 32.59 euros (EUR) per square metre. The opinion stated that the land was situated within a municipality belonging to the town of Košice, which was the seat of regional authorities and institutions. It was within ten minutes’ drive of the town centre and the locality was a popular residential area for the town’s inhabitants. At the Government’s request the Forensic Engineering Institute in Žilina determined the market value of the property in an opinion of 5 April 2009. It concluded that in December 2003, when the land had been transferred to the gardeners, its general value had been EUR 9.14 per square metre. The relevant domestic law and practice, as well as the general background to consolidation of land used by garden communities, are set out in Urbárska obec Trenčianske Biskupice v. Slovakia, no. 74258/01, §§ 7-13 and 40-80, ECHR 2007... (extracts)). In addition, the following legal provisions and practice are relevant in the present case. Article 152 § 4 of the Constitution provides that constitutional laws, laws and other generally binding legal regulations are to be interpreted and applied in conformity with the Constitution. Pursuant to Article 154c § 1 of the Constitution, international treaties on human rights and fundamental freedoms which the Slovak Republic has ratified and were promulgated in the manner laid down by a law prior to the entry into force of Constitutional Act 90/2001 on 1 July 2001 form a part of its legal order and have precedence over laws where they provide for a broader array of constitutional rights and freedoms. In judgment I. ÚS 36/02 delivered on 30 April 2003 the Constitutional Court, with reference to Articles 152 § 4 and 154c § 1 of the Constitution, held that the Convention and the case-law of its bodies represent binding guidelines for national authorities on interpretation and implementation of legal provisions bearing on fundamental rights and freedoms. The Convention and the case-law of its organs thus set a framework which the national authorities could not overstep when dealing with a case. The same view was expressed in its judgment I. ÚS 239/04 of 26 October 2005. On 15 October 2003 the Constitutional Court delivered a judgment in proceedings III. ÚS 138/03. The case concerned alleged flaws in proceedings on implementation of a consolidation project under Law no. 64/1997. In particular, the plaintiff complained that by its decision to discontinue the proceedings concerning lawfulness of the administrative authorities’ decisions a court had breached his rights to judicial protection and to own property. The Constitutional Court granted the complaint considering that the court should have dealt with the merits of the case. It returned the case to the ordinary court for further proceedings. | 0 |
dev | 001-57783 | ENG | ITA | CHAMBER | 1,992 | CASE OF GIANCARLO LOMBARDO v. ITALY | 2 | Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient | C. Russo;John Freeland;N. Valticos;R. Pekkanen | 7. Mr Giancarlo Lombardo, a former judge, lived in Rome until his death. The facts established by the Commission pursuant to Article 31 para. 1 (art. 31-1) of the Convention are as follows (see paragraphs 23-35 of its report): "23. As the pensions of public servants and judges are not indexed in Italy, successive adjustments produced a situation in which the amount of pension paid by the State to retired judges having the same grade and with the same number of years of service but having retired at different dates varied considerably, in a way which the applicant considered to be unjustified. 24. Consequently, at the same time as a number of other retired judges, on 11 November 1980, the applicant appealed to the Italian Court of Audit against a decree of the Ministry of Justice rejecting his application for the amount of his pension to be increased; he argued that the provisions of the legislation on which the disparity of treatment was based were unconstitutional. 25. On 18 November 1980 the secretariat of the Court of Audit asked the Ministry of Justice to forward the applicant’s file, which was done on 5 December 1980. 26. On 31 December 1980 the file was sent to the principal public prosecutor attached to the Court of Audit, so that he could investigate the case and formulate his submissions. These submissions were added to the file on 19 January 1982. 27. On 7 June 1982 the principal public prosecutor, considering that the case raised questions of principle, asked for it to be examined by the combined divisions of the Court of Audit. 28. Subsequently, examination of the appeal was adjourned pending the outcome of an appeal to the combined divisions of the Court of Audit entered by the principal public prosecutor on 5 July 1982 against a decision of the division having jurisdiction over pensions, given in an analogous case. 29. These appeal proceedings proved to be lengthy. At the first hearing, arranged to take place on 6 October 1982, a first objection of unconstitutionality was raised. The combined divisions of the Court of Audit held that the objection was not manifestly ill-founded and, in decision (ordinanza) no. 73 of the same date, referred the matter to the Constitutional Court. 30. The Constitutional Court gave its decision in a judgment filed on 7 March 1984. 31. The case was again submitted to the combined divisions of the Court of Audit after a request to that effect had been made by the avvocato dello Stato (counsel representing the State) on 7 January 1985. A hearing was arranged for 5 June 1985. At that hearing a second objection of unconstitutionality was raised. The Court of Audit held that the second objection was not manifestly ill-founded and once again referred the matter to the Constitutional Court in decision no. 104 of the same date. 32. The file was sent to the Constitutional Court on 18 September 1985. The Constitutional Court arranged for the objection of unconstitutionality to be examined at a hearing on 21 April 1988. Its judgment was transmitted to the combined divisions of the Court of Audit on 23 June 1988. 33. The case was due to be heard by the combined divisions of the Court of Audit on 12 October 1988 but had to be adjourned by the court until 27 October 1988, following a strike by its staff. On that date the Court of Audit referred the case to the relevant division. Its decision was filed with the registry on 14 November 1988. 34. The relevant decision arranged for this case and the numerous others pending, including the applicant’s, to be heard on 22 February 1989. 35. In a judgment dated 13 March 1989, filed with the registry on 20 March, it partially upheld the applicant’s appeal and ordered the readjustment of his pension, re- evaluation of the sums due and payment of interest on those sums." 8. On 17 July 1989 the principal public prosecutor communicated that judgment to the Minister of Justice in order for him to arrange for its execution. | 1 |
dev | 001-94837 | ENG | RUS | CHAMBER | 2,009 | CASE OF BORDIKOV v. RUSSIA | 3 | Violation of Art. 3 (substantive aspect);No violation of Art. 3 (procedural aspect);No violation of Art. 5-3;No violation of Art. 6-1;Non-pecuniary damage - award | Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens | 8. The applicant was born in 1964 and is serving a prison sentence in the Kirov Region. 9. On 19 March 1995 the police uncovered a substantial quantity of marijuana in one of the offices of Rostov Nautical College. A witness testified that the drug had been left there by the applicant, who was arrested a day later and then released on 23 March 1995 on a written undertaking not to leave town. It appears that the applicant failed to appear for questioning on several occasions. The authorities failed to establish his whereabouts and on 5 July 1995 the criminal investigation was suspended. 10. The applicant was arrested on 29 April 1998. The police found cocaine on him. More drugs and some ammunition were discovered in his flat. On 30 April 1998 the prosecutor authorised his detention pending investigation, referring to the risk of his absconding. It was further extended on 22 June 1998 until 29 July 1998. 11. Upon completion of the investigation, the prosecutor forwarded the case file to the Kirovskiy District Court of Rostov-on-Don on 22 July 1998. The District Court found, however, that the case should be remitted to the prosecutor's office for additional investigation. The relevant decision was issued on 15 October 1998. The court also ruled that the applicant should remain in custody. 12. Once the additional investigation was completed and the case file was forwarded to the District Court, the latter scheduled the hearing of the case for 22 January 1999. The first two hearings were adjourned on 22 January and 19 February 1999 on account of the judge's involvement in other proceedings. Subsequently, the District Court found certain procedural irregularities in the bill of indictment and remitted the case to the prosecutor's office on 9 March 1999 for their rectification. The applicant's detention pending investigation was further authorised by the prosecutor on 25 June 1999 until 24 July 1999. 13. On 24 July 1999 the maximum permissible period of the applicant's detention pending investigation expired. Two days later the applicant was released on an undertaking not to leave town. 14. The trial was opened on 10 August 1999. The District Court scheduled the hearing of the case for 15 September 1999; it was subsequently adjourned owing to the applicant's lawyer's failure to appear. The hearing was further adjourned on 19 October and 16 November 1999 owing to the applicant's illness. It was resumed on 14 December 1999. Referring to the gravity of the charges, the court ordered the applicant's detention pending trial. 15. On 24 January 2000 the District Court found the applicant guilty of unlawful possession of ammunition and drugs and gave him a suspended sentence of three years' imprisonment, conditional on two years' probation. The applicant was released on a written undertaking not to leave town. Both the prosecutor and the applicant appealed. 16. The Rostov Regional Court adjourned the appeal hearing owing to the applicant's lawyer's failure to appear on 23 February and 7 and 15 March 2000. The matter was considered on 29 March 2000. The Regional Court held that the trial court's findings were inconclusive, quashed the conviction and remitted the case to the lower court for fresh consideration. 