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train
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001-79628
|
ENG
|
DEU
|
ADMISSIBILITY
| 2,007
|
GOBEL v. GERMANY
| 4
|
Inadmissible
|
Peer Lorenzen
|
The applicant, Mr Alexander Göbel, is a German national who was born in 1970 and has been placed in a psychiatric clinic (Schloß Werdeck) in Straubing. The applicant has been convicted eleven times in the period between 1985 and 1994, inter alia of fraud in thirty-eight cases (judgment of the Bad Kissingen District Court of 12 February 1991) and in sixty cases (judgment of the Stuttgart Regional Court of 7 July 1994). On the latter occasion, he had been sentenced to two years’ imprisonment. On 13 March 2001, the Schweinfurt Regional Court convicted the applicant of fraud in nineteen cases and sentenced him to four years’ imprisonment. The Schweinfurt Regional Court stressed that the damage which the applicant had caused with his offences amounted to around 80.000 DEM. After having considered an expert opinion by a psychiatrist, the Schweinfurt Regional Court ordered the applicant’s placement in a psychiatric hospital because of his diminished culpability (eingeschränkte Schuldfähigkeit). According to the expert opinion, the applicant suffered from a severe personality disorder in combination with diminished intelligence. The numerous cases of fraud committed by the applicant were a direct consequence of that personality disorder. The disorder had also been noted in other examinations of the applicant in connection with previous criminal proceedings. The expert opinion stressed that the applicant had built his own dreamworld in which he saw himself as a very wealthy and smart businessman and which was carefully protected from outside social contacts. Because of his diminished intellectual capacity, the applicant lacked the capacity to estimate the consequences of his behaviour. The expert opinion concluded that there was a high danger of recidivism. The Schweinfurt Regional Court agreed with this conclusion, given that the lengthy period of imprisonment had not deterred the applicant from committing the above frauds. On 20 November 2002, the Schweinfurt Regional Court ordered the continuation of the placement. I. The decisions during the period 2003-2004 On 20 November 2003, the Schweinfurt Regional Court again ordered the continuation of the applicant’s placement in the hospital and scheduled the next review date for 19 November 2004. The court found that it could not be expected that the applicant would not commit any further offences and concluded that the remainder of the sentence could not be suspended on probation. The Schweinfurt Regional Court heard the applicant in the presence of his therapist and obtained a statement by the treating doctors of the psychiatric clinic. That statement was explained and discussed during the court hearing. According to the statement, collaboration with the applicant was markedly difficult. There was no sign of understanding of his disorder or a motivation for improvement on the part of the applicant. On the other hand, the applicant sought to live out his need for recognition through numerous legal proceedings, denunciations of clinic staff and disciplinary complaints. For a period of six months, the therapist had tried to increase trust in order to enable the applicant to settle his disputes without recourse to legal means. As the applicant increasingly adopted realistic views, the treatment showed first signs of success. An essential change in the applicant’s personality could however not be noted. The Schweinfurt Regional Court, after having heard the applicant, agreed with the clinic’s statement and found that the applicant’s situation, in particular his need for recognition, had not changed. As the impression which the court obtained from hearing the applicant matched exactly the clinic’s statement, the court saw no need to order an expert opinion by an outside expert. On 2 February 2004, the Bamberg Court of Appeal dismissed the applicant’s appeal against the decision of the Schweinfurt Regional Court of 20 November 2003. It found that it had not been necessary to obtain the opinion of an independent expert as the convincing expert opinion of the clinic doctors clearly indicated that a suspension could not be accounted for. The court agreed with the reasoning of the Schweinfurt Regional Court that a positive change in the applicant’s personality could not be observed. On the contrary, there existed the risk that the applicant, left at large, would commit further offences in the future which demanded the execution of the placement and continuing treatment. The Bamberg Court of Appeal noted that the applicant had announced the submission of an expert opinion (Privatgutachten) which had not been introduced in time. On 5 October 2004, the Federal Constitutional Court refused to admit the applicant’s constitutional complaint. It reasoned that the ordinary courts had sufficiently taken into account the applicant’s right to liberty. The courts had considered an expert opinion which at the time had not been older than three years together with a statement by the hospital. The latter document had not indicated that the applicant had responded to the treatment. Hence the courts had not been required to order a new expert opinion by an independent expert. It could not be objected to from a constitutional point of view that the courts had made a prognosis which was unfavourable to the applicant and that they did not consider the suspension of the applicant’s placement. On the contrary, the decisions were reasonable given the number of frauds committed by the applicant who had caused considerable damage and the lack of success in treating the applicant’s personality disorder which had abetted those offences. The applicant was represented by legal counsel in the above proceedings. II. Further developments regarding the applicant’s placement According to the applicant, the continuation of his placement was ordered on an annual basis in the following years, each time allegedly without having considered the opinion of an independent expert. Relevant provisions of the German Criminal Code (Strafgesetzbuch) Measures of reform and prevention are: 1. placement in a psychiatric hospital; (...) A measure of reform and prevention may not be ordered when it is disproportionate to the significance of the acts committed by, or expected to be committed by the perpetrator, as well as to the degree of danger he poses. Section 63 Placement in a Psychiatric Hospital If someone committed an unlawful act and at the time lacked capacity to be adjudged guilty (Section 20) or was in a state of diminished capacity (Section 21), the court shall order placement in a psychiatric hospital if a comprehensive evaluation of the perpetrator and his act reveals that, as a result of his condition serious unlawful acts can be expected of him and he therefore presents a danger to the general public. (1) If placement in an institution pursuant to Sections 63 and 64 is ordered collaterally to imprisonment, then the measure shall be executed before the punishment. (...) (5) If the measure is executed before the punishment, then the court may suspend the execution of the remainder of punishment and grant probation under the provisions of Section 57 subsection (1), sent. 1, no. 2, if half of the punishment has been completed. If the remainder of punishment is not suspended, the execution of the measure shall continue; the court may nevertheless order the execution of the punishment if circumstances relating to the convicted person make it seem advisable. (2) If no maximum term has been provided or the term has not yet expired, then the court shall suspend the further execution of the placement and grant probation if it can be expected that the person under placement will not commit any more unlawful acts if released from execution of the measure. Supervision of conduct shall commence with the suspension. (1) The court may review at any time whether the further execution of the placement should be suspended and probation granted. It shall make this review before the expiration of specified terms. (2) With respect to the various placements, these terms shall be: (...) one year, if in a psychiatric hospital;
| 0
|
train
|
001-99226
|
ENG
|
RUS
|
CHAMBER
| 2,010
|
CASE OF ZAKHARKIN v. RUSSIA
| 3
|
Remainder inadmissible;Violations of Art. 3 (substantive aspect);Violation of Art. 6-1;Violation of Art. 34;Non-pecuniary damage - award
|
Anatoly Kovler;Christos Rozakis;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
|
6. The applicant was born in 1970. He is now serving his sentence in the Perm Region. 7. On 15 October 1999 the applicant was arrested in Yekaterinburg on suspicion of robbery. He was allegedly beaten up by the police. At about midnight he was put in a cell at the Kirovskiy District police station. 8. The applicant stayed in the cell until 5.40 p.m. on 16 October 1999. The cell was not equipped with a bunk or a bench. The applicant remained handcuffed all the time. He was not given any food and was escorted to the toilet only once, in the morning. 9. By letter of 11 June 2003, the head of the Kirovskiy District police station of Yekaterinburg confirmed that the cells in the police station were not equipped with bunks or benches and that detainees were not provided with food. 10. On 16 October 1999 the applicant was transported to the Yekaterinburg temporary detention facility. 11. A certificate issued on 29 August 2002 by the doctor of the Yekaterinburg temporary detention facility indicates that the applicant was held in the facility from 16 to 25 October 1999. A medical examination revealed a bruise on his right eye and abrasions on his face. 12. On 25 October 1999 the applicant was transferred to remand centre no. IZ-66/1 in Yekaterinburg. 13. On 2 November 1999 he was escorted to the prosecutor's office, where he was questioned. After questioning he was transported to the Ozersk Town temporary detention facility in the Sverdlovskiy Region. On his way there the escorting officers allegedly beat him and urged him to confess. Once in the detention facility, the applicant signed a confession statement. 14. The applicant remained in the Ozersk Town temporary detention facility until 25 November 1999. He was held in a solitary cell measuring 2 sq. m. The cell was not equipped with a bunk or toilet facilities. The applicant was escorted to the toilet twice a day. He was given bread and tea three times a day. The window allegedly had no glazing and it was extremely cold in the cell. A certificate issued by the Federal Meteorological Service indicates that the outside temperature in November 1999 ranged from 6º C to - 21º C. 15. On 25 November 1999 the applicant was transported to remand centre no. IZ-66/1 in Yekaterinburg, where he remained for the entire duration of the criminal proceedings against him. 16. On 2 and 3 December 1999 the applicant allegedly complained to the prosecutor's office that he had been ill-treated by the police. He did not receive any reply. He did not produce copies of his complaints. 17. The trial started on 18 December 2001 in the Sverdlovskiy Regional Court. It transpires from the trial record that on 20 March 2002 the presiding judge Ms G. chose by lot, from a list of ten names, two lay judges and a substitute lay judge to examine the applicant's case. The formation thus included the presiding judge Ms G., two lay judges, Ms T. and Ms O., and a substitute lay judge, Ms Ye. 18. On 19 September 2002 the Sverdlovskiy Regional Court convicted the applicant of several counts of armed robbery, murder and attempted murder of a policeman and sentenced him to life imprisonment. The applicant appealed, complaining, in particular, about the allegedly unlawful composition of the trial court. 19. On 3 June 2003 Ms Perevoshchikova, counsel for the applicant, asked the President of the Sverdlovskiy Regional Court for information about the appointment and terms of office of the lay judges Ms T., Ms O. and Ms Ye. On 17 July 2003 a deputy President of the Sverdlovskiy Regional Court replied that all judges of the Sverdlovskiy Regional Court were competent to try criminal cases at first instance. He disclosed no details about the appointment procedure or terms of office of the lay judges. 20. On 28 August 2003 the Supreme Court of the Russian Federation rejected the applicant's request to allow the lawyer Ms Demeneva to act as his counsel, on the grounds that she was not a professional advocate and was not present at the appeal hearing. It was also noted that the applicant was represented by Ms Perevoshchikova, counsel. The court then examined the applicant's appeal and upheld the conviction. It held that no breach of the rules on the appointment of lay judges had been established. 21. On 8 September 2003 counsel for the applicant applied to the President of the Sverdlovskiy District Court for permission to access copies of judgments delivered by the Sverdlovskiy District Court between 1999 and 2002, in order to verify whether the lay judges Ms T., Ms O. and Ms Ye. had participated in other criminal cases during those years. She also asked the President whether the names of the lay judges had been drawn at random by lot as required by the Lay Judges Act. 22. By undated letter the President of the Sverdlovskiy Regional Court refused access to the court's archives, stating that counsel could only study the applicant's case file. Ms T. and Ms O. had been appointed as lay judges in 1993, while Ms Ye. had been appointed in 1999. Their terms of office had been extended by presidential decrees. He further mentioned that the names of the lay judges had been drawn by lot, but refused to send a copy of the records. 23. On 30 September 2003 the head of the secretariat of the Sverdlovskiy Regional Legislature informed counsel for the applicant that the list of lay judges for the courts of the Sverdlovskiy Region had been complied in May 2000. Ms T., Ms O. and Ms Ye. did not appear on the 2000 lists. 24. On 8 February 2006 the Presidium of the Supreme Court, acting on supervisory review, quashed the appeal judgment, finding that the applicant had not been notified of the date and time of the appeal hearing. It remitted the case to the Supreme Court for fresh examination on appeal. 25. On 31 July 2006 the Supreme Court upheld the conviction on appeal. It held, in particular, that the lay judges Ms T. and Ms O. had been appointed in 1993 and that their term of office had been extended by presidential decrees. It concluded that the court's composition had been lawful. The applicant was represented by two lawyers of his choice. 26. The documents submitted by the Government show that on 25 March 1999 the Sverdlovskiy Regional Legislature selected 551 lay judges to be assigned to the Sverdlovskiy Regional Court. The list mentioned Ms Ye., but not Ms T. or Ms O. By decisions of 18 and 25 May 2000 the Sverdlovskiy Regional Legislature determined the number of lay judges to be selected for each district court. No actual selection of lay judges was made. 27. From 25 November 1999 to 18 November 2003 the applicant was held in remand centre no. IZ-66/1 in Yekaterinburg. On 18 November 2003 he was transferred to a correctional colony in the Vologda Region. 28. According to a certificate of 18 August 2008 issued by the remand centre management and produced by the Government, until July 2002 the applicant was held in communal cells. It was not possible to establish the number of inmates in each cell, as the remand centre registers for that period had been destroyed on expiry of the statutory storage time-limit. From 6 July 2002 to 18 November 2003 the applicant was held in solitary cells. Cell no. 210 measured 6 sq. m, cell no. 32 measured 4.5 sq. m, cell no. 1 measured 4 sq. m and cell no. 10 measured 7 sq. m. 29. The Government submitted, relying on certificates dated 18 August 2008 from the remand centre management, that all the cells were naturally illuminated and ventilated through the windows. The windows in all the cells were glazed. They had no blinds or other screens preventing the access of natural light. Moreover, all the cells were fitted with fluorescent lamps which functioned during the day and at night. The cells were equipped with central heating and the average temperature inside was above 20º C in winter and above 18º C in summer. 30. It follows from the same certificates that all the cells had toilet facilities which were not separated from the living area by a partition as “there was no such requirement under [domestic law]”. It was, however, possible to screen the toilet facilities off by a curtain. The dining table and the beds were situated at least two metres away from the toilet facilities. There were no insects or rodents in the remand centre, as all the cells were disinfected every month. The applicant was allowed to take a shower once a week and was provided at that time with clean bedding. He was also supplied with boiled drinking water and wholesome hot food three times a day. He had an hour-long daily walk. Occasionally the duration of the daily walk was shortened to thirty minutes. In reply to the applicant's complaints, the warders responsible for that omission had been reprimanded. Pursuant to an order by the governor of the remand centre the applicant, who was considered dangerous, was handcuffed when taken to the exercise yard. 31. In addition to the certificates of 18 August 2008 the Government also produced certain documents dating from the period of the applicant's detention in remand centre no. IZ-66/1 in support of their description of the conditions of the applicant's detention. Hence, they submitted a letter of 16 October 2002 addressed to a deputy prosecutor of the Sverdlovskiy Region in which the chief sanitary inspector of penitentiary institutions stated that the applicant was currently held in cell no. 32. The cell measured 6.5 sq. m, was illuminated artificially by fluorescent lamps and was equipped with central heating and sewerage facilities. The average temperature was 18 to 20º C and the humidity was “subjectively normal”. The cell was equipped with a bunk and the applicant was provided with bedding. The inspector added that the applicant had been previously held in cell no. 210, which measured 8.8 sq. m and possessed the same characteristics. 32. The Government also submitted a decision of 1 November 2002 by the governor of the remand centre ordering that the applicant be handcuffed every time he was let out of his cell, including when he was taken to the visitors' room, the exercise yard or the shower room. He noted that the applicant had been sentenced to life imprisonment and had been registered as a person liable to escape, attack the warders and take hostages. Accordingly, his handcuffing was necessary to protect the warders and escorting officers. 33. According to numerous written statements from the warders, produced by the Government, the conditions of the applicant's detention were satisfactory. He was provided with sufficient food three times a day. His cells were clean, warm and dry. One of the warders, Mr I., stated that the applicant's cell was one of the best in the remand centre. He continued: “One day in December 2002 [the applicant] asked for a piece of material that he might use to insulate his window. The window was not glazed and it was covered by a blanket. In principle, that had no impact on the temperature in cell no. 10 where [the applicant] was held. It was very warm in the cell... [the applicant] was given a piece of polythene... [The applicant] always wears handcuffs on the way to the exercise yard, but in the yard the handcuffs are removed...” 34. Finally, without relying on any documents, the Government submitted that one of the solitary cells in which the applicant was held, cell no. 10, measured 5.2 sq. m. The windows in the remand centre were not covered with blinds, these having been removed before 25 December 2002. The toilet facilities were equipped with a flush system and were separated from the living area by a partition. 35. From 25 November 1999 to 6 July 2002 the applicant was held in various cells in buildings nos. 2 and 3 in remand centre no. IZ-66/1. Each cell accommodated from twenty-five to thirty-five inmates. All the cells were overcrowded. 36. On 6 July 2002 the applicant was placed in solitary cell no. 210. The cell measured 3.2 sq. m. It had concrete walls and floor. The window was covered with a metal screen with eight ventilation holes. The toilet was not separated from the living area. There was no hot running water in the cell. 37. On 25 September 2002 the applicant was transferred to solitary cell no. 32, post 13, in the basement, where he remained until 14 October 2002. All his personal belongings, including warm clothes, were taken away from him and he was given dirty prison overalls. The cell was 1.8 metres in width and 4.5 metres in length. The walls were covered with mould, water was dripping from the ceiling and the floor was dirty with mud. There was no access to natural light or fresh air. There was no hot running water in the cell. The applicant, who was ill with arthritis, suffered as a result of the cold and the damp. 38. The applicant submitted photographs of cell no. 32 confirming his description. The photographs show bare concrete walls, floor and ceiling, all with damp patches on them. The cell is equipped with a floor-level toilet with a rusty water pipe with a tap in place of a flush system. There is also a rusty sink alongside, with its outlet pipe leading to the toilet outlet. The toilet facilities are not separated from the living area. Other photographs show two rusty two-tier metal beds, one of them covered with a dirty mattress, and a small metal shelf used as a dining table. There are two small ventilation outlets immediately under the ceiling. There is apparently no window. 39. One of the photographs shows a door vent about ten centimetres wide. According to the applicant, the food was handed to him through that vent. The food parcels from his wife that could not pass through the vent were not given to him. 40. From 14 to 22 October 2002 the applicant stayed in solitary cell no. 1, post 31. It was stifling inside the cell as it had no window or ventilation device. 