17. On 8 June 2000 the District Court ordered that the proceedings should be stayed because of the applicant's illness. They were resumed on 17 May 2001, when the court scheduled the first hearing for 25 May 2001. The court also directed that the applicant should be detained pending trial. No time-limit was fixed. In particular, the court ruled as follows: “... the court considers it necessary to revoke [the applicant's] undertaking not to leave town and to order his detention pending trial since he is charged with several serious and grave offences involving illegal drug dealing which present a heightened danger to public order and impinge on such an important value protected by the criminal law as public health. When deciding on [the applicant's] detention, the court notes that, according to the medical documentation, there are no circumstances rendering him unfit for detention. Furthermore, the remand prison and special hospital no. 19 are equipped with adequate facilities to provide professional medical assistance to the detainees, if necessary.” 18. The police failed to execute the court's order as the applicant's whereabouts were unknown. On 5 June 2001 the applicant's name was put on the wanted persons' list. He was arrested by the police and remanded in custody on 13 September 2001. 19. The hearing of the case was adjourned owing to the defence counsel's failure to appear on 3 October, 5, 21 and 27 November, 11 and 26 December 2001 and 8 and 29 January 2002. On 29 January 2002 the hearing was adjourned because the judge was involved in other proceedings. 20. On 19 March 2002 the District Court dismissed an application by the applicant for release, in which he had alleged that his health had deteriorated, that he had a permanent residence and that he had not failed to observe his undertaking not to leave town. The court noted as follows: “The court does not consider it practical to release [the applicant] pending trial. This measure is not only used to anticipate his custodial sentence as he is charged with serious and grave offences which impinge on such an important value as public health and present a heightened danger to public order. The court considers that, if released, [the applicant] might interfere with the administration of justice or abscond.” 21. Between 26 February 2002 and 8 May 2003 the District Court adjourned nine hearings in the case on account of the applicant's or his counsel's illness or the latter's failure to appear. Twice the court adjourned the hearing because of the absence of witnesses. On two occasions the court granted a request by the applicant for additional time to study the case file. 22. The applicant's detention was extended on 1 July 2002 until 1 October 2002. The court stated the following: “The court does not consider it practical to release [the applicant] pending trial. This measure is not only used to anticipate his custodial sentence. Given that [the applicant] is charged with grave and serious offences that present a heightened danger to public order, [his] detention may be also justified by this fact alone... Furthermore, if released, [the applicant] might abscond, as he has done in the past... or interfere with the administration of justice.” 23. The applicant appealed, referring to his health problems. He further claimed that the District Court's conclusions that he might abscond or interfere with the administration of justice lacked any substantiation. On 13 August 2002 the Regional Court upheld the decision of 1 July 2002 on appeal. 24. On 25 September 2002 the District Court extended the applicant's detention until 1 January 2001. The court reasoned as follows: “The court does not consider it practical not to extend the [applicant's] detention and release him. His detention is not only used to anticipate his custodial sentence. Given that [the applicant] is charged with grave and serious offences that present a heightened danger to public order..., the court... considers it necessary to extend his detention... Furthermore, if released, [the applicant] might abscond or fail to appear in court, as he has done in the past. That is the reason why his detention was ordered [in the first place] and his name was put on the wanted persons' list. The length of the custodial sentence to which the applicant may be subjected if found guilty also indicates, although indirectly, that such a development is very likely. Besides, if released, [the applicant] might interfere with the administration of justice, given that his line of defence is contrary to the testimonies of most witnesses. The lawyers' argument that [the applicant's] medical condition is serious cannot be taken into consideration. No objective data or medical documents have been produced to the court to show that [the applicant's] detention is incompatible with his condition. The court received only a medical report stating that [the applicant] is currently unable to participate in the hearing. Besides, according to the report, [the applicant is being provided] with the necessary medical assistance.” 25. On 12 November 2002 the Regional Court upheld the order of 25 September 2002 on appeal. 26. On 25 December 2002 and 25 March 2003 the District Court extended the applicant's detention until 1 April and 1 July 2003 respectively. Each time the court referred, as before, to the gravity of the charges against the applicant. It also noted that, if released, the applicant might abscond, as he had done in the past. The court further reasoned that it was impossible to place the applicant under house arrest or to use any other alternative “preventive measure” to ensure his attendance during the trial because, if released, he might put pressure on the witnesses who were to testify against him. On 25 February and 27 March 2003 the Regional Court upheld the relevant court orders on appeal. 27. On 27 June and 1 July 2003 the District Court considered the merits of the case and convicted the applicant of drug dealing and unlawful possession of drugs and ammunition, sentencing him to three years and one month's imprisonment. It appears that the applicant did not appeal. 28. The applicant was released on or about 23 July 2003 since the time he had served in detention was taken to be credited towards the sentence. 29. From 14 September 2001 to 2 July 2003 the applicant was detained in remand prison no. IZ-61/1 in Rostov-on-Don (СИЗО ИЗ-61/1 г. Ростова-на-Дону), in cells no. 33, 168 and 6. Twice he was transferred to a prison hospital (УЧ-398/19 МОТБ), where he stayed from 8 August to 14 November 2002 and from 6 to 20 February 2003. The applicant and the Government submitted differing descriptions of the remand prison. 30. According to the applicant, the cells in the remand prison were overcrowded. The number of bunk beds in the cells was insufficient and the inmates had to take turns to sleep. The mattresses were dirty and damp. The bedding was rarely washed. The toilet was installed on a 0.5-metre elevation platform and was not separated from the living area or the dining table. The food was of poor quality. The hot water supply was shut down on many occasions. The light was never switched off. There was little access to fresh air or daylight because of thick metal bars on the windows. In addition, there were no window panes and it was cold in the winter and stiflingly hot and humid in the summer. The cells were infested with cockroaches, bugs, bed lice and mites. The cells were never sanitised, no disinfectant was distributed and the use of powder detergent, immersion heaters and fridges was not allowed. The plaster on the walls contained poisonous and toxic substances. 31. Relying on certificates issued by the administration of the remand prison on 14 and 15 November 2005, the Government submitted that the conditions of the applicant's detention were satisfactory. There were a sufficient number of beds in each cell and the applicant had always had an individual sleeping place. The cells were equipped with a toilet and a sink. There was a separation wall between the toilet and the living area of the cell. The windows were not covered with metal shutters. The central heating ensured an adequate temperature in the cells. The cells were cleaned and disinfected on a regular basis. The bed sheets were washed and disinfected too. The cells were equipped with radio, lighting and a ventilation system. There was a dining table and a bench in each cell. The food was of adequate quality and diverse. The meals were served three times a day and comprised approximately twenty different ingredients. 32. Relying on a certificate issued on 24 May 2006 by the remand prison, the Government submitted that the plaster on the cell walls contained no poisonous or toxic substances. The paint used complied with State safety standards. 33. As regards the actual documents concerning the conditions of the applicant's detention from 2001 to 2003, the Government indicated that all the records had been destroyed after the statutory period for their storage had expired. In this connection they submitted a copy of the relevant certificate issued by the administration of the remand prison on 15 May 2007. 34. From September 2001 to March 2002 the applicant stayed in cell no. 33. According to the applicant, the cell measured 7 sq. m and housed from four to six inmates. 35. In their memorandum of 27 February 2006, the Government claimed that the cell measured 10 sq. m and was equipped with four beds. Three inmates, on average, were detained there. In their further observations the Government relied on the certificate signed by officer K., acting head of the remand prison, on 26 November 2007. According to the certificate, the cell measured 15.5 sq. m and housed four persons at the relevant time. 36. From March to July 2002 and then after February 2003 the applicant stayed in cell no. 168. According to the applicant, the cell measured 30 sq. m and housed from fifteen to twenty inmates. 37. Originally the Government did not dispute the measurements of the cell. According to them, the cell was equipped with ten beds and housed, on average, eight inmates. The Government later submitted a certificate signed by officer K. on 26 November 2007 to the effect that the cell measured 50.4 sq. m and housed fourteen inmates. 38. On 31 July 2002 the applicant was transferred into cell no. 6, located in the basement. According to the applicant, it measured 12 sq. m and housed twelve inmates. On 6 August 2002 the entire basement, including cell no. 6, was flooded from the sewage system. On the following day the inmates were returned to cell no. 168. 39. The Government denied that the flooding incident had taken place. In their memorandum of 27 February 2006 they did not accept the number of inmates or the cell measurements quoted by the applicant. According to them, the cell measured 15 sq. m and housed, on average, four inmates. Each of them had an individual bed. According to the certificate signed by officer K. on 26 November 2007, the cell measured 38.4 sq. m. It was equipped with twelve beds and housed twelve inmates. 40. According to the applicant, in 2002 he was repeatedly placed in the “assembly” cell. It measured one sq. m and had no windows, no ventilation system, no drinking water and no place for rest. The floor was dusted with bleaching powder. The walls were coated with “shuba”, a sort of abrasive concrete lining. No access to a toilet was allowed. 41. On an unspecified date the applicant spent two hours in that cell; on 24 December 2002 he was held there for three hours, and he was subsequently locked in the cell for fifteen hours from 5 p.m. on 5 March to 8 a.m. on 6 March 2003. 42. The Government admitted that the applicant had been detained in the “assembly” cell on 5 March 2003 only. They acknowledged that the applicant's detention there contravened the applicable rules and regulations. 43. According to the applicant's medical file, at least once a week he was examined by doctors of the remand centre, who administered injections and provided medication to treat his hypertension. In particular, the medical file contains the following information. 44. On 16 July 2002 the applicant received injections in connection with a hypertonic crisis. Following the treatment, his blood pressure lowered from 220/140 to 190/120. 45. From 8 August to 14 November 2002 and from 6 February to 14 February 2003 the applicant received treatment in hospital. He was released once his condition was recognised as satisfactory. 46. On 15 November 2002 the applicant complained of hypertension. He was examined by a doctor, who administered an injection and prescribed medication. 47. On 3, 7, 8 and 10 March 2003 the doctor examined the applicant and treated his hypertension. | 1 |
dev | 001-110942 | ENG | LVA | CHAMBER | 2,012 | CASE OF EPNERS-GEFNERS v. LATVIA | 3 | No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life) | Alvina Gyulumyan;Corneliu Bîrsan;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria | 6. The applicant was born in 1964 and lives in Liepāja. 7. On 1 October 1999 the applicant was arrested on suspicion of aggravated robbery. 8. On 11 April 2002 the Kurzeme Regional Court (Kurzemes apgabaltiesa) convicted the applicant of aggravated robbery and sentenced him to six years and one month’s imprisonment. 9. On 5 June 2002, on the applicant’s appeal, the Criminal Chamber of the Supreme Court (Augstākās tiesas Krimināllietu lietu palāta) upheld in substance the judgment of the first-instance court. 10. On 20 September 2002 the Senate of the Supreme Court (Augstākās tiesas Senāts) dismissed the applicant’s appeal on points of law in a preparatory meeting (rīcības sēde). 11. On 23 August 2004 the Jelgava Court (Jelgavas tiesa) decided to apply a pre-release scheme to the applicant and ordered his release before the end of his sentence. 12. On 18 May 2000 the applicant’s wife gave birth to their son. 13. On 16 November 2000 and 20 November 2001 the applicant received two short-term visits from his wife. He also received four short-term visits from his aunt during his pre-trial detention. 14. The applicant was able to receive long-term visits while serving his sentence, starting from 5 October 2002. Until his release on 23 August 2004 the applicant received six long-term visits from his wife; each of these visits lasted for about sixteen hours. 15. According to the Government, the applicant first complained about his dental care on 29 June 2000. A prison doctor prescribed pain relieving medication (Ibuprofen) and advised him to consult a dentist. 16. On 16 August 2000 the applicant complained of toothache to the prison doctor, who prescribed other pain relieving medication (Analgin) and advised him to consult a dentist. 17. On 18 August 2000 the applicant saw a dentist, who discovered that he had dental caries in one tooth. During his examination, the dentist noted that the applicant had two missing teeth and the remains of twenty-one damaged teeth. All in all, he had eight just healthy teeth. The applicant refused the recommended treatment. 18. On 10 August 2001 the applicant again complained of toothache to the prison doctor, who prescribed pain relieving medication (Analgin). 19. On 19 September 2001 the applicant was examined by a psychiatrist, who considered that the applicant’s complaints of headaches were related to his dental cavity problems. The doctor advised him to consult a dentist. 20. On 25 October 2001 the applicant saw the dentist, who diagnosed him as suffering from periodontal disease (loose teeth). Subsequently, four teeth were extracted. 21. On 26 November 2001 the applicant lodged a complaint with the General Inspectorate (Ģenerālinspektora birojs), which at the material time was the institution in charge of organising the execution of criminal sentences and the probation system and was supervised by the Ministry of Justice. His complaint was that he had not been receiving appropriate dental care and that he needed dental prosthetics. The applicant’s complaint was transferred to the Prisons Administration (Ieslodzījuma vietu pārvalde) for examination. 22. On 11 December 2001 the Prisons Administration informed the applicant that, following his requests, a dentist had made several extractions. This service had been free of charge. It had been established that the applicant had eight teeth left. It was presumed that he had not taken appropriate care of his teeth prior to his detention. The applicant was informed that dental prosthetics could be provided only at his own expense and that the Ministry of Finance did not allocate any funds to the Prisons Administration or prisons for this purpose. 23. On 27 December 2001 the applicant submitted a complaint to the Chancery of the President of Latvia (Latvijas Valsts prezidenta kanceleja) about his dental care. The applicant’s complaint was transferred to the Ministry of Justice and from there to the General Inspectorate for examination, which transferred the complaint to the Prisons Administration. 24. On 12 February 2002 the Prisons Administration informed the applicant that he had already received an answer on 11 December 2001 as regards his complaint of 26 November 2001. It reiterated that dental prosthetics could not be provided free of charge in prisons. 25. Until 14 May 2001 the detention of persons in remand prisons was governed by an instruction, which had been approved by the Minister of the Interior on 30 April 1994. 26. Rule 26 of that instruction provided that detainees placed in remand prisons were allowed to receive short-term visits upon approval from the authority conducting the criminal proceedings (that is, either from the investigating authorities or the court, depending on the stage reached in the proceedings). 27. Rule 32 of that instruction stipulated that detainees placed in remand prisons could receive one short-term visit (up to one hour) per month from family members and other persons only with written permission from the person or body dealing with the particular criminal case. 28. In 2001 the Ministry of Justice took over the supervision of penitentiary institutions from the Ministry of the Interior. 29. On 9 May 2001 the Minister of Justice issued an order enacting a transitional instruction on the detention of persons in remand prisons. The instruction entered into force on 14 May 2001. 30. Rule 25 of the transitional instruction provided that detainees could receive one short-term visit per month with written permission from the authority dealing with the particular criminal case. 31. The transitional instruction of the Minister of Justice remained applicable until 1 May 2003, when Cabinet Regulation no. 211 (2003) took effect. Subsequently, Cabinet Regulation no. 288 (2006) replaced it as of 20 April 2006. Finally, the Law on Custody Procedure (Apcietinājumā turēšanas kārtības likums) took effect on 18 July 2006. 32. On 19 December 2001 the Constitutional Court (Satversmes tiesa) delivered its judgment in case no. 2001-05-03 on the compliance of the internal regulations on remand prisons (issued under the authority of the transitional instruction of the Minister of Justice) with the Constitution (Satversme). The Constitutional Court found, among other things, that the transitional instruction as well as the internal regulations on remand prisons had not been made public and that they were internal normative acts (iekšējie normatīvie akti). As a result, it concluded that some of the rules contained in the internal regulations on remand prisons were unconstitutional, but not those concerning short-term visits. 33. On 23 April 2009 the Constitutional Court delivered its judgment in case no. 2008-42-01 on whether the restriction of the duration of short-term visits to one hour for detainees, which emanated from the Law on Custody Procedure (in effect since 18 July 2006), was in compliance with the Constitution. 34. Having examined the Court’s case-law, the practice of several member States of the Council of Europe, and the European Prison Rules, the Constitutional Court found, on the one hand, that there was no obligation for States to ensure long-term visits for detainees and that the restriction to receive such visits was compatible with the Constitution, namely, with the right to private and family life contained therein. On the other hand, the Constitutional Court held that the blanket one-hour restriction on monthly short-term visits was not proportionate and thus not compatible with the Constitution. The restriction was abrogated as of 1 December 2009 and, since 11 August 2011, the relevant provision reads: “detainees have the right to receive visits lasting at least one hour from their relatives or other persons at least once a month”. 35. Cabinet Regulation no. 358 (1999), in force at the material time and effective until 28 March 2007, provided as follows: “2. Convicted persons shall receive the minimum standard of health care free of charge up to the amount established by the Cabinet of Ministers. In addition, the Prisons Administration, within its budgetary means, shall provide the convicted persons with: 2.1. primary, secondary and tertiary (in part) medical care; 2.2. emergency dental care; 2.3. examination of health conditions; 2.4. preventive and anti-epidemic measures; 2.5. medication and injections prescribed by a doctor of the institution; 2.6. medical accessories. 3. Detained persons shall receive medical care in accordance with Article 2 of these regulations, excluding planned in-patient treatment.... Detained persons shall be sent to receive in-patient treatment only in acute circumstances.” | 0 |