41. On 22 October 2002 the applicant was transferred to solitary cell no. 10, post 31, in the basement, where he remained until 18 November 2003. The cell measured 1.7 metres in width and 2 metres in length, that is, 3.4 sq. m. The dimensions of the window were 50 centimetres by 50 centimetres. It was covered with four metal grilles placed behind one another and blocking access to natural light. The window had no glazing and it was extremely cold in the cell during the winter. At the applicant's request the warders gave him a piece of polythene to insulate the window. A certificate issued by a private meteorological company indicates that the outside temperature in October, November and December 2002 ranged from 9º C to - 30º C. 42. The applicant submitted photographs of cell no. 10 confirming his description. The concrete walls of the cell are indeed covered with damp patches. There is no lavatory bowl; instead, there is a hole in the floor at the corner of the cell. There is no sign of a flush or other washout system. The toilet is not separated from the living area. Next to the toilet, there is a rusty sink and a small dining table. A two-tier metal bed is placed along the opposite wall. The only window is an aperture in a thick concrete wall with several metal bars placed behind one another. 43. Finally, according to the applicant, he was handcuffed every time he was let out of his cell and taken to the exercise yard. Given that on some days the air temperature was below zero, the metal handcuffs hurt his hands. His daily outdoor exercise was on many occasions curtailed to half an hour instead of the one hour prescribed by law. 44. The applicant submitted copies of his numerous complaints to the supervising prosecutor, together with the replies he received. Thus, on 27 and 30 September, 1, 4, 7, 8, and 11 October 2002 the applicant and his counsel complained to the supervising prosecutor about the appalling conditions of the applicant's detention in cells nos. 210 and 32. In particular, the applicant complained that the cells were cold, dark and humid, and that his personal belongings had been taken away from him. In the complaint dated 8 October 2002 the applicant also alleged that his daily outdoor exercise had been shortened to half an hour and that he was handcuffed while in the exercise yard. 45. On 30 September 2002 the governor of remand centre no. IZ-66/1 replied that the applicant's cell measured 4 sq. m and that all the sanitary norms were met. 46. By letter of 30 October 2002 the supervising prosecutor replied that the applicant's conditions of detention were satisfactory and met the established norms. In particular, cell no. 210 measured 8.8 sq. m, while cell no. 32 measured 6.5 sq. m. The cells were illuminated artificially. The temperature ranged between 18 and 20 degrees above zero and the humidity was “subjectively normal”. He conceded that the applicant's personal belongings had been taken from him unlawfully, but noted that they had been returned to him on 3 October 2002. He also acknowledged that the applicant's handcuffing on his way to the exercise yard had been unlawful and informed the applicant that the warders had been disciplined. 47. In December and January 2002 the applicant and his counsel lodged several more complaints with the supervising prosecutor. They alleged that it was very cold in cell no. 10 as the window had no glazing. They also complained about the insufficient outdoor exercise allowed to the applicant and about his handcuffing while he was in the exercise yard. They further claimed that the amount of food was inadequate, that the applicant was not allowed to buy food in the facility's shop and that food parcels from relatives were limited to 30 kg per month. They complained that on several occasions the applicant had not been given any food during the entire day and that sometimes the warders withheld food parcels brought by the applicant's wife. Lastly, the applicant alleged that his personal television set had been taken away from him. 48. On 16 January 2003 the governor of detention facility no. IZ-66/1 replied that the applicant's conditions of detention were satisfactory. 49. In reply to further complaints by the applicant, the supervising prosecutor acknowledged on 20 January 2003 that the duration of his daily outdoor exercise had been unlawfully restricted. However, he considered that it was necessary to handcuff the applicant when he was taken to the exercise yard, in order to protect the escorting officers. He also informed the applicant that owing to staff shortages it was not possible to provide him with hot food every day. 50. On 5 May 2003 the applicant complained to the supervising prosecutor that it was stifling inside his cell and that it was swarming with rats and mice. He further alleged that the toilet was not separated from the living area and that when using the toilet he was in full view of the warders, many of whom were women. It appears that the complaint remained without reply. 51. On 15 September 2003 counsel for the applicant complained to the supervising prosecutor that on 11 September 2003 a piece of polythene which he had been using to insulate the window had been taken away from him and that it was cold in his cell because the window had no glazing. The prosecutor of the Sverdlovskiy Region requested an explanation from the head of the penitentiary department of the Svderdlovskiy Region. In his letter of 21 October 2003 the head of the penitentiary department stated that the windows in the remand centre were currently being glazed, and that therefore the inmates were not provided with polythene. 52. In April 2001 the applicant was diagnosed with arthritis. 53. On 18 and 20 April 2001 he was examined by the doctor of remand centre no. IZ-66/1, who prescribed anti-inflammatory treatment for arthritis. 54. On 26 April 2001 the applicant was taken to prison hospital IK-2 in Yekaterinburg (ОБ при ФБУ ИК-2) for an examination. He was diagnosed with arthropathy (a joint disease) of the knee, ankle and wrist joints. On 8 May 2001 he was discharged. 55. From 23 October to 8 November and from 4 to 6 December 2001 the applicant underwent further examinations in prison hospital IK-2. He was diagnosed with infectious allergic polyarthritis. 56. On 8 and 21 January 2002 the applicant complained to the remand centre doctor of pain, swelling and stiffness in the joints of his upper and lower limbs. The doctor confirmed the previous diagnosis and prescribed anti-inflammatory pills for arthritis. 57. In May 2002 the applicant was examined by the remand centre doctor, who prescribed intra-muscular injections for ten days. The medical record states that ten injections were administered between 21 May and 12 June 2002. 58. On 28 August 2002 the applicant again complained of pain and swelling in his arm, elbow, finger, knee and ankle joints. The remand centre doctor noted that the applicant's disease was “long-standing and persistent” and referred him for examination to the prison hospital. 59. On 12 September 2002 the applicant was admitted to prison hospital IK-2, where he remained until 17 September 2002. He was diagnosed with rheumatoid arthritis and slow-progressing seronegative polyarthritis. The doctors recommended that the applicant stay away from cold and damp places, be examined by a rheumatologist and follow in-patient treatment. 60. On 5 November 2002 the applicant was examined by Dr L., a rheumatologist from the Central Town Hospital. She recommended a high-calorie diet and avoidance of exposure to cold. She noted that it was unacceptable to restrict the applicant's food intake. She also prescribed treatment. In particular, she recommended that the applicant should take anti-inflammatory pills and apply ointments on a continuous basis and should follow a one-month course of hepatoprotective treatment. Regular blood counts and X-ray testing should be performed. It was, however, premature to prescribe any disease-modifying drugs (базисная терапия) or hormone therapy. She concluded that further medical tests and constant medical supervision were necessary. 61. According to the applicant, he did not receive any treatment except analgesics (painkillers) and several injections because the medical unit at the remand centre did not have the necessary medication. 62. In reply to the complaints of insufficient medical assistance, the governor of remand centre no. IZ-66/1 stated in writing on 16 December 2002 that the applicant did not need in-patient treatment. As the applicant did not suffer from any serious diseases, his wife was not allowed to send him food parcels exceeding 30 kg per month. 63. On the same day the applicant was examined by doctors from the medical department of the Ministry of Justice. They noted in the medical records that the applicant's health was satisfactory and that he was receiving vitamins. The doctors also noted that further examinations in the prison hospital were necessary. 64. On 17 December 2002 a deputy head of the medical department of the Ministry of Justice informed the applicant's wife that the medical department had conducted an inquiry and established that the applicant was receiving sufficient and appropriate treatment for his disease. 65. On 8 January 2003 the applicant's wife complained to the medical department of the Ministry of Justice that the applicant was not receiving any medicine except painkillers. As a result of the insufficient treatment provided, his disease had progressed. 66. On 10 January 2003 a deputy head of the medical department of the Ministry of Justice replied that the applicant's state of health was satisfactory. 67. In April 2003 the applicant underwent an X-ray examination. 68. On 27 May 2003 the applicant was for a second time examined by the rheumatologist Dr L. The applicant complained of persistent pains in his joints. Dr L. noted stiffness and swelling of certain joints and limited movement of the right elbow joint and the left wrist joint. She further observed that her previous recommendations had not been followed and issued the same recommendations and prescriptions as before. She further prescribed local hormone injections once every ten to fourteen days until the inflammation in the joints had lessened. Finally, she recommended that blood and urine tests should be performed every month. 69. On an unspecified date (the date indicated in the medical records is unreadable) the applicant was examined by the remand centre doctor. He complained of weakness, loss of weight and aggravation of the pain in his joints. The doctor noted in the medical records that the applicant refused to take anti-inflammatory pills and insisted that he needed intra-articular injections. The doctor recommended that the applicant be taken to the prison hospital for an examination. 70. From 10 to 17 June and from 6 to 17 October 2003 the applicant underwent an examination and followed treatment in prison hospital IK-2. 71. In reply to further complaints of inadequate treatment lodged by the applicant's wife, the head of the medical department of the Ministry of Justice stated on 8 October 2003 that the applicant's state of health was satisfactory. He noted that the rheumatologist had recommended that the applicant take anti-inflammatory medicines, apply ointments and receive intra-articular injections. The applicant had refused to take the anti-inflammatory medicines prescribed to him. Intra-articular injections were not possible because there were no medical officers in the detention facility trained in administering them. The head of the medical department of the Ministry of Justice concluded that the applicant was receiving adequate and sufficient treatment. 72. On 10 October 2003 Dr K., a rheumatologist from Yekaterinburg Town Clinical Hospital no. 40, examined the applicant's medical records and concluded that he was suffering from rheumatoid arthritis. The report continued as follows: “[Rheumatoid arthritis] is a serious disease causing marked pain in the joints and muscles and restricting the function of the affected joint. It is progressive and incurable. The disease requires constant anti-inflammatory treatment to lessen the pain and inflammation in the joints and muscles. It also requires specific treatment with disease-modifying drugs to slow down the process of destruction of the joints. [The applicant] has not received any disease-modifying drugs. Owing to the destruction of the joint structures and muscle atrophy, this disease leads to disability within 5 to 10 years of its onset, depending on the rate of progression. In cases where other internal organs are affected by the disease (this is possible in the absence of adequate treatment) it may progress more rapidly. The analysis of the submitted materials reveals that at present [the applicant] is affected by an active inflammation process which has resulted in loss of function in the joints. I recommend an examination ... which is necessary in order to prescribe adequate treatment. [The applicant] requires wholesome food rich in protein and vitamins. Damp and cold places are strongly contraindicated.” 73. On an unspecified date the applicant lodged a civil claim against remand centre no. IZ-66/1, complaining about the allegedly insufficient medical assistance afforded to him. 74. On 9 December 2003 the Verkh-Isetskiy District Court of Yekaterinburg noted that the applicant suffered from arthritis. The management of the remand centre had an obligation to organise a medical examination of the applicant in order to determine the gravity of his medical condition. It had however failed to do so. Moreover, given that arthritis was a serious disease requiring a high-calorie diet, it had been unlawful to limit food parcels from relatives to 30 kg per month. However, the court rejected the applicant's claim, finding that it was without substance as he was no longer being held in remand centre no. IZ-66/1. 75. On 9 January 2004 the applicant was granted disability status. 76. The applicant appointed Ms Demeneva, a lawyer with the Urals Centre of Constitutional and International Protection of Human Rights, to represent him before the Supreme Court and the European Court. On 27 November 2002 Ms Demeneva applied to the President of the Sverdlovskiy Regional Court for permission to visit the applicant. On 28 November 2002 her request was refused. No reasons for the refusal were provided. 77. On 5 December 2002 Ms Demeneva for a second time asked the President of the Sverdlovskiy Regional Court to issue her with a visitor's permit. By letter of 11 December 2002 a judge of the Sverdlovskiy Regional Court refused to admit Ms Demeneva as counsel for the applicant. He noted that at that stage of the proceedings the admission of counsel was within the competence of the Supreme Court. 78. In January 2003 Ms Demeneva lodged a new request for a visitor's permit with the President of the Sverdlovskiy Regional Court. The request indicated that Ms Demeneva was the applicant's representative before the Court. It appears that the request was not examined. 79. On 28 April and 14 May 2003 the applicant wrote to the President of the Sverdlovskiy Regional Court, informing him that he wanted to meet Ms Demeneva in order to prepare an application to the European Court of Human Rights. On an unspecified date in July 2003 the Sverdlovskiy Regional Court issued Ms Demeneva with a visitor's permit. 80. On 23, 25 and 30 July 2003 Ms Demeneva came to visit the applicant. However, the management of remand centre no. IZ-66/1 refused to let her in. They did not give any reasons for the refusal. 81. In reply to Ms Demeneva's complaint, the penitentiary department of the Sverdlovskiy Region informed her on 25 August 2003 that she had not been appointed to represent the applicant in the criminal proceedings and that her legal status was unclear. Therefore, she was not allowed to visit the applicant. 82. By letter of 15 September 2003 a deputy President of the Sverdlovskiy Regional Court informed the penitentiary department of the Sverdlovskiy Region that the applicant's conviction had become final and that the visitor's permit issued to Ms Demeneva was no longer valid. 83. On 3 November 2003 the Sverdlovskiy regional prosecutor's office informed Ms Demeneva that she had been denied access to the applicant because she had not produced a judicial decision by which she had been admitted to act as counsel for the applicant. 84. The applicant challenged the refusals before the Verkh-Isetskiy District Court of Yekaterinburg. On 13 November 2003 the Verkh-Isetskiy District Court found that Ms Demeneva had a power of attorney authorising her to represent the applicant's interests before the European Court of Human Rights and possessed a valid visitor's permit issued by a competent court. It ordered the management of detention facility no. IZ-66/1 to organise the applicant's meetings with Ms Demeneva. 85. No meetings were organised. On 24 February 2004 the bailiffs' service discontinued the enforcement proceedings, finding that it was no longer possible to organise the meetings as the applicant had been transferred to a correctional colony. 86. The Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic (Law of 27 October 1960, in force until 1 July 2002 – “the old CCrP”) provided that criminal cases were tried at first instance by a single judge or by a bench consisting of a professional judge and two lay judges. In their judicial capacity lay judges enjoyed the same rights as professional judges (Article 15). 87. By virtue of Article 164 of the RSFSR Constitution of 1978 (in force until 12 December 1993, when the Constitution of the Russian Federation was adopted), lay judges were elected during meetings of citizens at their place of work or residence for a term of five years. 88. Under section 29 of the RSFSR Law of 8 July 1981 on the RSFSR judicial system (“the RSFSR Judicial System Act”) (the relevant provisions remained in force until 10 January 2000, date of the official publication of the Federal Law on lay judges at the federal courts of general jurisdiction in the Russian Federation), lay judges at the regional courts were to be elected by the Regional Congress of People's Deputies for a term of five years. 89. On 12 December 1993 the Constitution of the Russian Federation was adopted. It does not provide for any procedure for the selection of lay judges. 90. Articles 83 and 84 of the Constitution list the powers of the President. They do not mention any power to appoint lay judges or to prolong their term of office. 91. Article 90 provides that the President may issue decrees and orders. Decrees and orders of the President have binding force in the entire territory of the Russian Federation. They may not be contrary to the Constitution or federal laws. 92. Part 2 of the Russian Constitution contains provisions aimed at preserving the continuity of the judiciary and other State bodies during the transitional period. In particular, paragraph 6 establishes that until the adoption of a federal law setting out the procedure for the examination of cases by a jury, the previous procedure for examination of that category of cases by the courts should be preserved. 93. On 22 March 1995 the acting President of Russia issued Decree no. 299, which read as follows: “Relying on Article 90 and paragraph 6 of Part 2 of the Constitution of the Russian Federation, [I] order that: 1. The lay judges at the district (town) courts shall continue their service until the adoption of the relevant federal law. 2. The executive authorities of the constituent elements of the Russian Federation shall, if necessary, organise by-elections of lay judges for the district (town) courts at general staff meetings, general meetings and gatherings of citizens at their places of residence.” 94. On 21 March 1997 the Constitutional Court examined an application by Mr Sh. who submitted, in particular, that the presidential decree was incompatible with the Constitution. The Constitutional Court found that it had no competence to verify the compatibility of presidential decrees with the Constitution at citizens' request. It noted, however, that the procedure for examination of criminal cases by a judicial bench including lay judges was established by the old CCrP and the RSFSR Judicial System Act. Those acts remained in force in accordance with paragraph 6 of Part 2 of the Constitution. It was therefore necessary to preserve the system of lay judges for the time being. 95. On 1 January 1997 Federal Constitutional Law no. 1-FKZ on the judicial system of the Russian Federation (“the Judicial System Act”) entered into force. By virtue of section 1 of the Act judicial authority in the Russian Federation was vested exclusively in courts comprising professional judges, jurors, lay judges and arbitration judges appointed or elected in accordance with the procedure laid down by federal law. 96. Section 8 of the Judicial System Act provided that individuals could participate as jurors, lay judges and arbitration judges in the administration of justice in accordance with the procedure established by federal law. 97. Section 37 established that lay judges elected to serve in the courts before 1 January 1997 should remain in office until the expiry of the term of office for which they had been elected. 98. On 23 January 1997 the President of the Russian Federation issued Decree no. 41, which, in so far as relevant, read as follows: “Having regard to the [fact] that the Federal Constitutional Law on the judicial system of the Russian Federation has come into effect, for the purpose of ensuring the activities of the courts of general jurisdiction in the Russian Federation and for the judicial protection of the rights of individuals, and relying on Article 90 of the Constitution of the Russian Federation, [I] order that: 1. The lay judges at ... regional courts shall continue their service until the adoption of the federal law on the procedure for appointment (election) of lay judges.” 