dev | 001-106425 | ENG | RUS | CHAMBER | 2,011 | CASE OF BEKSULTANOVA v. RUSSIA | 3 | Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 5;Violation of Art. 13+2;Non-pecuniary damage - award | Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen | 5. The applicant was born in 1959 and resides in the village of AchkhoyMartan in the Chechen Republic. She is the mother of Mr Timur Beksultanov, born in 1980. 6. In the applicant’s submission her family members, including Timur Beksultanov, were victims of continuing persecution on the part of the domestic authorities. In July 2003 Timur Beksultanov even had to quit his job as a coach in the Achkhoy-Martan local sports centre. Furthermore, on several occasions (the applicant did not furnish the exact dates) servicemen of the federal forces allegedly burst into the applicant’s house, searched it and intimidated the applicant and members of her family. 7. On 7 July 2003 the prosecutor’s office of the Achkhoy-Martan District (“the district prosecutor’s office”) opened a criminal case against Timur Beksultanov under Articles 205 § 2 (terrorism), 208 § 2 (participation in an illegal armed group), 222 § 2 (aggravated possession of weapons) and 317 (assault on a law-enforcement officer) of the Criminal Code (“CC”). The case file was assigned the number 44050. It appears that Timur Beksultanov was put on a list of wanted persons in connection with those proceedings. 8. According to the applicant, Timur Beksultanov denied the charges against him and intended to appear at the district prosecutor’s office. 9. On 2 October 2004 Mr I.M., an officer of the police special-purpose squad (“OMON”), came to the applicant’s house and asked Timur Beksultanov to follow him to an unidentified destination “to explain that [Timur Beksultanov] was not implicated in any terrorist activities”. The two men got into I.M.’s vehicle, a VAZ-2107, and drove off. The applicant memorised only a sequence of three figures from the car number plate, namely “940”. 10. The following account of the events is based on the information allegedly obtained by the applicant from two persons, one of them being identified by her as “a shepherd” and another as “a villager of AchkhoyMartan”. The applicant did not indicate the names of those witnesses or furnish copies of their statements. In her submission, the witnesses did not wish to give their names because they feared reprisals. 11. According to the applicant, one of the witnesses told her that at about 11 a.m. on 2 October 2004 he had seen a convoy of several armoured personnel carriers (“APCs”) and UAZ vehicles stationed at a crossroads between three villages, where one of the roads led to Shaami-Yurt. There had been numerous servicemen near the vehicles. A VAZ-2107 vehicle had approached the convoy. Timur Beksultanov and I.M. had got out of the vehicle and the servicemen had requested their identity papers. Having checked them, the servicemen had twisted Timur Beksultanov’s arms and had started beating him up. When he had fallen on the ground, the witness had heard several shots and had seen that Timur Beksultanov was wounded in his thigh. Immediately thereafter an officer had approached Timur Beksultanov and had shot him in the shoulder. After that the servicemen had put Timur Beksultanov in an APC and had driven off to an unknown destination. The servicemen had not done anything to I.M., who had got back inside his vehicle and had driven away. According to the applicant, the witness had not been able to hear everything which had occurred at the crossroads but had clearly seen what had been going on there. 12. On 2 October 2004, several hours after her son’s abduction, the vehicle in which he had been placed by his abductors, was stationed at the Achkhoy-Martan Department of the Interior (“the ROVD”). 13. The applicant learnt about the apprehension of Timur Beksultanov from the relatives of I.M. on 3 October 2004. 14. According to written statements by Zh.E., M.G., Z.M. and R.B., dated 20 December 2004 and furnished by the applicant, those persons submitted that on 2 October 2004 they had seen Timur Beksultanov get inside a vehicle together with a man who introduced himself as I.M., an OMON officer. I.M. had picked up Timur Beksultanov at the applicant’s house to accompany him to the law-enforcement authorities because the former wished to surrender in connection with the criminal charges against him. Zh.E., M.G., Z.M. and R.B. stated that on the following days they had learnt that I.M. had taken the applicant’s son into an ambush to deliver him to the authorities. 15. The applicant has had no news of Timur Beksultanov since 2 October 2004. 16. The Government submitted that the domestic proceedings had obtained no evidence that Timur Beksultanov had been abducted by State agents. 17. On 8 October 2004 the applicant complained in writing about the abduction of Timur Beksultanov to various State bodies, including the President of the Commission for Prisoners and Missing Persons with the President of the Russian Federation, the military prosecutor’s office of the North Caucasus Military Circuit, the military prosecutor’s office of the United Group Alignment (UGA), the Prosecutor of the Chechen Republic and the district prosecutor’s office. In those complaints she submitted that, at about noon on 2 October 2004, armed men who had been wearing camouflage uniforms and had arrived in several APCs, military UAZ vehicles and a private vehicle, had stopped I.M.’s vehicle with plate no. “940” and had taken away Timur Beksultanov. The abduction had occurred at the crossroads between three villages, where one of the roads led to Shaami-Yurt. In her complaints the applicant also claimed that, according to I.M., as of 6 October 2004 her son was still alive and was held in Khankala. 18. On 25 October 2004 the prosecutor’s office of the Chechen Republic (“the republican prosecutor’s office) forwarded the applicant’s complaint about the abduction of Timur Beksultanov for examination to the district prosecutor’s office. 19. On 5 November 2004 the Office of the Ombudsman of the Russian Federation forwarded the applicant’s complaint about “the abduction of T. Beksultanov by officers of the special-purpose Department of the Sunzhenskiy Department of the Interior” to the Prosecutor General’s Office. 20. On 9 November 2004 the applicant re-submitted her complaint of 8 October 2004 to the same State authorities. 21. On 1 December 2004 the republican prosecutor’s office replied to the applicant that her complaint about the abduction of Timur Beksultanov had been appended to case file no. 44050 opened against him in July 2003. She was also notified that Timur Beksultanov had been put on a federal list of wanted persons and that measures aimed at establishing his whereabouts were under way. 22. On 3 December 2004 the military prosecutor’s office of the North Caucasus Circuit forwarded the applicant’s complaint about the abduction of her son to the UGA military prosecutor’s office and advised the applicant that she was to address all her queries to that body. 23. On 21 December 2004 the Ministry of the Interior of the Chechen Republic notified the applicant that they had forwarded her complaint about the abduction of her son to the district prosecutor’s office. 24. On 10 February 2005 the prosecutor’s office of military unit 20102 informed the applicant that they were verifying the information contained in her complaint about the abduction of her son and that they would notify her about their decision in due course. 25. On 12 February 2005 the Chechen Department of the Federal Security Service (“the Chechen Department of the FSB”) informed the applicant that they had forwarded her complaint about the abduction of Timur Beksultanov to the district prosecutor’s office for examination. 26. On 16 February 2005 the Chechen Department of the FSB replied to the applicant’s repeated complaint that on 2 October 2004 they had not carried out any special operations in the Achkhoy-Martanovskiy District. The letter also stated that the department officials had not arrested Timur Beksultanov. 27. By a letter of 4 March 2005 the prosecutor’s office of military unit no. 20102 notified the applicant that their inquiry had not established the implication of servicemen of the federal forces in the abduction of Timur Beksultanov. The letter also pointed out that the applicant’s complaint about the apprehension of Timur Beksultanov had been appended to case file no. 44050 opened against him on 7 July 2003 and in connection with which he had been put on the list of wanted persons. On 19 February 2005 the preliminary investigation in case no. 44050 had been adjourned owing to the fact that the whereabouts of Timur Beksultanov remained unknown. The district prosecutor’s office was taking investigative steps to establish his whereabouts with a view to prosecuting him for the crimes of which he was suspected. 28. On 17 May 2005 the applicant’s representatives wrote to the prosecutor of the Achkhoy-Martan District, enquiring, among other things, whether the district prosecutor’s office had launched an investigation into the abduction of Timur Beksultanov and what steps it had taken to establish his whereabouts. They also requested that the applicant be provided access to the relevant documents. 29. On 29 December 2005 the applicant’s representatives complained to the republican prosecutor’s office that they had not received a reply to their letter of 17 May 2005. It appears that their repeated query was also left without reply. 30. On 23 January 2007 the applicant’s representatives wrote to the prosecutor of the Achkhoy-Martan District and the republican prosecutor’s office, reiterating the questions raised in their letters dated 17 May and 29 December 2005. 31. On 7 February 2007 the republican prosecutor’s office replied to the applicant’s representatives that Timur Beksultanov had been put on the federal list of wanted persons in connection with criminal case no. 44050. The investigators of that criminal case had verified the applicant’s version that her son had been abducted by unidentified persons on 2 October 2004. However, apart from the applicant’s own statement, no objective evidence had been obtained to the effect that her son had, indeed, been abducted. At the same time, the investigators had sufficient reasons to believe that the applicant was deliberately complaining about the abduction of Timur Beksultanov in order to shield him from the criminal responsibility for the crimes he had committed. 32. On 25 May 2009 the applicant wrote to the head of the investigating department of the investigating committee with the Prosecutor’s Office in the Chechen Republic. She reiterated the circumstances of her son’s disappearance and requested to be informed whether the authorities had opened an investigation into his disappearance and what steps they had taken to elucidate it. 33. On 24 September 2009 the Chief Military Prosecutor’s Office replied to the applicant that they had forwarded her complaint about the abduction of her son to the military prosecutor’s office of the United Group Alignment (“the UGS prosecutor’s office”). 34. By a letter of 6 October 2009 the district prosecutor’s office informed the applicant’s husband that they had received the complaint about the abduction of his son. The letter stated that Timur Beksultanov was being searched for on suspicion of having committed a number of serious crimes, in connection with which criminal proceedings had been instituted against him. The authorities were carrying out unspecified measures to examine the submissions concerning Timur Beksultanov’s allegedly unlawful arrest. 