99. On 10 October 2002 the Constitutional Court examined an application by a Mr G., who claimed that the presidential decree was incompatible with the Constitution. The Constitutional Court found that, in accordance with Article 90 of the Constitution, presidential decrees must not be contrary to the Constitution or federal laws. The decree contested by Mr G. prolonged the term of office of lay judges elected earlier. It did not establish any procedure for calling lay judges to sit in particular criminal cases which would differ from the procedure prescribed by federal law. In particular, it did not contain any provisions which would allow lay judges to be called for service on a regular basis and for periods surpassing two weeks per year. The complaint was declared inadmissible. 100. On 10 January 2000 the Federal Law on lay judges at the federal courts of general jurisdiction in the Russian Federation (“the Lay Judges Act”) came into force. Under section 1(2) of the Act, lay judges were persons authorised to sit in civil and criminal cases as non-professional judges. 101. Section 2 provided that lists of lay judges were to be compiled for every district court by local self-government bodies; the lists were subject to confirmation by the regional legislature. The confirmed list was to be submitted to the relevant district court no later than one month before the expiry of the term of office of the lay judges on the previous list. The term of office of lay judges was five years. 102. Section 6 determined the procedure for the selection of lay judges at the regional courts. It provided that the President of the regional court was to draw names at random from the overall list of lay judges assigned to the district courts situated on the territory of that region. The number of lay judges assigned to every professional judge should be at least three times as many as the number needed for a hearing. From the list of lay judges assigned to him the professional judge was to select two lay judges by lot to sit in a particular case. 103. Under the terms of section 9, lay judges could only be called for service in a regional court once a year, for the entire duration of the court proceedings in a particular case. 104. The Presidium of the Supreme Court of the Russian Federation issued on 14 January 2000 a Regulation on the procedure for the selection of lay judges. The Regulation provided that the President of a district court should draw at random from the general list of lay judges 156 names for each judge. The random selection could be made by any method (for example by random computer selection, or by manual selection of each fifth name for one judge, each seventh name for another judge, etc.). The lay judges for a particular case were to be drawn by lot by the judge to whom the case had been assigned. Each court was obliged to keep records of all random selections and drawings by lot. 105. The Regulation further referred to section 37 of the Judicial System Act and section 2 of the lay Judges Act and provided that, given that no lists of lay judges had been compiled by the date of the entry into force of the Lay Judges Act, the acting lay judges should remain in office until the submission of new lists of lay judges to the courts. 106. Under the decree of the acting President of Russia issued on 25 January 2000, lay judges serving in the courts of general jurisdiction were authorised to remain in office until the courts received the new lists of judges confirmed by the regional legislatures. 107. On 21 December 2001 the Constitutional Court examined an application by a Mr P., who submitted, in particular, that the presidential decree was incompatible with the Constitution. The Constitutional Court found that it had no competence to verify the compatibility of presidential decrees with the Constitution at citizens' request. 108. On 1 July 2002 the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001 – “the new CCrP”) entered into force. It abolished the system of lay judges as from 1 January 2004. 109. On 5 August 2002 the President of the Russian Federation issued Decree no. 855, by which, referring to the entry into force of the Lay Judges Act, he declared his Decrees no. 299 of 22 March 1995, no. 41 of 23 January 1997 and no. 103 of 25 January 2000 to be no longer in force. 110. The new CCrP provides that advocates authorised by a bar association are admitted to act as counsel in criminal proceedings. At the defendant's request the judge may admit a close relative or any other person to act as counsel (Article 49). Counsel may visit the suspect or the accused in private and in confidence. The frequency or duration of the visits may not be limited (Articles 47 § 4 (9) and 53 § 1 (1)). 111. Federal Law no. 103-FZ of 15 July 1995 on the detention of persons suspected or accused of criminal offences (“the Detention Act”) provides that a suspect or an accused is entitled to receive visits from his counsel from the moment he or she is arrested. Visits are conducted in private and in confidence. Their duration or frequency may be limited only in those cases established by the Code of Criminal Procedure. Counsel may visit a detainee on presentation of his or her bar certificate and a mandate to represent the accused's interests issued by the bar association (ордер юридической консультации). It is prohibited to require any other documents. If a non-advocate has been admitted to act as counsel, visits are permitted on presentation of the relevant court decision and an identity card (section 18). 112. The Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, provide, in particular, as follows: “10. All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation. 11. In all places where prisoners are required to live or work, (a) The windows shall be large enough to enable the prisoners to read or work by natural light, and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation; (b) Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight. 12. The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner. 13. Adequate bathing and shower installations shall be provided so that every prisoner may be enabled and required to have a bath or shower, at a temperature suitable to the climate, as frequently as necessary for general hygiene according to season and geographical region, but at least once a week in a temperate climate. 14. All pans of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all times. ... 15. Prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness. ... 19. Every prisoner shall, in accordance with local or national standards, be provided with a separate bed, and with separate and sufficient bedding which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness. ... 20. (1) Every prisoner shall be provided by the administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served. (2) Drinking water shall be available to every prisoner whenever he needs it. ... 21. (1) Every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits. ...” 113. The relevant extracts from the General Reports prepared by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) read as follows: “47. A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners. ... [P]risoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature... 48. Specific mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard ... It is also axiomatic that outdoor exercise facilities should be reasonably spacious... 49. Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment.” “35. A prison's health care service should at least be able to provide regular out-patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds). ... Further, prison doctors should be able to call upon the services of specialists. ... Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner. 36. The direct support of a fully-equipped hospital service should be available, in either a civil or prison hospital. ... 37. Whenever prisoners need to be hospitalised or examined by a specialist in a hospital, they should be transported with the promptness and in the manner required by their state of health. 38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly. There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.). 39. A medical file should be compiled for each patient, containing diagnostic information as well as an ongoing record of the patient's evolution and of any special examinations he has undergone. In the event of a transfer, the file should be forwarded to the doctors in the receiving establishment. Further, daily registers should be kept by health care teams, in which particular incidents relating to the patients should be mentioned. Such registers are useful in that they provide an overall view of the health care situation in the prison, at the same time as highlighting specific problems which may arise. 40. The smooth operation of a health care service presupposes that doctors and nursing staff are able to meet regularly and to form a working team under the authority of a senior doctor in charge of the service.” “30. The CPT frequently encounters devices, such as metal shutters, slats, or plates fitted to cell windows, which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation. They are a particularly common feature of establishments holding pre-trial prisoners. The CPT fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners. However, the imposition of measures of this kind should be the exception rather than the rule. This implies that the relevant authorities must examine the case of each prisoner in order to ascertain whether specific security measures are really justified in his/her case. Further, even when such measures are required, they should never involve depriving the prisoners concerned of natural light and fresh air. The latter are basic elements of life which every prisoner is entitled to enjoy; moreover, the absence of these elements generates conditions favourable to the spread of diseases and in particular tuberculosis. The CPT recognises that the delivery of decent living conditions in penitentiary establishments can be very costly and improvements are hampered in many countries by lack of funds. However, removing devices blocking the windows of prisoner accommodation (and fitting, in those exceptional cases where this is necessary, alternative security devices of an appropriate design) should not involve considerable investment and, at the same time, would be of great benefit for all concerned.”
| 1
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train
|
001-101038
|
ENG
|
BGR
|
ADMISSIBILITY
| 2,010
|
FIMIANOV v. BULGARIA
| 4
|
Inadmissible
|
Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva
|
The applicant, Mr Vladimir Antonov Fimianov, is a Bulgarian national who was born in 1940 and lives in Montana. He was represented before the Court by Mr Y. Grozev, a lawyer practising in Sofia. The respondent Government were represented by their Agent, Ms M. Karadjova, of the Ministry of Justice. On 2 September 1996 the applicant's son died while he was completing his military service as a private in the Bulgarian army (the “private”). On 3 September 1996 the private's commanding officer informed the applicant that his son had accidentally electrocuted himself when, together with two other army privates, he had tried to open a transformer in an electrical substation. The private's body was delivered to his family later the same day. While preparing the body for burial his family discovered various wounds, bruises and an alleged cigarette burn. The applicant's son was buried on 4 September 1996. A preliminary investigation was opened into the death of the applicant's son on 2 September 1996. An autopsy was performed on 3 September 1996. The autopsy report contained the following information in respect of the death of the applicant's son: “On 2 September 1996 at around 6 p.m. in the village of Bozhurishte, while [the private was] working with a high voltage transformer and at a moment when he was standing holding a metal rod, he received an electric shock. ... The immediate attempts to resuscitate him were unsuccessful.” The autopsy concluded the following: “The death of the [private] was caused by severe cardiovascular failure resulting from the effects of electricity on the body. This [finding] is supported by the place where the death occurred, the signs on the body of a quick death such as cyanosis of the face; spotted haemorrhaging under the mucous membranes of the eyelids, under the pleurae of the lungs, under the outer coating of the heart and under the mucous membrane of the renal pelvis; significant blood stagnation in the internal organs; swelling of the brain and the lungs; and, in particular, the presence of an electrical burn mark in the area of the right palm.” On 28 November 1996 the Sofia regional military prosecutor's office terminated the preliminary investigation into the death of the applicant's son. It concluded that on 2 September 1996 the private, together with two other army privates, had decided to remove the cover of an electrical transformer at an electrical substation with the aim of stealing copper cables. In the process, the private had used a metal rod to lever the cover open, but when he touched it he had been electrocuted. Based on the findings of the medical report and the testimonies of the two army privates who had witnessed the event, the public prosecutor's office concluded that there was a lack of evidence of an offence and terminated the preliminary investigation. A technical report into the incident had also been commissioned, which reached the following conclusion: “the three [army privates] entered the building of the [electrical] substation without the necessary qualifications and training and were operating there [in an environment of] 20,000 volts [of electricity]”. A letter dated 29 November 1996 was sent to the private's mother informing her of the decision of the public prosecutor's office. On 18 July 2000 the applicant appealed against that decision. He argued that the investigation had been superfluous, its findings inconclusive and that it had failed to satisfactorily address and account for all the bruises and wounds found on the body of his son. On 28 December 2000 the military appellate prosecutor's office quashed the decision of 28 November 1996 and remitted the case for further investigation. As a result, witnesses were once again questioned during January 2001. The results of the additional preliminary investigation were presented to the applicant on 12 February 2001. On 22 February 2001 the preliminary investigation into the death of the applicant's son was once again terminated by the Sofia regional military prosecutor's office, whose decision was upheld by the military appellate prosecutor's office on 6 March 2001. On the next day, 7 March 2001, the Military Court of Appeal, sitting in camera, upheld the above decisions to terminate the preliminary investigation into the death of the applicant's son. The applicant was informed of this in a letter dated 14 March 2001. The letter was sent by registered post on 16 March 2001, but it is unclear when it was received. Subsequently, the applicant petitioned the Chief Public Prosecutor's Office to request the reopening of the preliminary investigation. The petition was dated 2 May 2000 (“02.05.00” in the document), but the applicant himself indicated on the copy he provided to the Court that he had made a mistake in the date. In it the applicant referred to his appeal of 18 July 2000 and argued that the subsequent investigation had also been flawed as it had failed to comply with the instructions given by the higher prosecutor's office. Thus, he asked the Chief Public Prosecutor's Office to quash the decisions of the Sofia regional military prosecutor's office and the military appellate prosecutor's office and to propose the reopening of the preliminary investigation on the basis of the amendments of the Code of Criminal Procedure of 2 May 2000 (“02.05.00” in the document). The applicant filed his petition on an unknown date, but in order to process it the supreme cassation public prosecutor's office requested the case file from the regional military prosecutor's office on 14 May 2001; it was sent on the 16th. On 14 June 2001 the supreme cassation public prosecutor's office rejected the applicant's petition and informed him that preliminary investigations terminated by court decisions were not subject to reopening. On the same day, the supreme cassation public prosecutor's office sent the case file back to the regional military prosecutor's office. The applicant filed a second petition with the Chief Public Prosecutor to request the reopening of the preliminary investigation, dated 25 July 2001. In order to process it, the supreme cassation public prosecutor's office requested the case file from the regional military prosecutor's office on 13 September 2001; it was sent on the 18th. On 9 October 2001 the supreme cassation public prosecutor's office once again rejected the applicant's petition but also informed him that the decisions to terminate the preliminary investigation were correct in so far as there was a lack of evidence of an offence. The relevant provisions of the Criminal Code and of the Code of Criminal Procedure, as well as the practice of the domestic courts, have been summarised in the inadmissibility decision in the case of Nenkov v. Bulgaria (dec.) (no. 24128/02, 7 October 2008).
| 0
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train
|
001-91956
|
ENG
|
MKD
|
ADMISSIBILITY
| 2,009
|
MIRCESKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
| 4
|
Inadmissible
|
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
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The applicant, Mr Orde Mirceski, is a Macedonian national who was born in 1970 and lives in Skopje. He was represented before the Court by Mr Z. Gavriloski, a lawyer practising in Skopje. On 5 February 2004 the applicant applied to the Skopje Court of First Instance seeking dissolution of his marriage to Ms N. due to marital problems. On 29 September 2004 Ms N. gave birth to a daughter. That fact was brought to the applicant's attention on 1 October 2004. At the meeting of 1 November 2004 scheduled before the Social Care Centre for reconciliation of the spouses, the applicant denied that the child was his. He claimed to have been separated from his wife since she left the house (7 January 2004) and not to have been intimate for some months before that date. He confirmed that statement at the next meeting dated 15 November 2004. In the meantime, the applicant was recorded in the birth register as the child's father. In his submissions of 24 February 2005, the applicant reiterated his doubts that he was the child's biological father. In support, he stated that he had not been intimate with Ms N. for over 300 days before the child was born. On 29 March 2005 the Skopje Court of First Instance accepted the applicant's action and declared the marriage dissolved. It also ordered the applicant to pay 25% of his monthly salary as child maintenance. The court addressed the applicant's denial of being the child's biological father and confirmed that he had not still brought an action contesting the paternity, but that he had applied to the Supreme Court requesting a new time-limit to do so. It concluded accordingly that money paid in child maintenance might be recovered by the applicant if he successfully challenged his paternity in separate proceedings, if any. On 7 September 2005 the Skopje Court of Appeal upheld that decision. On 6 December 2005 the public prosecutor informed the applicant that there were no grounds for lodging with the Supreme Court a request for the protection of legality. On 4 February 2005 the applicant requested, under section 68 of the Family Act (see “Relevant domestic law”, below), the Supreme Court to determine a new time-limit to disavow the paternity of the child. He reiterated his earlier observations made in the divorce proceedings and added that on 12 and 17 January 2005 he had undergone two sperm tests, which indicated that it was of poor quality. He further stated that that evidence had not existed within the time-limit set forth in section 67 § 2 of the Family Act (see “Relevant domestic law”, below). That request was communicated to Ms N. for comments. On 23 March 2005 the Supreme Court dismissed the applicant's request as having been based on the sperm tests only. It stated that no diagnosis had been provided that would attest the applicant's infertility. It therefore concluded that there was no indication that the applicant was not the child's father. On 27 May 2005 the applicant made a fresh request to the Supreme Court. He referred to the reconciliation proceedings before the Social Care Centre in which he had contested his paternity. In addition to the earlier sperm tests, the applicant provided three fresh sperm tests made between 22 March and 22 April 2005 and two analyses. The diagnosis indicated in the medical reports of 25 and 26 April 2005 issued by two different medical institutions was “asthenozoospermia” and “sterilitas”. In vitro fertilisation was suggested to the applicant. Ms N. was invited to present her arguments in reply. On 14 September 2005 the Supreme Court dismissed the applicant's request, finding that it was based on the same evidence as his earlier request. It ruled that the medical reports and diagnosis did not sufficiently support the applicant's request. The applicant stated that he was served with this decision on 20 October 2005. According to section 53 of the Family Act (“the Act”, consolidated version of 12 November 2004) a husband is regarded as the father of a child born to his wife during wedlock or within 300 days of a divorce. Under section 67 §§ 1 and 2 of the Act, the husband can contest the paternity of a child born to his wife during wedlock or within 300 days of a divorce. In this connection, an action can be submitted within three months of the day when the husband learned of the child's birth. Section 68 § 1 of the Act provides that the husband can request the Supreme Court to specify a new time-limit for disclaiming of the paternity if new facts or evidence are discovered after the expiration of the time-limit specified in section 67 § 2 of the Act which cast doubts that he is the father of a child born to his wife.
| 0
|
train
|
001-57772
|
ENG
|
ESP
|
CHAMBER
| 1,992
|
CASE OF CASTELLS v. SPAIN
| 2
|
Preliminary objection rejected (non-exhaustion);Violation of Art. 10;Not necessary to examine Art. 14+10;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
|
J.A. Carrillo Salcedo;R. Pekkanen
|
6. Mr Miguel Castells, a Spanish national, resides at San Sebastián (Guipúzcoa), where he is a lawyer. At the material time he was a senator elected on the list of Herri Batasuna, a political grouping supporting independence for the Basque Country. 7. In the week of 4 to 11 June 1979, the weekly magazine "Punto y Hora de Euskalherria" published an article entitled Insultante Impunidad (Outrageous Impunity) and signed by the applicant. The article read as follows: "In a few days, at the San Fermín holiday, a year will have gone by since the murders of Germán Rodríguez atPamplona (Iruna) and of Joseba Barandiarán at San Sebastián(Donosti). The authorities have not identified the perpetrators of these crimes. They have not even acknowledged to which organisations they belong. Nor have they identified the persons who killed, between 12 and15 May 1977, Gregorio Marichalar Ayestarán, aged 63, and Rafael Gómez Jaúregui, aged 78, at Rentería, José Luis Canoat Irun and Manuel Fuentes Mesa at Ortuella; on 14 May,again in 1977, José Luis Aristizábal at San Sebastián, and,at around the same date, in the same town, IsidroSusperregui Aldekoa, over 70 years old; at the beginning ofJune, still in 1977, Javier Núñez Fernández at Bilbao;Francisco Aznar Clemente, Pedro María Martínez Ocio,Romualdo Barroso Chaparro, Juan José Castillo and Bienvenido Pereda Moral, on 3 March 1976 at Gasteiz, and,in the same year, on 7 March at Basauri, Vicente AntónFerrero, on 9 May at Montejurra, Aniano Jiménez and RicardoPellejero, in June Alberto Romero Soliño at Eibar, in September Jesús María Zabala at Fuenterrabía, in November Santiago Navas and José Javier Nuin at Santesteban and on10 July Normi Menchaka at Santurce; José Emilio Fernández Pérez, 16 years old, and Felipe Carro Flores, 15 years old, on 24 July and 25 July 1978, one at Apatomonasterio and the other at Sestao. I only mention the dead ones and the list is far from being exhaustive. These are only examples. Not one, I repeat, not one of the murders, of the interminable list of fascist murders carried out in the Basque Country (Euzkadi), has shown the slightest sign of being cleared up by the authorities. Will the individuals who assassinated Emilia Larrea, Roberto Aramburu, JosemariIturrioz, Agurtzane Arregui, Argala, José Ramon Ansa and Gladys del Estal, the most recent murders, be identified? And when I say most recent I should specify the date -9 June 1979 - because tomorrow there will be others. And there remain the hundreds of cases, for there are hundreds of them, in which people burst in, pistols at the ready, to the bars of the villages and the suburbs (Amorebieta, Durango, Eguía, Loyola, etc.) or simply run through the streets wounding and beating up everyone they come across; the bombs left in popular meeting places(Punto y Hora, Bordatxo, Alay Bar, Santi Bar, Askatasunaetc.) or in cars, attacks whose survivors suffer the consequences for life etc. The perpetrators of these crimes act, continue to work and remain in posts of responsibility, with total impunity. No warrant has been issued for their arrest. The description of the persons who carried out these acts has been neither drawn up or published; nor have there been any lists of suspects in the newspapers, or photokit pictures, and, far less, rewards offered to the public, or arrests, or inspections or searches of their homes. The public's help has not been sought through the media, as has happened in other cases. Indeed it is significant that such help is not even accepted in connection with these crimes. No link has been established, there have been no official communiqués full of explicit accusations and reprobation inthe press, as in other cases. The right-wing, who are in power, have all the means at their disposal (police, courts and prisons) to seek out and punish the perpetrators of so many crimes. But don't worry, the right will not seek itself out. Extreme right-wing organisations? Before Franco's death no one in the Basque Country thought that it was possible to secure the arrest or conviction for "unlawful association" of a single member, and far less one of the leaders, of the "Triple A", of the "Batallón Vasco-Español", of the "Batallón Guezalaga", of the ATE, of the Adolf Hitler commando, of the Francisco Franco commando, ofthe Mussolini commando, of the New Order, of Omega, of the"Movimiento Social Español", of "Acción Nacional Española"or of the "Guerrilleros de Cristo Rey". No one can believe it now either. "ETA" members held as prisoners? Hundreds of them havebeen to prison. Persons suspected of being members of "ETA"? Thousands of them have been detained in police stations. Sympathisers? One could go on with the list forever. Yet not a single leader or member of the Triple A has been bothered. Those responsible for public order and criminal prosecutions are the same today as they were before. And here in the Basque Country nothing has changed as far as impunity and questions of liability are concerned. The period when Ibanez Freire was Director General of the Civil Guard, and Fraga was Minister of the Interior, wasalso a time when there was a great increase in so-called extreme right-wing activities in the Basque Country. The same phenomenon, the same coincidences are recurring now. The increase in the activities of groups free to act asthey will is generally accompanied in the Basque Country byan increase in the strength of the security forces. These commandos, because we have to call them something, seem totally at home in the Basque Country, in the middle of a community completely hostile to them. This is too inexplicable for there not to be an obvious explanation. They have precise information to carry out their attacks, often more detailed than that available to local people. They have substantial files which are kept up to date. They have a considerable supply of weapons and of money. They have unlimited material and resources and operate with complete impunity. Considering the timing of their operations and the conditions in which they are carried out it can be said that they are guaranteed legal immunity in advance. Forbidding people to see this is futile. This is important to the people. In the Basque Country it is more important than all the provisional schemes for self-government, democratic consensus and other meaningless or abstract nonsense, because it is a visible, tangible reality which confronts people on a daily basis. Frankly, I do not believe that the fascist associations which I cited earlier have any independent existence, outside the State apparatus. In other words I do not believe that they actually exist. Despite all these different badges, it is always the same people. Behind these acts there can only be the Government, the party of the Government and their personnel. We know that they are increasingly going to use as a political instrument the ruthless hunting down of Basque dissidents and their physical elimination. If they want to be so lacking in a sense of political vision that's their problem! But for the sake of the next victim from our people, those responsible must be identified right away with maximum publicity." 8. On 3 July 1979 the prosecuting authorities instituted criminal proceedings against Mr Castells for insulting the Government (Article 161 of the Criminal Code; see paragraph 20 below). The court with competence for the investigation procedure, the Supreme Court, requested the Senate to withdraw the applicant's parliamentary immunity, which it did by a majority on 27 May 1981. 9. On 7 July 1981 the Supreme Court charged the applicant with having proffered serious insults against the Government and civil servants (Articles 161 para. 1 and 242 of the Criminal Code). It further ordered his detention on remand, taking into account the sentences laid down for the offences in question (six to twelve years' imprisonment; see paragraph 20 below), but allowed his release on bail in view of his status as a senator and the "lack of alarm" (falta de alarma) caused by the alleged offences. On 28 September 1981 the court varied its previous decision. It allowed the applicant's provisional release subject solely to the obligation to report to the judge at regular intervals. In addition to the circumstances already cited, it stressed that, during his questioning, Mr Castells had shown a co-operative attitude and had declared that his article had been intended merely as a political denunciation and not to insult or threaten the Government or its members. 10. On 12 December 1981 the applicant's defence counsel challenged four of the five members of the relevant division of the Supreme Court. It was submitted that their political convictions and the posts which they had held under the previous political regime disqualified them from hearing a case concerning the freedom of opinion of an individual who, like the applicant, had been a notorious opponent of the regime in question. They relied on Article 54 para. 9 of the Code of Criminal Procedure. After several interlocutory applications, including one which resulted in a decision of the Constitutional Court on 12 July 1982 enjoining the Supreme Court to find the challenge admissible, the latter court, sitting in plenary session, dismissed the challenge on its merits on 11 January 1983. The Supreme Court took the view that although the judges had indeed sat in the Criminal Division of the Supreme Court under the previous political regime and one of them had, from 1966 to 1968, been the presiding judge in the Public Order Court, they had at that time merely applied the legislation in force. On 4 May 1983 the Constitutional Court dismissed an appeal (amparo) which Mr Castells had lodged alleging a violation of Article 24 para. 2 of the Constitution (right to an impartial tribunal). It found that the fact that the judges in question might have political convictions differing from those of the applicant could not be regarded as being of direct or indirect relevance (interés directo o indirecto) to the solution of the dispute within the meaning of Article 54 para. 9 of the Code of Criminal Procedure. 11. In the meantime the investigation of the case had progressed. On 3 February 1982 the public prosecutor had concluded that the facts constituted an offence of proffering serious insults against the Government and demanded a prison sentence of six years and a day. In their memorial (conclusiones provisionales) of 2 April 1982, the defence lawyers contended that the disputed article contained accurate information and did not express the accused's personal opinion, but the views of the general public. They offered to adduce evidence to establish the truth of the information. In particular they suggested that the competent authorities should produce reports on any police inquiries, detentions, prosecutions or other measures undertaken against the members of the extreme right-wing groups responsible for the attacks denounced in the article; as the facts reported were common knowledge they could not be said to be insulting. In addition, the defence lawyers requested that evidence be taken from fifty-two witnesses, including members of the Belgian, Italian, French, English, Irish and Danish parliaments and of the European Parliament, on the matter of parliamentary practice regarding the freedom of political criticism; they argued that the accused had acted in his capacity as an elected representative and in conformity with the obligations attaching thereto. 12. By decision (Auto) of 19 May 1982, the Supreme Court refused to admit the majority of the evidence put forward by the defence, on the ground that it was intended to show the truth of the information disseminated. There were divergences in academic opinion and even in its own case-law as to whether the defence of truth (exceptio veritatis) could be pleaded in respect of insults directed at the State institutions, but the reforms of the Criminal Code then under way clarified the question: those institutions fell outside the scope of that defence and Article 461 of the Criminal Code (see paragraph 21 below) authorised it only where civil servants were involved. The evidence which the defence proposed to adduce was not therefore admissible in the proceedings pending, without prejudice to the possibility available to the accused of instituting criminal proceedings as he considered fit. Mr Castells filed an appeal (recurso de súplica), but on 16 June 1982 the Supreme Court confirmed its decision on the ground that the accuracy of the information was not decisive for a charge of insulting the Government. The applicant then filed an appeal (amparo) in the Constitutional Court, alleging that the rights of the defence had been disregarded. That court dismissed it on 10 November 1982, holding that the question could be resolved only in the light of the proceedings in their entirety and after the decision of the trial court. 13. The Criminal Division of the Supreme Court held a hearing on 27 October 1983 and gave judgment on 31 October. It sentenced the applicant to a term of imprisonment of one year and a day for proffering insults of a less serious kind (menos graves) against the Government; as an accessory penalty he was also disqualified for the same period from holding any public office and exercising a profession and ordered to pay costs. It found in the first place, with regard to the objective element of the offence, that the expressions used in the article were sufficiently strong to damage the reputation of the injured parties and to reveal an attitude of contempt. As far as the subjective element was concerned, it considered that, as a senator, Mr Castells had available to him very obvious means of expression, provided for in the Assembly's rules of procedure, through which to carry out his duties of monitoring and criticising the Government's activities; as he had failed to use these means, he could not claim to have acted on behalf of his electorate. The defence's second argument, based on the aim of political criticism (animus criticandi), did not remove its defamatory purpose (animus injuriandi), but reduced the importance thereof. In the case under examination, the insults proffered with the aim of political criticism had exceeded the permissible limits of such criticism and attacked the Government's honour. It was therefore preferable to apply Article 162 of the Criminal Code, which provided for the offence of proffering less serious insults against the Government, rather than Article 161. On the question of the constitutional right to freedom of expression (Article 20 of the Constitution; see paragraph 19 below) there were limits to that right, in particular in relation to the right to honour and to a private life and the right to control use of one's likeness. Furthermore, the fact that the insult appeared in a press article suggested that it was the fruit of a more complicated intellectual process and a degree of reasoning which made it more clear and precise. Finally, the Supreme Court confirmed its decision of 19 May 1982 regarding the admissibility of the defence of truth. The applicant again indicated in the Supreme Court his intention of filing an appeal (amparo) against the judgment, relying inter alia on Articles 14, 20, 23 and 24 of the Constitution. He lodged his appeal on 22 November 1983. 14. The enforcement of the latter measure was nevertheless stayed by the Constitutional Court on 22 February 1984. 15. In his appeal (amparo) of 22 November 1983, Mr Castells complained that he had not been able to have the Supreme Court's judgment examined by a higher court and of the length of the proceedings. He maintained further that the court had violated the principle of the presumption of innocence by refusing to allow him to adduce evidence. He considered it contrary to the most elementary rules of justice to convict someone - and in this case a senator - for making statements which were accurate and sufficiently important for it to be necessary to bring them to the attention of the community as a matter of urgency and in detail, without having allowed him to establish their truth. He alleged, in addition, a breach of the principle of equality before the law (Article 14 of the Constitution), taken alone or in conjunction with the right to freedom of expression (Article 20), as other persons had published similar articles without encountering difficulties. Furthermore, he claimed that he had been the victim of a violation of his right to formulate political criticism, which he argued was inherent in Article 23 as it applied to him in his capacity as a senator. According to him, that provision, which guarantees the right to participate in public affairs, entitled him to carry out his parliamentary duties of scrutiny through any organ or means generally available. The applicant made a further reference to Article 20 of the Constitution in the summary of his complaints (suplico). 16. In his observations of 22 March 1984, the public prosecutor noted that Article 14 guaranteed equality before the law and not equality outside the law. As regards the complaint based on Article 23, it overlapped with the preceding complaint or was based on a misunderstanding: clearly a member of parliament did not carry out his duties only in the assembly, but outside it he did not enjoy any immunity; although he could, like any citizen, criticise the action of the Government, he should not forget that the freedom of expression had its limits, fixed by the Constitution. For his part, Mr Castells, by a letter of 21 May 1984, again offered to prove the truth of his statements, because that demonstrated "the violation by the contested judgment of the right to `receive and communicate true information by any means of dissemination', referred to in Article 20 of the Constitution". He also mentioned this right in his appeal (recurso de súplica) against the rejection of this offer by the Constitutional Court (20 July 1984) and in his observations of 21 February 1985. 17. The Constitutional Court dismissed the appeal on 10 April 1985. In summarising the applicant's complaints at point 2 of the "As to the Law" part of its judgment, it took together, like the public prosecutor, those relating to Articles 14 and 23, without referring to Article 20: alleged violation of the right to equality before the law, guaranteed under Article 14 taken alone or in conjunction with Article 23, inasmuch as the contested decision restricted the powers of monitoring, scrutiny and criticism of a senator. At point 6 it stated that parliamentary privileges were to be interpreted strictly as otherwise they could become instruments for infringing the rights of others; they lapsed when their holder had acted as a mere citizen, even in his capacity as a politician. At points 9 and 10 it considered the central issue: the right to rely on relevant evidence in presenting the defence case, and in particular to plead the defence of truth in respect of an offence of the type in question. The court noted in this connection: "In order to assess whether evidence which it is sought to adduce is relevant, it is necessary to establish a link between that evidence and the thema decidendi, which must first be determined on the basis of the parties' allegations. Except in the case of facts which are manifest or common knowledge, the court must not intervene in this regard, otherwise it will prejudge the merits, if only in part ... . It is preferable for the courts to avoid [such a preliminary assessment]; it does not however in itself infringe constitutional rights provided that the other defence rights are respected. Even though in the present case the court ought perhaps not to have anticipated its opinion on the defence of truth when assessing the relevance of the evidence, [that irregularity] therefore infringes the constitutional right to use relevant evidence - particularly where as here the decision is taken at a single level of jurisdiction - only if there has been a breach of a substantive right in issue. ... " Article 161 of the Criminal Code had given rise to criticism among academic writers because it restricted the freedom of expression. In any event, it should be read in conjunction with Article 20 which guaranteed that freedom. In this connection it had to be accepted that criminal legislation could constitute an adequate means of regulating the exercise of fundamental rights provided that it respected the essential content of the right in question. The limits of the freedoms of information and of opinion were beyond question to be found in the area of State security, which could be jeopardised by attempts to discredit democratic institutions. In conclusion the question whether the defence of truth was or was not admissible in this field was purely one of statutory interpretation and the specific application of Article 161 in the case under review was a matter falling within the exclusive jurisdiction of the Supreme Court. 18. On 1 April 1986 the Supreme Court ruled that the term of imprisonment had been definitively served. Subsequently, the record of the conviction was annulled in accordance with Article 118 of the Criminal Code. It could therefore no longer be disclosed by investigation of the applicant's criminal record unless the request came from judges or courts in connection with a new criminal inquiry. 19. The relevant articles of the Constitution provide as follows: "All Spanish citizens are equal before the law. Any discrimination based on birth, race, sex, religion, opinion or any other condition or personal or social circumstances shall be prohibited." "1. The right to honour, to a private life and to a family life and the right to control use of one's likeness shall be protected. ..." 1. The following rights shall be recognised and protected: (a) the right freely to express and disseminate thoughts, ideas and opinions by word of mouth, in writing or by any other means of reproduction; ... (d) the right to receive and communicate true information by any means of dissemination. The right to invoke the conscience clause and that of professional confidentiality shall be governed by statute. 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 Title, 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. Citizens shall have the right to participate in public life directly or through their representatives freely elected at periodically held elections by universal suffrage. ..." 20. The Institutional Act 8/1983 of 25 June 1983 reformed the Criminal Code. It provides that the offences of insulting the Government shall be punishable by the following penalties: "The following shall be liable to long-term prison sentences [from six years and a day to twelve years - Article 30 of the Criminal Code]: 1. Those who seriously insult, falsely accuse or threaten ... the Government ...; 2. ..." "When the insult or threat referred to in the preceding Article is not serious, it shall be punishable by a short- term prison sentence [from six months and a day to six years - Article 30 of the Criminal Code]." These provisions appear in a separate chapter of the Criminal Code. The chapter in question is based on the principle of authority (decision of the Supreme Court of 19 May 1982; see paragraph 12 above) and provides for a strengthened protection for the life, freedom and honour of the senior officials of the State. The offence of falsely accusing the Government was not introduced until 1983. 21. Title X of Book II of the Criminal Code defines the offences of proffering insults and making false accusations. The latter consists of accusing a person wrongly of an offence coming within the category of those which have to be prosecuted even without a complaint (Article 453 of the Criminal Code). On the other hand, an insult is any expression or action which discredits a person or exposes him to contempt, in particular by accusing him of an offence of the kind which may be prosecuted only if a complaint is laid (Articles 457 and 458 of the Criminal Code). The practical importance of the distinction is that the defence of truth is admissible for the offence of false accusation (Article 456) but not for the offence of proffering insults, except where the insults are directed against civil servants in respect of acts relating to the performance of their duties (Article 461 of the Criminal Code). By the judgment of 31 October 1983 the Supreme Court specified that the defence of truth could not be pleaded in connection with the offence of insulting one of the senior institutions of the State: in the first place no official as such was concerned and, secondly, the institutions in question enjoyed extra protection in this field under the criminal law (see paragraphs 12 and 13 above).