35. The Government submitted that the domestic authorities had not opened a separate investigation into the disappearance of Timur Beksultanov because he had been placed on a wanted list in connection with the criminal proceedings in case no. 44050 instituted against him. All the applicant’s submissions concerning his alleged abduction had been examined within the framework of the criminal proceedings in case no. 44050. The Government refused to provide the Court with a full copy of criminal case file no. 44050, without providing an explanation. The information provided by the Government and contained in the documents submitted by them may be summarised as follows. 36. On 6 July 2003 the district prosecutor’s office instituted criminal proceedings against a number of persons, including Timur Beksultanov, on suspicion of participation in illegal armed groups, assault on officers of lawenforcement authorities and possession of arms (Articles 317, 208 § 2 and 222 § 2 of the CC). The decision stated, in particular, that on 5 July 2003 officers of the Achkhoy-Martan police department had carried out an operation aimed at arresting members of illegal armed groups. In the course of the operation they had stopped a vehicle with Timur Beksultanov, R.K. and U.S. inside. R.K. had opened fire on the police officers, had wounded one of them and had been killed in the ensuing skirmish. The police officers had arrested U.S., whilst Timur Beksultanov had managed to escape. The case file was assigned the number 44050. 37. On 8 July 2003 a further criminal case was opened against Timur Beksultanov and R.K. under Article 317 of the CC on suspicion of an armed assault on a police officer, who had been severely wounded. The case file was given the number 44052. 38. On 21 July 2003 investigators of the district prosecutor’s office searched the applicant’s home in connection with the proceedings in case no. 44050. The related decision stated that there was information that Timur Beksultanov was hiding from investigators at his mother’s home at 23 Budennogo Street in Achkhoy-Martan. According to the search record of the same date, 400 grams of trotyl were discovered at the applicant’s home. 39. Between 21 July and 20 August 2003 a number of local police departments and other law-enforcement authorities were instructed to search for Timur Beksultanov in connection with the criminal proceedings against him. It transpires that in the same time span a number of expert examinations concerning the weapons seized from the crime scenes and the trotyl found at Timur Beksultanov’s home were conducted. Further expert examinations with a view to establishing the severity of the injuries inflicted on the victims were carried out; the victims and some witnesses to the assaults were interviewed in the same period of time. 40. On 6 October 2003 criminal cases nos. 44050 and 44052 were joined; the new case file was assigned the number 44050. 41. On 29 November 2003 Timur Beksultanov’s name was put on a wanted list as a person suspected of a number of crimes; the lawenforcement authorities of the Achkhoy-Martan district were instructed to search for him. 42. Between 29 November and 3 December 2003 the investigators interviewed a number of witnesses about the circumstances of the crimes imputed to the applicant’s son. 43. On 5 December 2003 the criminal case against U.S. was severed from the proceedings in case no. 44050. 44. On 6 December 2003 the investigation in case no. 44050 was suspended. 45. It appears that between December 2003 and September 2004 the investigators instructed a number of law-enforcement authorities to search for Timur Beksultanov but their requests yielded no results. 46. On 10 September 2004 the district prosecutor’s office received yet another criminal case file no. 38567 opened against Timur Beksultanov on 19 April 2004 on suspicion of unlawfully selling a pistol to a third person. On 10 September 2004 case file no. 38567 was joined to case file no. 44050; the new case file was assigned the number 44050. 47. On 15 September 2004 the investigation in case no. 44050 was suspended owing to its failure to locate Timur Beksultanov. 48. On 19 January 2005 the investigation in case no. 44050 was resumed. The decision stated, in particular, that on 17 October 2004 the district prosecutor’s office had received the applicant’s complaint that on 2 October 2004 persons in camouflage uniforms had arrested Timur Beksultanov at the “Kavkaz” highway near the Shaami-Yurt woodland and had taken him to an unknown destination. It further stated that the applicant’s submissions were to be examined and that operational and search measures aimed at locating Timur Beksultanov were to be activated. 49. On 26 January 2005 the district prosecutor’s office instructed its counterparts and departments of the interior in the Chechen Republic and other regions of Russia to inform it whether they had arrested the applicant’s son, held him in detention or otherwise had any information on his whereabouts. They were also requested to ensure that the search for Timur Beksultanov be activated. It appears to follow from the replies of the relevant authorities, dated between February and May 2005, that those measures yielded no results and that no relevant information was obtained following the investigators’ request. 50. On an unspecified date in January 2005 the investigators interviewed the applicant. Her interview record, in so far as relevant, reads as follows: “... [Timur Beksultanov] had worked as a coach at the local school before 2003. In 2003 I learnt that he had a pistol. He explained to me that he needed it for self-defence ... Some time later our close relative M.B. attempted to kill his sister A.B., who was allegedly leading an immoral life ... Subsequently we heard rumours that my son had given the pistol to M.B. Several days later police officers stopped a car with my son and two other persons inside to arrest them. My son managed to escape but they had seized his passport and pistol. One of the persons in the car had opened fire on the policemen and was shot dead. After that the authorities had started persecuting our family. On several occasions persons in camouflage uniforms and masks burst into our house, looking for [Timur Beksultanov], whose name had by that time been placed on a wanted list. On several occasions I tried to persuade him to surrender but he was afraid of getting a long prison term or disappearing ... Until autumn 2004 [Timur Beksultanov] had succeeded in hiding from authorities. However, at some point I talked him into surrendering and he promised to do so by 7 October 2004. At about 11 a.m. on 2 October 2004 [Timur Beksultanov] left home together with I.M., an OMON officer. They went to Grozny in I.M.’s silvery VAZ-2109 vehicle with licence plate containing figures “904” [sic]. [Timur Beksultanov] promised me that he would return ... that evening, but he did not return. On 3 October 2004 an unknown man came to my house and told me that Timur had been arrested. He explained that on 2 October 2004 he had taken his cattle to a river not far from Shaami-Yurt, close to the road between Katyr-Yurt and Shaami-Yurt. There he had seen a number of military vehicles, including several APCs, military UAZ vehicles and a UAZ-469 vehicle. One of the APCs had the licence plate number “E-422”. The vehicles had been stationed at a crossroads. The man had then seen a silvery VAZ-2109 vehicle move in the direction of Shaami-Yurt. When the VAZ2109 had approached the military vehicles, they encircled it and shots had been fired. One of the men from the VAZ-2109 vehicle, who had been beaten up, had been placed in a UAZ vehicle and the other had been taken by his hands and feet and thrown in an APC, following which the military vehicles had driven off in the direction of Achkhoy-Martan through the village of Katyr-Yurt. The man had heard that the call sign of the servicemen had been “Falcon”. During the events described by him, the man had hidden in the bushes by the road. ... He refused to give his name or to testify before any law-enforcement authorities. According to the man, one of the APCs had white colouring, from beneath which green colour could be seen. When the servicemen had taken off, they had left the VAZ-2109 vehicle behind. Following that we contacted the authorities and started searching for our son on our own on the outskirts of the village of Shaami-Yurt; ... the villagers told us that they had seen military vehicles and had heard the shooting but when we asked them to give their names, they refused and stated that they would not testify before any lawenforcement authorities. On the second day of our search I learnt that the vehicle in which my son had gone to Grozny together with I.M. had been brought to the local ROVD by police officer D. on the order of the head of the [Achkhoy-Martan] ROVD. Some time later I learnt that that vehicle had been transferred to the Sunzhenskiy ROVD. I also learnt that after a while I.M. was released and that he started working [in the police] again. I also learnt that during his arrest my son had been wounded in the right side of the chest and in the right thigh. I don’t know if he is alive or not. There were many rumours about my son’s placement in various power structures of the FSB in Khankala; I mentioned all that information in my complaints to the authorities.” 51. On 1 February 2005 the investigator in charge of case no. 44050 instructed the Achkhoy-Martan police to examine the applicant’s submissions concerning the abduction of her son by, in particular, identifying and interviewing any witnesses to his apprehension (particular attention was to be paid to persons residing in the vicinity of the crossroads between Shaami-Yurt and the “Kavkaz” motorway). 52. It appears that following the investigator’s instructions the police interviewed five residents of Shaami-Yurt; they all stated that they did not know anything about the abduction of the applicant’s son. 53. On 27 June and 9 July 2005 a number of law-enforcement authorities forwarded to the district prosecutor’s office the applicant’s further complaints about the abduction of her son by camouflaged armed men and instructed the latter body to examine her submissions and to inform her of any decisions taken by 20 July 2005. 54. On an unspecified date in 2005 the head of the criminal police of the ROVD Mr V.K. issued a certificate (справка), which, in so far as relevant, reads as follows: “The ROVD has operational information [оперативная информация] to the effect that on 3 October 2004 unidentified officers of security forces stopped on the ‘RostovBaku’ motorway a civilian vehicle in which, according to the available sources, Timur Beksultanov, born in 1980, residing at 25 Budennogo Street, Achkhoy-Martan, was found. The ROVD received no complaints from the relatives of [Timur Beksultanov] about his arrest or abduction. The Achkhoy-Martan ROVD has no information on ‘Akhmed’, who had been arrested together with [Timur Beksultanov]. There is information that military armoured vehicles were used during [Timur Beksultanov’s] arrest. There is no information on Beksultanov’s ensuing whereabouts or the persons who had arrested him.” 55. On 19 February 2005 the district prosecutor’s office suspended the investigation in case no. 44050, owing to its failure to find Timur Beksultanov. By the same decision the district prosecutor’s office instructed the ROVD to continue carrying out operational and search measures aimed at locating Timur Beksultanov. 56. The investigation in case no. 44050 is still pending. 57. For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007). | 1 |