| 1
|
train
|
001-92217
|
ENG
|
UKR
|
CHAMBER
| 2,009
|
CASE OF PYSATYUK v. UKRAINE
| 4
|
Violation of Article 6 - Right to a fair trial
|
Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva
|
4. The applicant was born in 1954 and lives in the city of Odessa, Ukraine. 5. In 1991 the applicant became a member of the housing cooperative “Verstatobudivelnyk-2” (“the cooperative”) in order to be provided with an apartment in the dwelling house to be constructed by the latter. At the same time he was employed part-time by the cooperative. 6. By decisions made at a general meeting of the members of the cooperative on 19 May 1999, 30 June 1999 and 29 September 1999 the applicant’s membership of the cooperative was cancelled on the grounds that he had failed to pay his contributions on time. Therefore, the applicant was not provided with the apartment to which he believed he was entitled (“the apartment”). Later it was given to another member of the cooperative, Mr S. 7. In October 1999 the applicant instituted proceedings against the cooperative in the Illichevsk District Court of Odessa requesting the court to declare the above decisions null and void. He also claimed compensation for non-pecuniary damage. 8. Later, the applicant lodged additional claims against the Housing Department of the Odessa City Council, the Odessa Privatisation Agency and Mr S., challenging the latter’s right to own the apartment, seeking the removal of Mr S.’s family and claiming property rights over the apartment. The applicant also claimed payment of the salary arrears from the cooperative, and alleged that his contributions entitled him to a larger apartment. 9. In January 2003 the Illichevsk District Court of Odessa was closed down. On an unspecified date the applicant’s case was transmitted from that court to the Malinovsky District Court of Odessa (“the court”). 10. In the period from October 1999 to 20 October 2003 the domestic courts listed some thirty-nine hearings. Six hearings were adjourned due to the failure of the representative of the cooperative to appear or at his request. Two hearings were adjourned since Mr S. failed to appear. The domestic courts took no steps to ensure the defendants’ presence in the court. Three hearings were adjourned due to the applicant’s failure to appear or at his request. Most hearings were scheduled at intervals from several days to two months. 11. On 20 October 2003 the court allowed the applicant’s claims. 12. On 19 February 2004 the Odessa Regional Court of Appeal (“the court of appeal”) quashed the decision and remitted the case for fresh consideration to the court. 13. On 18 July 2005 the court found against the applicant. 14. On 5 October 2005 the court terminated proceedings concerning payment of the salary arrears and the applicant’s claim for a larger apartment since the applicant had failed to comply with procedural requirements prescribed by Ukrainian law. The applicant did not appeal against this ruling. 15. On 13 December 2005 the court of appeal quashed the judgment of 18 July 2005 and remitted the case for fresh consideration to the court. 16. On 11 July 2006 the court dismissed the applicant’s claims. 17. On 25 May 2007 the court of appeal quashed the judgment of 11 July 2005 and partly allowed the applicant’s claims. 18. In the period from 20 October 2003 until 25 May 2007 the court and the court of appeal listed some fifteen hearings. One hearing was adjourned because of the judge’s illness, one due to Mr S’s failure to appear, one at the applicant’s request. Most hearings were scheduled at intervals from several days to two months. No hearings were scheduled by the court between 20 February 2004 and 29 March 2005. 19. The defendants appealed in cassation. On 5 December 2007 the Supreme Court upheld the judgment given by the court of appeal. 20. On 12 August 2008 the judgment of 25 May 2007 was enforced in full. 21. On an unspecified date in 2008 Mr S. instituted new proceedings against the applicant claiming his property rights over a part of the apartment on the ground that he had carried out certain repair works.
| 1
|
train
|
001-76489
|
ENG
|
RUS
|
CHAMBER
| 2,006
|
CASE OF FADIN v. RUSSIA
| 3
|
No violation of Art. 6;No violation of P7-4
|
David Thór Björgvinsson
|
7. The applicant was born in 1954 and lives in Tula. 8. On 7 May 1996 the applicant was arrested on suspicion of the attempted rape of his flatmate. He was subsequently also charged with attempted murder. 9. On 5 August 1996 the Tula Regional Court convicted the applicant of attempted rape and attempted murder (Articles 15, 103 and 117 of the Russian Soviet Federative Socialist Republic (“RSFSR”) Criminal Code). 10. On 31 October 1996, on appeal, the Supreme Court of Russia quashed the conviction and remitted the case for a fresh examination. The Supreme Court instructed the Tula Regional Court to examine certain evidence. 11. On 14 March 1997 the Tula Regional Court ordered a psychiatric expert examination of the applicant. 12. On 5 January 1998 the applicant was diagnosed with schizophrenia. 13. On 24 March 1998 the Tula Regional Court reclassified the charges as attempted rape and attempted murder with aggravating circumstances (Articles 15, 103 and 117 of the RSFSR Criminal Code). It held that, on account of his mental disorder, the applicant was not responsible for the acts he had committed and ordered his compulsory treatment in a psychiatric hospital. The applicant did not appeal. 14. The applicant remained in hospital from 20 April 1998 to 30 January 1999. After being discharged from hospital, he travelled to Belarus. 15. On 20 September 1999 the applicant applied to the Prosecutor-General requesting supervisory review of his criminal case. It appears that it was not his first request for supervisory review. The applicant stated, inter alia: “...I repeat my request to you: 1. That the case ... against me be fully re-examined by a court...”. 16. On 12 November 1999 the Deputy Prosecutor-General lodged an application for supervisory review of the Tula Regional Court’s decision of 24 March 1998. 17. On 7 December 1999 the Supreme Court of Russia quashed the decision of 24 March 1998 under the supervisory-review procedure and remitted the case for a fresh examination. The Supreme Court found that in the trial of 24 March 1998 the Tula Regional Court had failed to comply with the instructions the Supreme Court had given in its decision of 31 October 1996. Furthermore, it had unlawfully held that the applicant had committed more serious acts than those of which he had initially been convicted on 5 August 1996. 18. On an unspecified date the case was set down for a hearing on the merits on 13 July 2000. It appears that the applicant was duly summoned. However, in a telegram addressed to the court he stated that he could not attend the hearing since he had no money to pay for the journey from Belarus to Russia. 19. On 20 July 2000 the Tula Regional Court found the applicant’s failure to appear at the hearing unjustified as he had not appended any evidence of his alleged financial hardship to his telegram. It ordered his arrest. 20. On 26 April 2001 the applicant was arrested in Belarus pursuant to a request of the Russian investigative authorities. He was subsequently extradited to Russia. On 24 August 2001 he was placed in the Tula Remand Prison no. IZ-71/1. 21. On 4 September 2001 the Tula Regional Court ordered a psychiatric expert examination of the applicant. 22. According to the expert report, dated 27 September 2001, an in-patient psychiatric expert examination was required. The examination was ordered on 2 October 2001. 23. On 22 October 2001 a written obligation not to leave his place of residence without permission was imposed on the applicant as a preventive measure. 24. On 28 May 2002 the Tula Regional Court reclassified the charges of attempted rape as charges of disorderly behaviour (Article 213 of the RSFSR Criminal Code) and discontinued the criminal proceedings against the applicant on account of the expiry of the statutory time-limit. It acquitted the applicant of the murder charges. 25. On 2 October 2002 the Supreme Court of Russia upheld the judgment. 26. Section VI, Chapter 30, of the 1960 Code of Criminal Procedure (Уголовно-процессуальный кодекс РСФСР), as applicable at the material time, allowed certain officials to challenge a judgment which had become final and to have the case reviewed on points of law and procedure. The supervisory-review procedure (Articles 371-383) was distinct from proceedings in which a case was reviewed in the light of newly established facts (Articles 384-390). However, similar rules applied to both procedures (Article 388). Article 356 of the Code of Criminal Procedure provided that a judgment took effect and became enforceable from the date on which the appellate court delivered its judgment or, if it was not appealed against, once the time-limit for appealing had expired. “The grounds for quashing or varying a judgment [on supervisory review] are the same as [those for setting aside judgments (which have not become final) on appeal] ...” “The grounds for quashing or varying a judgment on appeal are as follows: (i) prejudicial or incomplete investigation or pre-trial or court examination; (ii) inconsistency between the facts of the case and the conclusions reached by the court; (iii) a grave violation of procedural law; (iv) misapplication of [substantive] law; (v) discrepancy between the sentence and the seriousness of the offence or the convicted person’s personality.” Article 371 of the Code of Criminal Procedure provided that the power to lodge a request for a supervisory review could be exercised by the Procurator-General, the President of the Supreme Court of the Russian Federation or 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 seek the intervention of those officials to apply for such a review. Article 373 of the Code of Criminal Procedure set a limitation period of one year during which an application for a supervisory review that might be detrimental to a convicted person could be submitted by an authorised official. The period ran from the date on which the impugned judgment became enforceable. Under Articles 374, 378 and 380 of the Code of Criminal Procedure, a request for supervisory review was to be considered by the judicial board (the Presidium) of the appropriate court. The court could examine the case on the merits, was not bound by the scope and grounds of the request for supervisory review and was obliged to conduct a full review of the evidence. The Presidium could dismiss or grant the request. If the request was dismissed, the earlier judgment remained operative. If it granted the request, the Presidium could decide to quash the judgment and terminate the criminal proceedings, remit the case for a new investigation, order reconsideration by a court at any instance, uphold a first-instance judgment reversed on appeal, or vary or uphold any of the earlier judgments. Article 380 §§ 2 and 3 provided that the Presidium could, in the same proceedings, reduce a sentence or amend the legal classification of a conviction or sentence to the defendant’s advantage. If it found a sentence or legal classification to be too lenient, it was obliged to remit the case for reconsideration.
| 0
|
train
|
001-58592
|
ENG
|
FRA
|
GRANDCHAMBER
| 1,999
|
CASE OF ZIELINSKI AND PRADAL & GONZALEZ AND OTHERS v. FRANCE
| 1
|
Violation of Art. 6-1 as regards the fairness of the proceedings;Violation of Art. 6-1 as regards the length of the proceedings;Not necessary to examine Art. 13;Damage - financial award;Costs and expenses partial award - Convention proceedings
|
A. Bacquet;Gaukur Jörundsson;Luzius Wildhaber
|
9. Mr Zielinski, Mr Pradal, Ms Gonzalez, Ms Mary, Ms Delaquerrière, Mr Schreiber, Ms Kern, Mr Gontier, Ms Schreiber, Ms Memeteau and Mr Cossuta are French nationals who were born in 1954, 1955, 1956, 1953, 1955, 1948, 1949, 1957, 1950, 1954 and 1957 respectively. They live in the départements of Meurthe-et-Moselle (Mr Zielinski), Moselle (Mr Pradal), Bas-Rhin (Ms Mary) and Haut-Rhin (all the other applicants) and work for social-security bodies in Alsace-Moselle. 10. On 28 March 1953 the representatives of the social-security offices of the Strasbourg region signed an agreement with the regional representatives of the trade unions. Under the agreement, a “special difficulties allowance” (indemnité de difficultés particulières – “IDP”) was introduced for the staff of social-security bodies on the ground that applying the local law of the départements of Haut-Rhin, Bas-Rhin and Moselle was a particularly complicated task. The agreement specified that the allowance was equal to twelve times the value of one salary “point” as laid down in the national agreement covering social-security staff. The Minister of Employment and Social Security approved the agreement in a letter of 2 June 1953. The agreement was accordingly implemented as expected. 11. Following two amendments of 10 June 1963 and 17 April 1974 concerning the method of calculating salaries and the classification of jobs, changes which affected the value of the point, the boards of the socialsecurity bodies reduced the IDP, which was set at the equivalent of six points in 1963 and 3.95 points in 1974, instead of twelve points as provided in the 1953 agreement. Further, the IDP was not taken into account for the purpose of calculating the annual Christmas bonus (treizième mois) payable under the national collective agreement. 12. In 1988, however, several social-security bodies decided to incorporate the IDP into their basis for calculating annual allowances, with five years’ retrospective effect. The Regional Health and Social Affairs Department, the supervising authority for these public bodies, quashed the decisions authorising the transfer of the funds needed to make these payments to staff. 13. Applications were made to five industrial tribunals by 136 staff members of the social-security offices concerned, seeking to have the 1953 agreement implemented strictly and to be paid the corresponding salaries backdated to 1 December 1983 (claims in respect of pay being statutebarred after five years). 14. In judgments of 22 December 1989 and 26 April 1990 (Sarrebourg industrial tribunal, miscellaneous activities division), 20 December 1989 (Sarrebourg industrial tribunal, executive staff division) and 10 April and 12 June 1990 (Forbach industrial tribunal, executive staff division) the officials’ claim for back payment of the IDP on the basis of twelve times the value of the point was dismissed. 15. In judgments of 23 April and 14 May 1990 (Forbach industrial tribunal, miscellaneous activities division) and 19 March 1990 (Sarreguemines industrial tribunal, executive staff division) the Sarreguemines Health Insurance Office (Caisse primaire d’assurance maladie – “CPAM”) was ordered to pay the officials the amounts sought in back payment of the IDP as calculated on the basis of twelve points. 16. In twenty-five judgments of 26 February 1991 concerning 136 officials, the Metz Court of Appeal gave judgment in their favour. The representatives of the State – the prefect of the region and, on the latter’s authority, the Regional Director of Health and Social Affairs – appealed on points of law. 17. On 30 July 1991 the Minister of Social Affairs withdrew the ministerial approval given on 2 June 1953. On 8 July 1992 the Minister of Social Affairs revoked that withdrawal of approval. 18. In three judgments of 22 April 1992 the Court of Cassation quashed in part the twenty-five judgments given by the Metz Court of Appeal on 26 February 1991 in the actions brought by the 136 officials. The court considered that the change of classification in 1963 had resulted in the disappearance of the reference index in the 1953 agreement. It consequently remitted the cases to the court below to determine whether a practice had been established or, if none had been, to determine the value that the reference index would have reached had it been retained. 19. The Court of Cassation directed that the case should be reheard by the Besançon Court of Appeal. 20. The Colmar Court of Appeal, with which appeals concerning the IDP had also been lodged, delivered judgments on 23 September 1993 in which it held, having regard to the terms of the Court of Cassation’s judgments of 22 April 1992, that the reference index had disappeared and that a practice had been established of paying the IDP at 3.95 times the value of the point since the amendment of 17 April 1974. 21. In a judgment of 13 October 1993 the Besançon Court of Appeal, after rehearing the case pursuant to the Court of Cassation’s decision, held that the agreement of 28 March 1953 was lawful, that it had not lapsed and that no other practice had been established. It consequently ordered that the IDP should be calculated on the basis of 6.1055% of the minimum wage, which percentage corresponded to the amount of the IDP as calculated on the basis of twelve points at 1 January 1953. The Besançon Court of Appeal said, in particular: “As the 1953 agreement has not been denounced and the IDP must continue to be paid, the only issue to be resolved, after the partial quashing of the judgments delivered by the Metz Court of Appeal, is the new method of calculating the allowance in 1963, which may be based either on a practice or, failing that, on the determination of the value which the reference index would have reached on each due date of the allowance if that index had been retained. … The unilateral change made in 1963 to the method of calculating the IDP cannot have given rise to a practice which, moreover, would itself have been unilaterally changed in 1974 in breach of the relevant rules. … If the reference index disappears, it is necessary to create a linking index in accordance with the contracting parties’ intention. The method adopted by the social-security offices in 1963 and 1974, whereby the amount of the IDP was regarded as being fixed and was divided by the new value of the point to obtain the number of points necessary for calculating the IDP, disregards the general growth of salaries and has resulted in a progressive erosion of the IDP, as is shown by studies of the progression of the IDP compared with basic pay which the plaintiffs adduced in evidence. In order for the common intention of the parties to be carried out, the allowance must be the same for officials in the three départements, irrespective of their category, and the benefits acquired by employees must be retained. A comparison of the IDP with the minimum wage is revealing. … In January 1990, for instance, the IDP as calculated on the basis of 3.95 points, the point having a value of FRF 38.652, amounted to FRF 152.67, whereas if it had been calculated on the basis of 6.1055% of the statutory minimum wage (SMPG), which was then set at FRF 5,596, the IDP would have been FRF 341.66. …” 22. The Court of Appeal accordingly ordered a fresh hearing to enable the plaintiffs to calculate the amounts of back pay to which they were individually entitled. 23. During the passage through Parliament of a bill on public health and social welfare, which began on 26 October 1993, the government took the initiative of tabling an amendment. The debates on that amendment, which became section 85 of the eventual Act, took place mainly on 30 November 1993 in the National Assembly and 13 December 1993 in the Senate. Clause 85 of the bill was adopted. 24. Section 85 of the Act provided that, subject to any court judgment to the contrary that had become final on the merits, the amount of the IDP introduced by the agreement of 28 March 1953 for staff of the socialsecurity bodies administering the general social-security scheme and their dependent institutions in the départements of Bas-Rhin, Haut-Rhin and Moselle would, with effect from 1 December 1983, be set at 3.95 times the value of the point as determined under the pay agreements and paid twelve times a year, notwithstanding any provisions to the contrary in collective or individual agreements that were in force on the date of commencement of section 85. 25. An application was made to the Constitutional Council by a number of members of parliament who considered, in particular, that section 85 of the Act contravened the principle of the separation of powers in that it represented an interference by the legislature with pending court proceedings and that, further, the section in issue, which related to employment law, was unconnected with the purpose of the Act. 26. In a decision of 13 January 1994 the Constitutional Council held that the legislative provisions complained of were not unconstitutional, on the following grounds: “In setting the amount of the ‘special difficulties’ allowance at 3.95 times the value of the point as determined by applying pay agreements of 8 February 1957, with retrospective effect from 1 December 1983, the legislature intended to stop further conflicting decisions being given by the courts and thereby prevent fresh disputes arising whose outcome might adversely affect the financial stability of the social-security schemes in issue. The legislature expressly preserved the position of persons who had obtained a court decision that had become final on the merits. There is nothing in the Act to warrant the inference that the legislature departed from the principle that criminal provisions must not have retrospective effect. The legislature was entitled, subject to compliance with the aforementioned principles, to make use, as it alone could do in the circumstances, of its power to make retrospective provisions in order to resolve, in the general interest, situations that had arisen from the conflicting court decisions mentioned above. That being so, the impugned provisions are not contrary to any rule, nor do they offend any constitutional principle. …” 27. Section 85 of the Act (Law no. 94-43) was consequently held to be constitutional. The Act was promulgated on 18 January 1994. 28. On 15 February 1995 the Court of Cassation, ruling on the appeal brought by the Sarreguemines CPAM, the prefect of the Lorraine region and the Alsace Regional Director of Health and Social Affairs against the Besançon Court of Appeal’s judgment of 13 October 1993, quashed that judgment in part, without ordering a rehearing by another court of appeal, in the following terms: “... However, section 85 of the Act of 18 January 1994 sets the amount of the IDP, for each payment period, at 3.95 times the value of the point resulting from the application of the pay agreements concluded in accordance with the national collective agreement of 8 February 1957 covering the staff of social-security bodies. In that the judgment under appeal adopts a different method of calculation from the one laid down in the aforementioned provision, it must be quashed. In accordance with Article 627, second paragraph, of the New Code of Civil Procedure, the case should be disposed of by applying the appropriate rule of law. For these reasons …: Quashes the judgment delivered on 13 October 1993 by the Besançon Court of Appeal but only in so far as that court held that the IDP should be calculated on the basis of 6.1055% of the statutory minimum wage; Holds that it is unnecessary to order a rehearing of the case; Holds that the amount of the IDP must be set, for each payment period, at 3.95 times the value of the point as determined by applying the pay agreements concluded in accordance with the national collective employment agreement of 8 February 1957 covering the staff of social-security bodies; …” 29. In a judgment of 2 March 1995 the Court of Cassation likewise dismissed, in similar terms, the appeals on points of law brought against the Colmar Court of Appeal’s judgments of 23 September 1993. 30. On 15 and 17 April 1991 Mr Zielinski and forty-seven other officials, represented by an officer from the French Democratic Labour Confederation (Confédération française démocratique du travail – “CFDT”) likewise applied to the industrial tribunal seeking payment of arrears of the IDP (assessed at FRF 31,131.11 for the applicant) and an order that this allowance should in future be calculated on the basis of twelve points as provided in the 1953 agreement. 31. Before the Metz industrial tribunal the prefect of the region and the Director of Health and Social Affairs challenged the officials’ arguments and sought to have the proceedings stayed pending the Court of Cassation’s ruling on the appeals in the identical cases that had given rise to the Metz Court of Appeal’s twenty-five judgments of 26 February 1991. 32. On 28 June and 12 July 1991 the second applicant and forty-eight other officials, represented by the CFDT officer, lodged identical claims with the Metz industrial tribunal. 33. In judgments of 4 December 1991 (Mr Zielinski) and 21 October 1992 (Mr Pradal) the Metz industrial tribunal awarded the plaintiffs back payment of the allowance and found that the IDP should be calculated on the basis of twelve monthly points, in accordance with the 1953 agreement. It held, inter alia: “The agreement lays down that this allowance is equal to twelve times the value of the point, set by the national agreement covering the staff of social-security bodies. In the wake of changes made to the latter agreement in amendments of 10 June 1963 and 17 April 1974 concerning the method of calculating salaries and the classification of jobs and the effects of those changes on the value of the point, the boards of the bodies that signed the 1953 agreement decided to keep the IDP at a constant value by means of adjustments. It is established that those adjustments had the effect of reducing the IDP to the equivalent of six and then 3.95 points. The terms of the 1953 agreement are precise and the basis of twelve points could not be changed unilaterally. The social-security bodies should have denounced the agreement if they considered that the adjustments made in 1963 and 1974 resulted in an excessive burden. Such a change must be disregarded unless the parties agreed it in advance, and the silence of the other signatories to the agreement cannot be regarded as signifying their approval (Article L. 143-4 of the Labour Code) ...” (wording of the judgment of 4 December 1991) 34. Acting on the authority of the prefect of the region, the Director of Health and Social Affairs appealed against those judgments. 35. In judgments of 19 April (Mr Pradal) and 20 April (Mr Zielinski) 1993 the Metz Court of Appeal upheld the industrial tribunal’s judgments, holding that the allowance had been changed unilaterally in breach of the Collective Agreements Act of 1950, on the following grounds in particular: “In the final analysis, the calculation of this allowance must be based on the value of the point as determined under the amendments of 10 June 1963 and 17 April 1974 and those in force on each occasion when the allowance becomes payable. By Article 1134 of the Civil Code, lawfully concluded agreements are legally binding on those who have made them. They can only be revoked by common consent or on grounds permitted by law. Similarly, by Article 135-1 of the Labour Code, collective employment agreements are binding on all those who have signed them. … There is no escaping the fact that the agreement of 28 March 1953 has not been denounced by any of the parties. It must consequently continue to be implemented and the two reductions in the multiplier were imposed in breach of both Article 1134 of the Civil Code and the provisions governing collective employment agreements. The allowance must consequently be paid on the basis of twelve points, as provided in the aforesaid agreement. …” 36. On 2 March 1995 the Court of Cassation gave judgment as follows on the appeal brought by the prefect and the Director of Health and Social Affairs against the Metz Court of Appeal’s judgments of 19 and 20 April 1993 (in respect of Mr Zielinski and Mr Pradal) and also against two other judgments, of 21 April and 6 September 1993, 150 officials being concerned in all. “As to the application of section 85 of the Act of 18 January 1994 (Law no. 94-43) on public health and social welfare: … Section 85 of the Act of 18 January 1994 (Law no. 94-43), however, which is applicable to pending proceedings, including those pending before the Court of Cassation, is intended, in the absence of agreement between the parties, to remedy the disappearance of a reference index and thus enable the amount of an allowance to be calculated. This legislative provision, on whose application the parties were able to present argument, does not amount to an intervention by the State in proceedings between it and private individuals. It does not call in question final court decisions and has been declared to be constitutional by the Constitutional Council. It follows that the provision is not contrary to Article 6 § 1 or Article 13 of the European Convention on Human Rights and Fundamental Freedoms. As to the ground, raised of the Court’s own motion, notice having been given to the parties: Having regard to section 85 of the Act of 18 January 1994 (Law no. 94-43) on public health and social welfare, In reaching its decision that the amount of the so-called special difficulties allowance must be calculated on the basis of twelve points as provided in the agreement of 28 March 1953 and that the value of the point must be that adopted for the calculation of pay in the collective agreements in force, the Court of Appeal held that there was no contractual provision which made the retention of the chosen index conditional upon retention of the classification in force at the time of the agreement and that to decide the contrary would be to add to the terms of the agreement, which were perfectly clear and precise, and to alter its nature. It added that the agreement in dispute did not exclude taking into account changes in the value of the point that resulted from the grading reorganisation and that accordingly the value of the point as determined under the amendments of 10 June 1963 and 17 April 1974 had to be adopted for calculating the IDP. It noted, further, that the new methods of calculating the IDP that had been adopted following the classification changes in 1963 and 1974 had not been agreed on by all the signatories to the agreement of 28 March 1953 and that as the agreed index remained applicable, it was unnecessary to determine whether an alternative practice existed. Lastly, it noted that the agreement of 28 March 1953 was a collective agreement which could be called in question only if it were revised or denounced, which it had not been. Section 85 of the Act of 18 January 1994 (Law no. 94-43), however, lays down the amount of the so-called special difficulties allowance, for each payment period, at 3.95 times the value of the point as determined by applying the pay agreements concluded in accordance with the national collective agreement of 8 February 1957 covering the staff of social-security bodies. In so far as they adopt a method of calculating the amount of this allowance that differs from the one laid down in the aforementioned enactment, the judgments under appeal must be quashed. In accordance with Article 627, second paragraph, of the New Code of Civil Procedure, the case should be disposed of by applying the appropriate rule of law. For these reasons: Quashes the judgments delivered in these cases on 19, 20 and 21 April and 6 September 1993 by the Metz Court of Appeal but only in so far as that court held that the amount of the so-called special difficulties allowance must be calculated on the basis of twelve points, the value of the point being that adopted for the calculation of pay in the collective agreements currently in force; Holds that it is unnecessary to order a rehearing of the cases; Holds that the amount of the IDP must be set, for each payment period, at 3.95 times the value of the point as determined by applying the pay agreements concluded in accordance with the national collective employment agreement of 8 February 1957 covering the staff of social-security bodies; ...” 37. On 17 August 1990 (Ms Gonzalez, Ms Mary, Ms Delaquerrière, Mr Schreiber, Ms Kern, Mr Gontier, Ms Schreiber and Mr Cossuta) and 28 August 1990 (Ms Memeteau) the applicants applied to the industrial tribunal on the basis of the 1953 agreement seeking payment of arrears of the IDP and calculation of that allowance on the basis of twelve points in future. No compromise having been reached at the conciliation hearing on 18 December 1990, the case was referred to the adjudication panel on 9 April 1991. 38. In nine judgments of 2 July 1991 the Colmar industrial tribunal allowed the applications on the following grounds: “... The agreement signed on 28 March 1953 ... introducing the special difficulties allowance (IDP) of twelve points is still in force and has acquired the force of law. On 2 June 1953 the Ministry gave its approval to the agreement. Following changes to the classification of the staff of social-security bodies in 1963 and 1974, this allowance was reduced by decision of the Common Interests and Coordination Department of the Social Security Offices. This department, an advisory body which was not a signatory to the 1953 agreement, took that unilateral decision and had it approved by the social-security regional head office and the boards of the local offices. Those changes are consequently not binding [on the plaintiffs], especially as in the letter of 11 February 1989 the Ministry of Solidarity, Health and Social Welfare stated that the agreement must be fully implemented. Apart from the changes in the value of the point that were made unilaterally, no subsequent changes were made to the 1953 agreement by the signatory parties. Clause 63 of the national collective agreement – schedule 7 – provides: ‘This agreement cannot in any circumstances constitute a ground for reducing benefits acquired by staff at the date of signature.’ The 1953 agreement consequently remains applicable in its entirety. ...” 39. The Colmar CPAM and the prefect of the Alsace region, who was represented by the Alsace Regional Director of Health and Social Affairs, appealed against those judgments on 10 September 1991. 40. On 12 July 1994 the Colmar Court of Appeal set the case down for hearing on 18 October 1994. On 30 September 1994, after the appellants had filed submissions in which they relied on the Act of 18 January 1994, the applicants lodged their pleadings in reply. 41. In nine decisions of 18 May 1995 the Colmar Court of Appeal gave judgment against the applicants on the ground that: “... pursuant to [section 85 of the Act of 18 January 1994 (Law no. 94-43)], the judgment appealed against must be set aside, as the claim covers a period after 1 December 1983. ...” 42. On 13 and 17 July 1995 the applicants appealed on points of law to the Court of Cassation. They filed their full pleadings on 13 October 1995 and a supplementary pleading on 10 February 1996. Pleadings in reply were filed on 22 December 1995. The reporting judge, who was appointed on 1 February 1996, submitted his report on 16 February 1996. 43. In a judgment of 18 June 1996, after a hearing on 6 May 1996, the Court of Cassation declared the applicants’ appeals inadmissible as follows: “... in matters in respect of which the parties are not required to be represented by a member of the Conseil d’Etat and Court of Cassation Bar the appeal on points of law and subsequent procedural steps must be made, taken, handed over or sent by the party himself or by any representative with special authority to act. The notices of appeal submitted by the parties do not contain even a summary statement of the grounds of appeal, and the pleadings that do contain such a statement, which were dispatched within the three-month period laid down in Article 983 of the New Code of Civil Procedure, were all drawn up by a representative who produced no special authority to act. The appeals are accordingly inadmissible. ...” 44. The national, regional and local health-insurance offices have a public-service mission (Constitutional Council decision no. 82-148 DC of 14 December 1982), and this explains both why they are vested with special governmental powers and why they come under the supervision of the minister responsible for social security. They manage the compulsory social-security scheme, with a budget of their own distinct from that of the State. The minister in charge of social security is responsible for overseeing them, a task in which he is assisted by departments of his ministry, namely a central department and regional departments of health and social affairs, together with a national inspectorate of social affairs. The minister is also represented by the prefects of the départements or regions in their capacity as persons exercising State authority and as delegates of the government, the direct representatives of the Prime Minister and each of the other ministers. The power of supervision is exercised firstly over persons, it being possible, on certain grounds, to dissolve or suspend the entire board of a social-security office, dismiss or require the resignation of certain members of such a board, and give or withhold consent to the appointment of managerial staff, as well as draw up lists of suitable candidates. The power of supervision also extends to decisions, the regional ministerial departments having the power to quash or suspend, on certain grounds, decisions of boards or directors of local social-security bodies and also to oppose decisions of national bodies. Certain special decisions of socialsecurity offices are also subject to an approval procedure, namely constitutional and procedural rules and collective agreements laying down staff regulations and the rules governing retirement. Lastly, social-security bodies are under the supervision of the Minister for Economic Affairs and Finances, being subject to monitoring by regional Treasury officials and the Court of Audit and also to audits by the national Inspectorate of Public Finances. 45. The relevant section of the Act reads as follows: “Subject to any court decisions to the contrary that have become final on the merits, the amount of the so-called special difficulties allowance introduced by the agreement of 28 March 1953 for staff of the social-security bodies administering the general social-security scheme and their dependent institutions in the départements of BasRhin, Haut-Rhin and Moselle shall, with effect from 1 December 1983 and for each payment period, be set at 3.95 times the value of the point as determined by applying the pay agreements concluded in accordance with the national collective employment agreement of 8 February 1957 covering the staff of social-security bodies, notwithstanding any provisions to the contrary in collective or individual agreements in force on the date of publication of this Act. It shall be paid twelve times a year. With effect from the same period, the annual Christmas bonus shall be increased so as to reflect the amount of the so-called special difficulties allowance awarded in respect of the month of December.”