dev | 001-80613 | ENG | RUS | CHAMBER | 2,007 | CASE OF DUNAYEV v. RUSSIA | 3 | Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed;Costs and expenses award - domestic proceedings | Christos Rozakis | 6. The applicant was born in 1938 and lives in the Tula Region. 7. The applicant instituted civil proceedings in Moscow, some 300 kilometres from his place of residence. He sued the Russian Ministry of Finance and the Russian Ministry of Defence in connection with military operations in Chechnya in 1995. He claimed, in particular, that his property, including his flat, had been destroyed during an attack by federal forces on the centre of Grozny in January 1995 and sought compensation for pecuniary damage. The applicant submitted that the damage had been inflicted as a result of the use by the State of hazardous devices (источник повышенной опасности), namely weapons and military equipment, and that he was therefore entitled to compensation under the relevant provision of law without having to prove that the defendant had been at fault. The applicant also stated that he had endured mental suffering when forced to live in the zone of active military action, and claimed compensation for non-pecuniary damage on that account. 8. On 14 December 2000 the Basmanny District Court of Moscow (“the District Court”) examined the applicant's claims. It acknowledged that the applicant's property had been destroyed as a result of an attack in 1995, but noted that the applicant had failed to prove that his possessions had been damaged by Russian federal troops rather than by rebel fighters, as both parties to the conflict had used weaponry and ammunition of the same standard. The court also noted that under Articles 1069–1071 and 1100 of the Civil Code of Russia the State was only liable in damages for the unlawful acts of its agents. It further held that the military operations in Chechnya had been launched by presidential and governmental decrees which had been held to be constitutional by the Constitutional Court of Russia and were still in force. Accordingly, the court concluded that the actions of the Russian federal troops in Chechnya were lawful and dismissed the applicant's claim for compensation for pecuniary and non-pecuniary damage. 9. On the same date the applicant lodged a preliminary notice of appeal (предварительная кассационная жалоба) in which he requested the appellate court to quash the judgment and remit his case for fresh consideration. He also expressed his intention to adduce detailed arguments after acquainting himself with the text of the transcript of the first-instance hearing and obtaining a full copy of the judgment. Thereafter the applicant left for his place of residence. 10. In a letter of 20 December 2000 the District Court informed the applicant that he could obtain a full copy of the judgment of 14 December 2000 and access to his case file at the court registry. 11. On 21 December 2000 the applicant applied in writing to the District Court for a copy of the transcript of the hearing on 14 December 2000, and a document that had been adduced by the defendants at the hearing. According to the applicant, he never received a response to his request. 12. On 17 January 2001 the applicant sent another request to the District Court, which also remained unanswered. 13. In a letter of 14 February 2001 the District Court forwarded a copy of the judgment of 14 December 2000 to the applicant and notified him that a hearing of his appeal was scheduled for 28 February 2001. The applicant received this letter on 21 February 2001. 14. On 27 February 2001 the applicant prepared detailed appeal submissions (кассационная жалоба), in which he claimed that the first-instance court that the defendants had not adduced any evidence capable of refuting his arguments and that therefore the judgment of 14 December 2000 was unfounded and should be quashed. He further reiterated that his property had been destroyed during an attack in January 1995, and that under national law he was entitled to compensation for pecuniary damage. He also stated that he had endured mental suffering when forced to live in the zone of active military action, and therefore had the right to compensation for non-pecuniary damage. The applicant further argued that once the District Court had established that his property had, in fact, been destroyed, it should have indicated who was liable to compensate him for that damage. He claimed in this respect that since the military operations in Chechnya had been launched by the Russian State, it was the State which should compensate him for his losses. The applicant also insisted that during the military operations the State had used hazardous devices, namely heavy artillery and other indiscriminate weapons, and that under national law he was absolved of any obligation to prove that the damage had been caused by the defendants' fault. 15. At the end of his appeal submissions the applicant provided a list of the documents lodged, namely, three copies of his detailed appeal submissions of 27 February 2001, a copy of the preliminary notice of appeal dated 14 December 2000, a copy of the District Court's judgment of 14 December 2000, a motion to exempt the applicant from payment of the court fee, a copy of a certificate indicating the inflation rate in Russia for 1995-2000 and a copy of the summons for the appeal hearing as well as the envelope in which it had been sent marked with the date of receipt. 16. According to the applicant, a few hours before the court hearing on 28 February 2001, he attempted to file his detailed appeal submissions and to gain access to his case file at the registry of the Moscow City Court (“the City Court”), but was not allowed to do so. He then attempted to lodge his detailed appeal submissions at the hearing, but the presiding judge refused. 17. The Government referred to information provided by the Supreme Court of Russia that the applicant's appeal of 27 February 2001 had been accepted and examined by the City Court. They did not indicate the date on which the applicant's appeal had been received and registered by the City Court's registry. 18. By a decision of 28 February 2001 the City Court upheld the judgment of 14 December 2000. The applicant attended the hearing and presented his arguments. The City Court held that the conclusions of the court below were correct and well-founded, since the applicant had not adduced any evidence that the actions of the Russian federal troops within the territory of Chechnya were unlawful or that the alleged damage had been caused by them rather than by rebel fighters. It went on to address the applicant's argument that the weapons used were hazardous devices and that the damage should therefore be compensated irrespective of the question of fault. The City Court noted that this argument could not constitute a ground for quashing the judgment at first instance, as according to a decision of the Plenary of the Supreme Court of Russia, firearms could not be regarded as a hazardous device so that a claim for compensation for the damage caused by the shooting would only lie if the defendant was at fault. It concluded: “The arguments advanced in the appeal do not point to any circumstances which have not been examined by the [first-instance] court or which could rebut the conclusions of the judgment. They seek to re-evaluate the adduced evidence and cannot serve as a basis for quashing the judgment.” 19. On 1 March 2001 the applicant sent a letter to the President of the City Court, complaining about the court's refusal to examine the detailed appeal submissions he had given to the presiding judge at the court hearing on 28 February 2001 and requesting that the appeal be registered and a copy of the court's decision of 28 February 2001 forwarded to him. 20. In a letter of 26 March 2001 the District Court sent a copy of the requested decision to the applicant without further explanation. 21. In order to be able to assess the merits of the applicant's complaint, the Court invited the Government at the admissibility stage to submit documentary evidence to clarify whether the applicant's detailed appeal submissions had been received and registered by the Moscow City Court. 22. In reply, the Government submitted a copy of the applicant's preliminary notice of appeal of 14 December 2000 and of his detailed appeal submissions of 27 February 2001. 23. The first document, which is dated and signed by the applicant, bears the stamp of the Basmanny District Court of Moscow together with a reference number and the date of 14 December 2000. There are also a number of handwritten notes, dates and signatures on the document which make it clear that it was sent to, and received by, the Moscow City Court. 24. The copy of the applicant's detailed appeal submissions, which is dated and signed by the applicant, contains no official stamps or dates to indicate whether they were received by the Moscow City Court and, if so, on what date. The list of the enclosures at the end of the document has been crossed out and the word “refused” has been inserted by hand nearby. The date of this “refusal” is missing, but the signature is very similar to that of the presiding judge on a copy of the appeal decision of 28 February 2001. 25. Article 282 enshrined the right of any party to a dispute and of other participants in proceedings to appeal against a first-instance judgment. 26. Article 283 provided that, as a rule, an appeal should be brought through the first-instance court that delivered the judgment. However, the fact that an appeal was lodged directly with an appellate court should not preclude the latter from examining it. 27. By virtue of Article 284, an appeal could be lodged within ten days after the first-instance judgment was finalised. 28. Article 286 laid down a number of formal requirements for lodging an appeal. In particular, the notice of appeal had to indicate the court to which it was addressed, the name of the person lodging it, the judgment being appealed against and the court which had delivered that judgment, the grounds of appeal and the list of documents enclosed with the appeal. An appellant could not refer to new evidence which had not been before the first-instance court unless he or she could substantiate that it had been impossible to adduce that evidence at first instance. 29. Article 291 secured the right of the other party to the dispute to submit written pleadings in reply to an appeal. | 0 |