| 1
|
train
|
001-82656
|
ENG
|
RUS
|
CHAMBER
| 2,007
|
CASE OF KRASYUCHENKO v. RUSSIA
| 4
|
Violation of Art. 6;Violation of P1-1
|
Christos Rozakis
|
4. The applicant was born in 1924 and lives in Voronezh. 5. The applicant sued the local social welfare authority (Комитет по социальной защите населения администрации Советского района г. Воронежа) claiming readjustment of her old-age pension. On 23 February 2001 the Sovetskiy District Court of Voronezh granted her claim and awarded her 2,562.44 Russian roubles. No appeal was brought against the judgment, and it became final and enforceable ten days later. 6. On 5 March 2001 the bailiff initiated enforcement proceedings. 7. On 26 July 2001 the bailiff terminated the proceedings because the defendant had not had sufficient funds to pay the judgment debt. 8. On 2 December 2005 the monies due to the applicant were transferred into her bank account.
| 1
|
train
|
001-68580
|
ENG
|
MDA
|
CHAMBER
| 2,005
|
CASE OF ROSCA v. MOLDOVA
| 3
|
Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
|
Nicolas Bratza
|
7. The applicant, Mr Ion Roşca, is a Moldovan national who was born in 1943 and lives in Chişinău. He was a shareholder in a private bank. 8. In 1999 he had a disagreement with the bank as to the redemption of two thousand shares and consequently he brought an action against the bank, seeking compensation of 163,422 Moldovan Lei (MDL). 9. On 21 September 2000 the Râşcani District Court found in favour of the applicant and awarded him MDL 20,000. Both the applicant and the bank appealed against that judgment. 10. On 14 February 2001 the Chişinău Regional Court dismissed the applicant’s appeal but upheld the bank’s appeal. By its judgment it rejected the applicant’s claim. The applicant lodged an appeal in cassation. 11. On 17 April 2001 the Court of Appeal upheld the appeal in cassation and by its judgment ordered the bank to pay the applicant MDL 102,653 (the equivalent of 8,959 euros (EUR) at the time). The judgment became final and enforceable on the same date. 12. In June 2001 the Prosecutor General’s Office filed a request for annulment of the judgment of the Court of Appeal of 17 April 2001, and asked the Supreme Court of Justice to uphold the judgment of the Chişinău Regional Court of 14 February 2001. 13. On 11 July 2001 the Supreme Court of Justice upheld the Prosecutor General’s request for annulment and quashed the final judgment of the Court of Appeal of 17 April 2001. The judgment of the Chişinău Regional Court of 14 February 2001 became final. 14. On 22 October 2004, following a request by the Government Agent, the Prosecutor General’s Office applied to the Supreme Court of Justice for the revision of its judgment of 11 July 2001. The application was based on Article 449 (j) of the Code of Civil Procedure (see paragraph 17 below). 15. On 15 December 2004, by a final decision, the Supreme Court of Justice admitted the Prosecutor General’s revision application and quashed its judgment of 11 July 2001. It found the Prosecutor General’s request justified since inter alia the quashing of the final judgment of the Court of Appeal of 17 April 2001 constituted a breach of the principle of legal certainty and consequently was in breach of Article 6 § 1 of the Convention. The judgment of 17 April 2001 became final again. 16. The old Code of Civil Procedure of 1964, repealed on 12 June 2003 Upon request from a party to the proceedings, the Prosecutor General and his deputies can file a request for annulment with the Supreme Court of Justice against any final decision of the domestic courts. The request for annulment can be filed in the following cases: - when the final judgment lacks a legal basis or has been delivered in breach of the law or the law was wrongly applied; - when the issuing court has exceeded its jurisdiction; - when offences has been committed by judges in connection with the final decision. There is no time limit for filing a request for annulment. The request for annulment has to be made in written form and has to contain the reasons provided for in Article 333. The request for annulment has to be filed in as many copies as there are participants to the proceedings. The Prosecutor General or his deputies can withdraw the request for annulment at any time before the closure of pleadings in the case, by prior notice, stating the reasons for the withdrawal. In such a case, the parties to the proceedings may request the continuation of the proceedings. The proceedings related to the request for annulment shall be governed by the rules set forth in Chapter 35 of the Code of Civil Procedure. The presence of the Prosecutor General at the proceedings is compulsory. 17. The new Code of Civil Procedure, entered into force on 12 June 2003 Grounds for revision. The revision may be requested: j) When the European Court of Human Rights has started a procedure of friendly settlement in a case where the Government of the Republic of Moldova is a Party, and the Government consider that by a final decision of a court a fundamental right guaranteed by the Constitution of the Republic of Moldova or by the European Convention for the Protection of Human Rights and Fundamental Principles has been breached.
| 1
|
train
|
001-95203
|
ENG
|
TUR
|
CHAMBER
| 2,009
|
CASE OF BALLIKTAŞ v. TURKEY
| 4
|
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;Nona Tsotsoria;Vladimiro Zagrebelsky
|
5. The applicant was born in 1978 and lives in Ankara. 6. On 6 March 2000 the applicant was arrested by the gendarmerie in the border city of Edirne on her return from Bulgaria. She was detained in a gendarmerie station. According to an arrest report prepared by the gendarmerie the same day, the applicant was informed of her right to be represented by a lawyer and to inform her family about her arrest. Nevertheless, it was also stated in the same document that, if the offence in respect of which she was arrested fell within the jurisdiction of State Security Courts, she could consult a lawyer only if her detention period was extended by a judge or if a judge ordered her detention in a prison. The applicant signed the report and wrote on it that she had “no requests”. 7. The applicant was interrogated during her detention at the gendarmerie station, and an eight-page statement was taken from her between 7 and 9 March 2000. In her statement the applicant admitted to having engaged in activities on behalf of the PKK. 8. On 9 March 2000 the applicant was examined by a doctor at the Edirne branch of the Forensic Medicine Directorate. According to the medical report drawn up the same day, there were “no injuries or signs of ill-treatment on her body”. 9. The same day she was brought before the prosecutor and then before the Edirne Magistrates' Court, which ordered her pre-trial detention in prison. In two statements made during meetings with the prosecutor and the judge the applicant admitted to being a member of the PKK. 10. According to the three statements referred to above, the applicant did not want to be represented by a lawyer during the questioning. 11. On 3 April 2000 the prosecutor at the Istanbul State Security Court filed an indictment against the applicant with that court for the offence of membership of an illegal organisation, namely the PKK. The prosecutor, referring to the above-mentioned statements made by the applicant, alleged that the applicant had left Turkey in 1996 and had been taken to the PKK's training camp in Lavrion, Greece, where she had received training. Following her training she had obtained a false German passport in order to enter the Netherlands. During her time in Europe she had engaged in activities on behalf of the PKK in Germany and the Netherlands. 12. Criminal proceedings against the applicant commenced before the Istanbul State Security Court (hereafter “the trial court”). During the proceedings the applicant was represented by a lawyer. 13. During the first hearing, which was held on 22 June 2000, the applicant rejected the allegations against her and alleged that, before she was brought before the prosecutor and the judge on 9 March 2000, she had been told by the gendarmes that if she did not accept the accusations before the judge and the prosecutor she would be taken back to the gendarmerie station and tortured again. That had been the reason she had accepted the accusations before the prosecutor and the judge. When asked by the trial court what she had to say about the medical report of 9 March 2000 in which it was stated that her body bore no signs of ill-treatment, the applicant replied that the medical report had been prepared before she was beaten up by gendarme officers and threatened with rape. She also alleged that she had been stripped naked by the gendarmes during her detention. The applicant further informed the trial court that the gendarmes had not asked her whether she wanted to be represented by a lawyer during the questioning. 14. During the second hearing, which was held on 29 August 2000, the applicant submitted a handwritten letter to the trial court. In the letter she alleged, in particular, that while she was being detained in the gendarmerie station she had been insulted by gendarme officers, blindfolded, beaten up and drenched with water. Before being questioned she had been undressed and “they” had touched various parts of her body. Threats of rape and death, directed at her and her mother, had also been made. 15. The lawyer representing the applicant told the trial court that his client's questioning had been in breach of the applicable procedure and legislation and, as such, the statements taken from her constituted unlawfully obtained evidence which was not admissible in a court of law. Other than the statements taken from his client by the gendarmerie and then by the prosecutor and the judge on 9 March 2000, there was no evidence against her. The lawyer drew the trial court's attention to a Court of Cassation decision according to which confessions not supported by further evidence were not admissible as evidence. 16. The lawyer further asked the trial court to hear a “cassette of the questioning” of the applicant which had apparently been mentioned in a document drawn up by the gendarmerie. This request was rejected by the trial court which noted that the cassette was not in its possession. 17. The lawyer also pointed out that there was no mention of his client's name in the statements taken from E.Ş. who, according to the indictment, had helped his client to go to Greece. 18. On 9 October 2001 the applicant was found guilty as charged and sentenced to twelve years and six months' imprisonment. In convicting the applicant the trial court had regard to the statements taken from her at the gendarmerie station and then by the prosecutor and the judge on 9 March 2000, as well as to the statements made by E.Ş. in the course of his trial in 1998. 19. The applicant appealed against her conviction and argued, in particular, that the decision of the trial court had not been adequately reasoned. In the grounds of appeal the applicant's lawyer also repeated his earlier defence submissions concerning the allegedly unlawful nature of the evidence used in convicting his client, and referred to various Articles of the Convention. 20. On 8 July 2002 the Court of Cassation upheld the applicant's conviction. 21. At the time notice of the application was given to the respondent Government, the Government were requested to submit to the Court a copy of the “cassette of questioning” referred to above (see paragraph 16 above). It appears from the documents submitted to the Court by the applicant that the Ministry of Foreign Affairs requested the Ministry of Justice to obtain the cassette so that it could be submitted to the Court. The gendarmerie, who were requested by the domestic judicial authorities to produce the cassette, stated in their letter of 21 May 2008 that they had “no records of the cassette being handed over to the Edirne prosecutor”.
| 1
|
train
|
001-61834
|
ENG
|
CYP
|
CHAMBER
| 2,004
|
CASE OF AZIZ v. CYPRUS
| 1
|
Violation of P1-3;Violation of Art. 14+P1-3;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award
|
Jean-Paul Costa
|
9. The applicant was born in 1938 and lives in Nicosia. 10. On 30 January 2001 the applicant applied to the Ministry of the Interior, requesting to be registered on the electoral roll in order to exercise his voting rights in the parliamentary election of 27 May 2001. 11. On 8 February 2001 the Ministry of the Interior refused to enrol the applicant. The Ministry specified that, by virtue of Article 63 of the Constitution, members of the Turkish-Cypriot community could not be registered on the Greek-Cypriot electoral roll. Furthermore, the Ministry informed the applicant that the matter was under consideration by the Attorney-General of the Republic and that he would be informed of any developments. 12. On 27 April 2001 the applicant lodged an application with the Supreme Court against the decision of the Ministry of the Interior. He relied on Article 3 of Protocol No. 1 and submitted that, following the dissolution of the Communal Chambers, the Cypriot government had failed to set up two electoral lists in order to protect the electoral rights of members of both communities. 13. On 23 May 2001 the Supreme Court dismissed the application on the following grounds: “... The right to vote is directly linked to the communal checks and balances which provide for the compilation of separate electoral lists and for separate elections of the representatives of each community. The ideal of democracy – one person, one vote in the person's place of residence – does not provide any grounds for the Court to assume the power to reform the Constitution. Such competence is not vested in us, nor can the judicial authorities claim such power. This would be against the principle of the separation of powers on which the Constitution is based ... Article 63 is contained in Part IV of the Constitution, which governs the matters pertaining to the House of Representatives and provides for the compilation of separate electoral lists in which the members of each community are included. The applicant belongs to the Turkish community and is one of the small number of Turkish Cypriots residing in the part of the territory of Cyprus under the control of the Republic of Cyprus. The denunciation by the applicant of the Turkish invasion and his loyalty to the law do not alter what the Constitution provides with respect to the election of the members of the legislative body. Article 5 of the [Election of Members of the House of Representatives] Law makes the right to vote conditional on the provisions of Article 63 of the Constitution. The applicant admits, as it transpires from his counsel's address, that the proviso to which the right to vote is subject under Article 5, if construed literally, excludes the inclusion in the electoral list of any person other than members of the Greek community in Cyprus. Nevertheless, he suggested that this reservation must be interpreted in the light of the current situation in Cyprus, which renders the compilation of an electoral list of the members of the Turkish community impossible. Given this fact, it had to be surmised that when the House of Representatives enacted Article 5 of the Law it had this situation in mind and the impossibility of compiling an electoral list of the members of the Turkish community. Hence, this justified the interpretation of the reservation contained in Article 5 as referring only to those provisions of Article 63 of the Constitution which were rendered inactive. Adopting the interpretation of Article 5 proposed by the applicant would amount to it being reworded. The fact that the legislator was apprised of all the facts relating to the situation in Cyprus and chose to place the right safeguarded by Article 5 under the reservation of Article 63, supports the opposite of what the applicant is suggesting; it indicates an intention by the legislature to subject the compilation of the electoral list to the statutory provisions of Article 63. From the wording of Article 5 we conclude that the legislature's intention was to place the right to vote under the reservation of all provisions of Article 63. This conclusion refutes the allegation of the illegality of the administrative decision under appeal. The second ground on which the applicant's appeal is based is the law of necessity. The necessity of his inclusion in the electoral list ... is derived from the impossibility of compiling an electoral list of the members of the Turkish community. Given this state of affairs, Mr Drakos submitted that the inclusion of the applicant in the electoral list of electors of the Greek community was justified and gave him the right to participate as an elector in the forthcoming parliamentary election. This was justified by the fact that the applicant resided in the areas controlled by the Republic of Cyprus where he operates, having the same rights and obligations as every other citizen. ... Assessment of the necessity relied on by the applicant and the establishment of measures to deal with it ... is a duty that falls upon the legislature. The competence of the judiciary is limited, provided the matter is submitted to it or arises in a case brought before it, to determining the constitutionality of the law ... It is not for the judiciary to assess the need to fill in gaps in the function of the constitutional statutes nor to establish measures to tackle them, which is basically what the applicant pursues with his application.” 14. Articles 31, 62 and 63 of the Cypriot Constitution provide as follows: “Every citizen has, subject to the provisions of this Constitution and any electoral law of the Republic or of the relevant Communal Chamber made thereunder, the right to vote in any election held under this Constitution or any such law.” “1. The number of representatives shall be fifty: Provided that such number may be altered by a resolution of the House of Representatives carried by a majority comprising two-thirds of the Representatives elected by the Greek community and two-thirds of the representatives elected by the Turkish community. 2. Out of the number of representatives provided in paragraph 1 of this Article, seventy per cent shall be elected by the Greek community and thirty per cent by the Turkish community separately from amongst their members respectively, and in the case of a contested election, by universal suffrage and by direct and secret ballot held on the same day. ...” “1. Subject to paragraph 2 of this Article every citizen of the Republic who has attained the age of twenty-one years, and has such residential qualifications as may be prescribed by the Electoral Law, shall have the right to be registered as an elector in either the Greek or the Turkish electoral list: Provided that the members of the Greek community shall only be registered in the Greek electoral list and the members of the Turkish community shall only be registered in the Turkish electoral list. 2. No person shall be qualified to be registered as an elector who is disqualified for such registration by virtue of the Electoral Law.” Article 5 of the 1979 Election of Members of the House of Representatives Law (Law 72/79) provides as follows: “The right to elect belongs to those who have the qualifications provided for under Article 63 of the Constitution, that is to say citizens of the Republic who have attained the age of twenty-one and have had their ordinary residence in Cyprus for a period of six months immediately before the date fixed by the Minister, by publication in the Official Gazette of the Republic, as the date of acquisition of the electoral qualifications.” Article 146 of the Cypriot Constitution grants the Supreme Court exclusive jurisdiction to adjudicate finally on applications made to it complaining, inter alia, that a decision, act or omission of any organ, authority or person exercising any executive or administrative authority is contrary to any of the provisions of the Constitution or any law, or is made in excess or in abuse of powers vested in such organ, authority or person.