dev | 001-110486 | ENG | BGR | CHAMBER | 2,012 | CASE OF SARKIZOV AND OTHERS v. BULGARIA | 4 | No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3-d - Examination of witnesses);Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 2 of Protocol No. 4 - Freedom to leave a country) | David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva | 5. The applicants were born in 1973, 1974, 1978 and 1967 respectively. The first, the second and the third applicants live in Pazardzhik. The fourth applicant lives in Lozen. 6. On 12 October 2004 a preliminary investigation was opened against the applicants in respect of sexual procurement. 7. From 13 to 18 October 2004 the witnesses Mr Zh.M., Mr N.P., Ms R.M. and Ms D.M. were questioned before a judge. Neither the applicants nor their lawyers participated in the questioning. 8. Mr Zh.M. stated that the fourth applicant had owed him money and therefore in March 2004 had offered him the sexual services of one of the prostitutes controlled by him in lieu of payment. Mr Zh.M. had accepted. Later the fourth applicant had proposed to “sell” him the same woman for 2,000 euros (“EUR”). 9. Mr N.P. stated that in July 2004 he had seen two women standing on a main road, had stopped his car and had asked them who was their boss. They had replied that it was the fourth applicant. Then Mr N.P. had called the fourth applicant, who was an acquaintance of his, and the fourth applicant had confirmed that the women were working for him. 10. Ms R.M. stated that in the beginning of 2003 the fourth applicant had suggested that she work for him as a prostitute. She had accepted and the fourth applicant had bought her clothes and a bus ticket to France. There a woman named I. had met her and had found her a hotel. Ms R.M. had been instructed to give the money she earned to Ms I. who would forward it on to the first, the second and the fourth applicants through companies providing money transfer services. After some time the fourth applicant had sent Ms R.M. to Belgium, where the second applicant had met her. Later on, Ms R.M. had returned to Bulgaria and had prostituted herself along the main roads. One day in July 2004 another procurer had stopped his car and had suggested that she work for him. She had told him that she had worked for the fourth applicant, and had given him the latter’s phone number. He had called the fourth applicant and had then left. 11. Ms D.M. stated that in February 2004 she had been contacted by the third and the fourth applicants who had suggested that she work for them as a prostitute. She had refused. 12. On an unspecified date the Pazardzhik District Public Prosecutor’s Office decided that the identity of three other witnesses should be kept secret. 13. On 21 October 2004 witnesses with ID nos. 15 and 16 were questioned before a judge. Before the interviews the judge verified the two witnesses’ identity. 14. Witness no. 15 stated that she had dated the third applicant in the past. According to her statements, in February 2004, while she was still under age, the third applicant took her to a hotel in the town of P. where he left her in a room with an unknown man. Then the man had told her that he had paid the third applicant to have sex with her. She spent about an hour with him. On another day witness no. 15 had met the third applicant who had introduced her to the fourth applicant and a woman named D. The third and the fourth applicants had suggested to witness no. 15 and Ms D. that they work for them as prostitutes. Witness no. 15 had accepted. Afterwards, on a number of occasions from February to April 2004 witness no. 15 had been sent either by the third or the fourth applicants to meet their clients in different towns in Bulgaria. In April 2004 witness no. 15 had informed the third and the fourth applicants that she no longer wished to work for them. 15. Witness no. 16 stated that in February 2004 she had already been engaged in prostitution when the fourth applicant had contacted her and had suggested that she work for him. She had agreed and the first, the second and the fourth applicants had made arrangements for her to travel to Denmark, France and other countries in order to work as a prostitute. She had sent them money by using money transfer services or through third parties. After some time she had told them that she no longer wished to work for them. 16. Immediately after the interviews the records of the witnesses’ statements were presented to the applicants and their lawyers, and they were given the opportunity to put questions. The applicants and their lawyers stated in writing that they had acquainted themselves with the records and had no questions to put to the anonymous witnesses. 17. On 27 October 2004 the witness with ID no. 17 was questioned before a judge who verified her identity. The first, the second and the fourth applicants and the lawyers of the second and the fourth applicants participated in the interview but the witness’ identity was protected. The third applicant and his lawyer, as well as the first applicant’s lawyer, although duly summoned, were absent. Witness no. 17 stated that in the summer of 2003 she had accepted to work as a prostitute for the first, the second and the fourth applicants. They had arranged her travel to and stay in Denmark, Norway and France, and she had sent money to individuals specified by them. After some time she had informed the fourth applicant that she no longer wished to work for him. 18. The District Court invited the applicants and their lawyers to put questions to witness no. 17. The first, the second and the fourth applicants expressly stated in writing that they had no questions for her. 19. On 4 November 2004 the District Court ordered three banks to inform the prosecution and the police authorities of the international money transfers ordered or received by certain individuals suspected of having been involved in the applicants’ sexual procurement activities. On 24 November 2004 the District Public Prosecutor issued a similar order in respect of two other banks. 20. On an unknown date the applicants were accused of having induced into prostitution, procured or transported, individually or in complicity with each other, the three anonymous witnesses and other women. 21. The applicants were also apparently subject to special means of surveillance for an unknown period of time. 22. On 22 April 2005 the District Public Prosecutor’s Office filed an indictment against the applicants. On an unknown date the District Court decided that the public should be excluded from the trial. 23. On 5 July 2005 the District Court held a hearing in the case. The anonymous witnesses and nine other witnesses did not appear. The court adjourned the hearing because of irregularities in the summoning of witnesses. 24. The next hearing was held on 21 September 2005. Witness no. 15 was present, but the other two anonymous witnesses and ten other witnesses did not appear. The District Court adjourned the hearing because of irregularities in the summoning of witnesses. 25. On 4 November 2005 the District Court held a further hearing. The anonymous witnesses and eleven other witnesses did not appear. The Prosecutor’s Office submitted written statements by two of the anonymous witnesses that they were aware of the criminal proceedings and did not wish to attend the hearing. The applicants’ lawyers requested that the anonymous witnesses be found and questioned. The District Court held that the anonymous witnesses had been the victims of the crimes of which the applicants had been accused, and therefore were free to decide whether they wished to attend the hearing. It questioned seven witnesses, who stated that they did not know or did not remember anything about the case. However, two of the witnesses, Mr A.D. and Mr I.S., admitted that they had received international money transfers, and Mr A.D. specified that he had thus done the fourth applicant who had had no identity card a favour. The Public Prosecutor requested that the records of the witnesses’ statements before the investigator be read out in court. However, the applicants did not give their consent and the District Court dismissed that request. 26. The next hearing was held on 20 December 2005. The anonymous witnesses and several other witnesses were again absent. The Prosecutor’s Office submitted a police report attesting to the fact that one of the anonymous witnesses was abroad. The District Court ordered that the anonymous witnesses and the other absent witnesses be found and brought before it. It further questioned four witnesses, including the witness R.M. After that it read out R.M.’s testimony given before a judge at the pre-trial stage (see paragraph 10 above), finding that there was inconsistency in her statements. Another witness, Ms Ts.V., stated that in October 2004 the fourth applicant had suggested that she work for him as a prostitute but she had refused. 27. The next hearing was held on 20 February 2006. The District Court examined one witness and admitted the evidence obtained from the use of special means of surveillance. The anonymous witnesses and several other witnesses once again did not appear. The Prosecutor’s Office stated that two of the anonymous witnesses were abroad and that the third could not be found. The applicants’ lawyers insisted that the anonymous witnesses be found and questioned, and asserted that anonymity was not justified as the applicants knew the identity of those witnesses. The District Court again ordered that the anonymous witnesses and the other missing witnesses be found and brought before it. 28. A further hearing was held on 28 March 2006. The anonymous witnesses and several other witnesses did not appear. A police report was submitted, stating that two of the anonymous witnesses had left the country and the third one had not been found. The applicants’ lawyers insisted that the anonymous witnesses be found and questioned, and expressed doubts about the efforts of the prosecution authorities to ensure their presence at the trial. They further requested the cancellation of the witness protection measures, stating that the applicants were already aware of their identity. The District Court found that the reasons for protecting the anonymous witnesses persisted. Noting that the anonymous witnesses were abroad, it read out their statements given at the pre-trial stage and admitted them. It did the same with the testimony of Mr Zh.M. (see paragraph 8 above), who appeared but stated that he did not remember anything about the case, and with the testimony of three other witnesses who had been questioned before a judge at the pre-trial stage, including Mr N.P. and Ms D.M. (see paragraphs 9 and 11 above), who could not be found and summoned. The District Court also read out and admitted a number of documents, such as reports on international money transfers, police reports, and the information obtained through the secret surveillance of the applicants. The applicants’ lawyers unsuccessfully requested the recusal of the panel. 29. In a judgment of 28 March 2006 the District Court convicted the applicants, individually or in complicity with each other, of having induced or attempted to induce into prostitution, procured or transported the three anonymous witnesses and the witnesses Ms R.M., Ms D.M. and Ms Ts.V. Mr Sarkizov was sentenced to three years’ imprisonment and a fine, Mr Vasilev – to three years’ imprisonment and a fine, Mr Petkov – to three years and two months’ imprisonment and a fine, and Mr Marinkov – to five years’ imprisonment and a fine. The District Court found that the victims’ statements, including those of the anonymous witnesses, had been corroborated by the other evidence in the case, such as other witness statements, reports on international money transfers, reports from the border control authorities, and the information obtained through the secret surveillance of the applicants. 30. Following an appeal by the applicants, on 4 July 2006 the Pazardzhik Regional Court held a hearing. It dismissed the applicants’ request that the anonymous witnesses be questioned, finding that this was not necessary. 31. In a judgment of 17 July 2006 the Regional Court upheld the sentence of 28 March 2006. It fully endorsed the findings and conclusions of the District Court. 32. The judgment of 17 July 2006 was not subject to an appeal on points of law and became final. 33. On an unknown date the applicants requested the reopening of the criminal proceedings. In a judgment of 30 May 2007 the Supreme Court of Cassation dismissed the request. It held that there had been no procedural breaches in the examination of the anonymous witnesses at the pre-trial stage, and that the applicants had been acquainted with the examination records and had explicitly stated that they had no questions to put to those witnesses. The court further emphasised that the anonymous witnesses’ testimony had not been the sole or decisive evidence for the applicants’ conviction, but had been corroborated by a wealth of other evidence. 34. The second applicant was conditionally released from prison on 26 April 2007 with a six-month supervision period, which expired, apparently, in October 2007. 35. On 4 June 2007 the Pazardzhik Regional Police Directorate prohibited him from leaving the country pending his rehabilitation (see paragraph 46 below). He appealed against the order, arguing that he had no employment in Bulgaria and that the prohibition did not contribute to his social re-integration, was excessive and unnecessary. In a final judgment of 28 January 2008 the Supreme Administrative Court dismissed the appeal. The court held that the prohibition had been imposed in compliance with the law, on the grounds of the second applicant’s conviction for an offence subject to public prosecution, and that the ratio legis behind the prohibition was to prevent criminally active individuals from travelling abroad until they had proved that they had been reformed. 36. On an unknown date the fourth applicant was released from prison. 37. On 7 April 2008 the Pazardzhik Regional Police Directorate prohibited him from leaving the country pending his rehabilitation. He appealed against the order, arguing that he had served his sentence, that there were no pending criminal proceedings against him, that his work as a football manager required frequent travel abroad and that he had to accompany his son for medical treatment abroad. In a final judgment of 18 December 2008 the Supreme Administrative Court dismissed the appeal, holding that the assessment of the administrative body was not subject to judicial control. The court further held that the police authorities were not obliged to state any reasons for their decision to impose the ban. 38. Seeing that the travel bans were contingent on the judicial rehabilitation of the second and the fourth applicants, these measures apparently would have lasted at least until October 2010 for the second applicant and until an unknown date in 2011 for the fourth applicant (see paragraph 46 below). However, in October 2009 the Bulgarian Identity Papers Act was amended to the effect that convicted individuals who had served their sentences could no longer be prohibited from leaving the country. As a result, all travel bans imposed before that amendment ceased to have effect as from July 2010 (see Nalbantski v. Bulgaria, no. 30943/04, § 25, 10 February 2011). 39. Pursuant to Articles 97a and 98 of the 1974 Code of Criminal Procedure (“the 1974 CCP”), in force until 29 April 2006, measures for the protection of a witness had to be taken where there were sufficient grounds to believe that his testimony had caused or could have caused a real risk to his life, health or property or that of his close relatives or other individuals with whom he had very close ties. The decision that a witness should be protected had to specify the reasons for the protection and its type. The pretrial authorities and the court had a direct access to the protected witness and were obliged to verify his identity before the interview. A copy of the record of the interview with a protected witness had to be presented immediately to the accused and his lawyer who were entitled to put questions to the witness. The measures for protection could be discontinued at the request of the protected witness or where they were no longer necessary. 40. Pursuant to Article 99a of the 1974 CCP, the charges and the conviction could not be based exclusively on the testimony of anonymous witnesses. 41. These provisions were superseded by Articles 123, 124 and 141 of the 2006 CCP, in force since 29 April 2006, which repeat their text almost verbatim. 42. In a binding interpretative decision (тълк. реш. № 2 от 16 юли 2009 г. на ВКС по тълк.д. № 2/2009 г., ОСНК) of 16 July 2009 the Plenary Meeting of the Criminal Chambers of the Supreme Court of Cassation resolved a number of contentious issues relating to the construction of various provisions of the Criminal Code and the 2006 CCP on the prosecution of human trafficking. In point 5 of the decision it held that the victim of a human trafficking offence could participate in the criminal proceedings as an anonymous witness. It held that the accused’s defence rights could be subjected to reasonable restrictions, including by granting anonymity status to the testifying victim, in order to protect the latter’s rights. However, a strict judicial control had to be exercised over the reasons for granting anonymity to testifying victims and over the procedures aimed at counterbalancing the restriction of the defence rights. According to the Supreme Court of Cassation, in cases of anonymous witnesses the legislation provided three procedural safeguards against the risk of manipulating the evidence in favour of the prosecution: (1) the direct contact between the judge and the anonymous witness, which guaranteed, at the very least, that such a witness indeed existed; (2) the right of the accused and his lawyer to put questions to the anonymous witness immediately after his questioning; and (3) the limited probative importance the legislation attached to anonymous testimony (see paragraph 40 above). The court made reference to the case-law of this Court and concluded that the rules of fair trial would not be breached if the above procedures were strictly complied with, and notably, if the accused has been given the opportunity to put questions to the anonymous witness immediately after the questioning of the latter. 43. The possibility to interview a witness before a judge, in cases where it is likely that the witness would not be able to attend the trial due to illness, absence or other reasons, or where his testimony would be of “exceptional importance for the establishment of objective truth”, was provided for in Article 210a of the 1974 CCP. The provision was inserted with effect from 1 January 2000 with the aim of creating a possibility to use evidence collected at the pre-trial stage of the proceedings, while at the same time conforming to the principle of immediacy of judicial proceedings. Article 210a § 2 specifically provided that the investigator or prosecutor in charge of the interview had to ensure the witness’s presence and “a possibility” for the accused and his counsel to take part in the interview. 44. Article 279 of the 1974 CCP allowed the statement of a witness given at the pre-trial stage to be read out in court if, inter alia, there was a considerable discrepancy between that statement and the witness’ testimony given at the trial; if the witness had not been found and summoned or was unable to appear in court; or if he had appeared but had refused to testify at trial or had stated that he did not remember anything. If the accused was not represented, the court had to inform him that the testimony thus read out would be used for the determination of the criminal charges against him. Where the statement had been made before a judge, pursuant to Article 210a of the 1974 CCP, there was no requirement for the court examining the case to obtain the consent of the parties (Article 279 § 1). 45. The relevant domestic law and practice concerning travel bans on convicted individuals pending their rehabilitation are set out in the Court’s judgment in the case of Nalbantski, cited above, §§ 25-29. 46. Under Article 87 § 1 of the 1968 Criminal Code, a convicted individual may benefit from judicial rehabilitation. Such rehabilitation may be granted by the court which convicted him or her, if more than three years have elapsed since the serving of the sentence, and the individual concerned has not committed another offence punishable with imprisonment, has demonstrated good behaviour and, in the case of offences committed with intent, has made good any damage done. The latter requirement may be disregarded by the court if there is good reason (Article 87 § 2). 47. Section 1 of the 1988 State and Municipalities Responsibility for Damage Act (“the SMRDA”), as in force since July 2006, provides as follows: “The State and the municipalities shall be liable for damage caused to individuals and legal persons by unlawful decisions, actions or omissions by their organs and officials, committed in the course of or in connection with the performance of administrative action.” 48. Pursuant to the consistent case-law of the domestic courts, for the impugned conduct to be considered unlawful, it must be in breach of national law. | 1 |
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