| 1
|
train
|
001-80255
|
ENG
|
DEU
|
ADMISSIBILITY
| 2,007
|
COLLMANN v. GERMANY
| 4
|
Inadmissible
|
Peer Lorenzen
|
The applicant, Mr Reiner Collmann, is a German national who was born in 1941 and lives in Fortaleza (Brazil). He was represented before the Court by Mr V. Hente, a lawyer practising in Strasbourg (France). The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 15 July 1989 the motor yacht “Carat” caught fire and sank south of Cap Tossa between the Spanish coast and Ibiza. The German ship-owner and a Brazilian crew member were rescued by a Moroccan ferry passing by. Substantial damage was claimed for the loss of the vessel. The applicant submitted an expert report asserting that the market value of the ship was DEM 935,000. The insurance company and the Berlin police made an inquiry into the sinking of the vessel. On 23 October 1992 the Berlin-Tiergarten District Court (Amtsgericht) issued an international warrant of arrest against the applicant suspecting him of having taken part as an expert in asserting a fraudulent claim in an amount of approximately one million German marks against an insurance carrier for the loss of the motor yacht. On the applicant’s appeal the Berlin Regional Court (Landgericht) confirmed the warrant of arrest. On 30 March 1994 the applicant was arrested in Brazil and taken in detention in view of his extradition. On 13 August 1994 he was extradited to Germany and on 14 August 1994 taken in detention on remand. The indictment dated 25 November 1994 charged the applicant with insurance fraud under Article 265 of the Criminal Code (in its version in force until 31 March 1998). The applicant was accused of having been involved with others in the intentional sinking of an insured ship for the purpose of deriving an unjust economic advantage. The applicant’s requests for release were dismissed by the Berlin Regional Court on the ground that there was a risk of collusion. On 15 June 1995 the trial started before Berlin Regional Court (Landgericht). On 26 April 1996 the applicant complained to the Berlin Constitutional Court (Verfassungsgerichtshof) claiming that there was no evidence to suspect him of having committed or prepared an offence, and that his preventive detention was unlawful. On 9 May 1996 the Regional Court ordered the applicant’s release having regard inter alia to the long period spent by the applicant in detention on remand. On 20 November 1996 the applicant withdrew his constitutional complaint to the Berlin Constitutional Court.. On 11 March 1998 the Berlin Regional Court convicted another accused involved in the loss of the ship of fraud and sentenced him to two years’ imprisonment. On 31 October 1996, after having held 73 hearings, the Regional Court stayed the proceedings and revoked the warrant of arrest issued against the applicant on the ground that he suffered from a long-lasting illness. Having regard to his poor health, it did not fix a new hearing. By the Sixth Criminal-Law Reform Act of 1998, Article 265 of the Criminal Code, among other provisions, has been amended reducing the limitation period from twenty to ten years. As a consequence thereof, the limitation period for the charges brought against the applicant under that provision expired on 15 July 1999. On 15 February 2000 the Regional Court discontinued the criminal proceedings on the ground of prescription of prosecution. It ordered the costs of the proceedings and the applicant’s necessary costs and expenses to be borne by the Treasury, while it refused to grant the applicant compensation for the prosecution measures taken against him, namely for the time spent in detention in view of his extradition and the detention on remand, the search of his home, office and his prison cell and the confiscation of a life raft and various documents. The Regional Court relied on Section 5 § 2, first sentence, of the Act on Compensation for Prosecution Measures (Gesetz über die Entschädigung für Strafverfolgungsmaßnahmen). In accordance with this provision compensation shall be denied if the accused had deliberately or grossly negligently caused the prosecution measures taken against him. According to the Regional Court, gross negligence was the failure to use such care as a reasonably prudent and careful person would use under similar circumstances in order to be protected against harm by prosecution measures, or the failure to do what a reasonable person would have done under the circumstances. The existence of gross negligence must be assessed with reference to those facts which were known at the time of issuing or maintaining the respective measure. The Regional Court considered that the prosecution measures were occasioned by the applicant’s gross negligence. It mentioned in particular that the ship for which an insurance claim was made, had turned out to be a ship that the applicant had bought under a pseudonym and had modified in order to make it look as a ship of a higher value corresponding to that described in his expert report. These facts were proven beyond a reasonable doubt at the time of issuing the warrant of arrest and had been confirmed by further investigations and the evidence obtained at the oral hearings. The applicant appealed against that decision arguing that the Regional Court had committed errors of fact and law and arbitrarily assessed the evidence. On 22 March 2000 the Berlin Court of Appeal (Kammergericht) dismissed the applicant’s appeal lodged against the above decision. On 15 January 2001 the Berlin Regional Court fixed the amount of the costs to be reimbursed to the applicant at DEM 812.80. The applicant’s appeal against this decision was dismissed by the Berlin Court of Appeal on 21 May 2001. On 18 May 2001 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a bench of three judges, refused to admit the applicant’s constitutional complaint for adjudication without giving further reasons for its decision. Compensation for prosecution measures is covered by the Act on Compensation for Prosecution Measures (Gesetz über die Entschädigung für Strafverfolgungsmaßnahmen). 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). Pursuant to Section 5 § 2 of that law, compensation for prosecution measures shall be denied in cases where the accused has deliberately or in a grossly negligent manner caused the prosecution measure.
| 0
|
train
|
001-71477
|
ENG
|
HUN
|
ADMISSIBILITY
| 2,005
|
CSEPINSZKY v. HUNGARY
| 4
|
Inadmissible
| null |
The applicants, Mr László Csepinszky, and Mrs Lászlóné Csepinszky, are Hungarian nationals, who were born in 1925 and 1934 respectively and live in Budapest. The respondent Government are represented by Mr L. Höltzl, Deputy State-Secretary, Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 14 March 1995 the applicants requested that a payment order be issued against the community of the inhabitants of the building in which they lived. On 20 April 1995 the respondent objected to the order. Consequently, on 21 January 1996 the applicants filed an action for a settlement of accounts. The Buda Central District Court held hearings on 24 January, 18 June and 12 December 1996, 16 May and 17 September 1997. After another hearing on 23 April 1998, on 15 June 1998 the applicants requested a three-month interruption of the proceedings. Further hearings took place on 7 January and 19 September 1999. On that date, none of the parties appeared so the proceedings were stayed. On 26 October 1999 the applicants requested that the proceedings be resumed. They made final submissions to the court on 8 February 2000. On 25 February 2000 the District Court dismissed the applicants’ claims. On 3 November 2000 the Budapest Regional Court dismissed their appeal.
| 0
|
train
|
001-81078
|
ENG
|
TUR
|
CHAMBER
| 2,007
|
CASE OF MÖREL v. TURKEY
| 4
|
Violation of P1-1
| null |
5. The applicant was born in 1944 and lives in Istanbul. 6. He is the grandson of Ayşe Saide Ergun, who was one of the joint owners of a 255,951 m² plot of land in Çorlu. The applicant's share corresponds to 4,000 m² of the land in question. The applicant's right of succession is established by four different court decisions dated 7 March 1973, 12 July 1974, 5 January 1982 and 12 February 1996. However, the title of the land in question was registered, among others, in the name of Ayse Saide Ergun. 7. On 6 April 1988 the Ministry of Defence informed the Çorlu Municipality that the land in question was going to be expropriated. It communicated to the Municipality the names of the owners who were mentioned on the title deed and requested the relevant tax declarations, in order to determine their addresses. However, only the original owners' first names and the first names of their fathers appeared on the title deed. 8. In its letter of 22 April 1988 the Municipality was only able to submit the tax declarations in respect of some of the owners. They informed the Ministry that since they had not been communicated sufficient information on the identity of some of the owners, they were unable to find their tax declarations. 9. The village headman, the title registry office, the birth registration office, the gendarmerie and the police department in Çorlu also informed the Ministry that they had been unable to ascertain the addresses of the owners, as their last names and their birth registrations were not communicated to them. 10. On 3 May 1988 it was announced in a local newspaper that the property in question had been expropriated. It was also noted that a committee of experts would be assessing its value on 5 May 2005. On the said date the committee of experts assessed the value of the land at 255,951,000 Turkish liras (TRL). 11. On 26 December 1988 and 10 January 1989 the Municipality announced the expropriation of the land over loudspeakers, throughout the town. On 28 December 1988 it was announced, in another local paper, that the compensation for expropriation was deposited in a bank account, in the name of the owners, including that of the applicant's grandmother. In January 1989, the same notification was published also in a national newspaper. In all these publications only the original owners' first names and the first names of their fathers were mentioned. 12. On 30 July 1991 the property in question was registered in the name of the Treasury. 13. On 10 November 1996 the applicant and some of the heirs, who were the joint owners of the land in question, became aware of the expropriation of their property. 14. On 23 November 1996 the applicant, together with four other heirs, filed an action for additional compensation before the Çorlu Civil Court of First Instance, against the Ministry of Defence. 15. The Ministry requested the court to dismiss the case for failure to comply with the statutory time-limit. The plaintiffs argued that the authorities failed to notify them of the expropriation of their property. They contended that the notifications were deprived of any legal effect as they were made in the name of their deceased ancestors. 16. In November 1997 a group of experts, appointed by the court, inspected the land and concluded that the total amount of additional compensation that had to be paid to the plaintiffs was TRL 44,450,601,360. The applicant's share amounted to TRL 2,247,668,465. 17. On 18 February 1998 the court maintained that the Ministry breached the rules of notification as provided in Article 13 of the Law on Expropriation. It noted that the authorities merely notified the expropriation by publishing it in a newspaper, without making an extensive enquiry, as required in Article 7 of the Law on Expropriation. It also noted that the authorities could have also issued a notification through the notary. The Çorlu Civil Court of First Instance therefore dismissed the Ministry's preliminary objection and upheld the plaintiffs' request by increasing the expropriation fee together with an interest rate which would run from 5 July 1989, the supposed date on which several of the owners renounced their property right over the land in question. Relying on the expert report of November 1997, it awarded the applicant TRL 2,247,668,465. 18. On 5 November 1998 the Court of Cassation upheld the decision of the first instance court by modifying the date from which the interest rate would run. It held that the interest should begin to run from 26 December 1996 the date on which the property was transferred to the Ministry. 19. Following the Ministry's request, on 22 February 1999, the Fifth Chamber of the Court of Cassation rectified the decision of 5 November 1998. It held that although the authorities had followed the procedure prescribed in Article 7 of the Law on Expropriation they were unable to ascertain the addresses of the owners. The court maintained that the fact that there were no tax declarations for these properties was also confirmed in the Çorlu Municipality's letter dated 22 April 1988. The Court of Cassation consequently rectified its decision of 5 November 1998 and quashed the decision of the first instance court. 20. On 15 June 1999 the Civil Court of First Instance followed the reasoning of the Court of Cassation. It held that the Ministry had to notify the owners through publication, since it had been unable to determine the addresses, even after carrying out all necessary inquiry. It therefore dismissed the applicant's case for failure to comply with the statutory time-limit. 21. On 7 October 1999 the Court of Cassation upheld the decision of 15 June 1999. 22. On 5 May 2000 the applicant and the other heirs requested the reopening of the proceedings. 23. On 15 February 2001 the Çorlu Civil Court of First Instance asked the Çorlu Municipality and the Çorlu Tax Department whether the owners and their heirs paid any tax for the land in question. All the names communicated in this letter were mentioned in full. 24. The Çorlu Tax Department advised the Ministry to refer to the Municipality, as all property tax declarations as of 1986 were handed over to the municipalities. Whereas, tax declarations which dated before 1986 were submitted for paper recycling. 25. Later on the same day, the Çorlu Municipality informed the court that they were in possession of tax declarations in respect of the land in question, for the years of 1986, 1990, 1994 and 1998, which contained some of the addresses. It also attached to its letter copies of sixteen property tax declarations for the year 1986. According to these declarations, Sermet Ergun, who was the son of Ayşe Saide Ergun and the uncle of the applicant, together with his co-owners paid a total of TRL 2,175 in total, for their property of 11,682 m2. 26. On 23 February 2001 the Çorlu Civil Court of First Instance dismissed the plaintiff's request for rectification. 27. On 24 January 2002 the Court of Cassation upheld the decision of the first instance court. It observed that the authorities tried to find the owners by relying on the information found in the title registry. It noted that it was evident that the original owners were deceased and that the heirs paid their tax duties concerning these lands. It concluded however, that the fact that the tax department did not inform the authorities about the names and addresses of the owners did not render the notification, which had been carried out by the Ministry of Defence in accordance with Article 7 of the Law of Expropriation, void of effect. 28. On 21 June 1934, in accordance with the Law no. 2525, all Turkish citizens, who were, until then, referred to by their first name and the first name of their father, were requested to adopt a family name. 29. Article 7 of the Law on Expropriation (Law no. 2942) provides that the expropriating authority is required to establish ownership and ascertain the addresses by making an enquiry at the title registry, tax department, and birth registry. Moreover they are further expected to make everything that is necessary to contact the owners. Article 13 of the same Law provides that if the addresses of the owners are not found, then the expropriation should be notified by publication. Following the decision to expropriate a property, a committee of experts is requested to assess the value of the land. This amount is deposited in a bank account, in the name of the owners. Subsequently, all related documents are brought to the attention of the owners either by issuing a notification through a public notary or, when that is not possible, by way of publication (Article 10). If the owners do not request the annulment of the decision to expropriate, even if they file an action for additional compensation, all property rights over the land in question are transferred to the administration within 30 days from notification (Article 14).
| 0
|
train
|
001-66609
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,004
|
C. and D. and S. and OTHERS v. THE UNITED KINGDOM
| 4
|
Inadmissible
|
Matti Pellonpää;Nicolas Bratza
|
The applicant S., in application no. 34593/02, is a United Kingdom national born in 1964 and resident in Torbay. She brings this application on her own behalf and on behalf of her children, A., born in 1991, and B. born in 1992, also United Kingdom nationals. She is represented by Ms N. Mole, of the AIRE Centre, London. The applicants in application no. 34407/02, C. and D., born in 1992 and 1989, are represented by their guardian and solicitor, Mr P. Perusko, a solicitor practising in Bedford and are also United Kingdom nationals. The facts of the case, as submitted by the parties, may be summarised as follows. S. met the father of A. and B. in 1987. They started to cohabit in 1989. She already had a son P. from a previous relationship. In 1991 A., a boy, was born and B., a girl, was born in 1992. Serious problems emerged in the family in May 1999 when P ran away from home. He alleged that his stepfather, the father of A. and B., had repeatedly beaten him. Torbay Council arranged a foster placement. The father denied the allegations and S. supported him. At a case conference in November 1999, the father was arrested for threatening behaviour. He was subsequently charged and sentenced to community service. Torbay Council issued applications for a care order in respect of P. and supervision orders in respect of A. and B. In May 2000, P. made allegations of sexual abuse against his stepfather. A child protection investigation followed. The stepfather denied the allegations, supported by S. On 7 June 2000, A. and B. were taken into care pursuant to an emergency protection order and placed in foster care. In July 2000, S. separated from A. and B.’s father. While the paediatric examinations of A. and B. were inconclusive, an expert reported that the father presented an unacceptable risk to them and that S., their mother, was unable to protect them. He recommended therapy for the mother. Torbay Council sought care orders for all three children. Its care plan for P. was that he should remain in care. The care plan for A. and B. was to attempt to rehabilitate them with S. On 1 November 2000, after a hearing, the County Court judge found that the father had sexually abused P. and beaten the children with a slipper. She also found that S. had failed to protect them. While it was agreed that there should be a care order in respect of P., there was some debate as to the orders to be made in respect of A. and B. S. and the children’s guardian elicited assurances from Torbay Council on the package of support and treatment available to the family which was needed to make rehabilitation viable. S.’s counsel sought some guarantee of performance, or a safeguard in respect of breach. She argued, inter alia, that it was neither necessary nor proportionate for a care order to be made on the footing that all power and responsibility should pass to Torbay Council. S. was sceptical, on past experience, whether Torbay Council would carry out the care plan for A. and B. She contended that only interim care orders should be made while the children’s guardian sought final care orders. The judge made final care orders in respect of all three children expressing confidence that Torbay Council would implement the care plan. The applicant appealed. The care plan had envisaged reunification within 6-9 months. Within the four and a half months which followed between the orders and the appeal hearing, little happened. Meetings occurred between S. and the social worker assigned to A. and B. None of the planned family therapy work took place. No social worker was provided to assist S. The Hillside Family Centre programme was not started until March 2001. No therapy was started for the mother. The Court of Appeal later called this a “striking and fundamental failure” to implement the care plan and noted that most of the assurances given by the social workers and accepted by the guardian ad litem and judge had proved vain. It found that this was not a matter of bad faith and that the principal cause of the failings was a financial crisis within the authority leading to substantial cuts in the social services budget. The sad history of potentially disastrous failure fully vindicated the line taken by S.’s counsel at trial. The two brothers, C. and D., were born in 1989 and 1991 respectively, to an American mother and British father. The parents had a volatile relationship with periods of separation. Concern arose as to the parents’ ability to meet the children’s needs centring on the parents’ relationship and the mother’s mental health. In 1999, anxiety deepened. The mother made allegations about the father which were not substantiated. The mother’s conduct deteriorated. Her medical history included diagnoses of borderline personality disorder and bipolar disorder. There was concern about the children’s emotional development. On 2 September 1999, Bedfordshire County Council (“the Council”) applied for care orders and moved the children into foster care under an emergency protection order. The Council’s final care plan was that the children should be placed with the maternal grandparents with continuing direct contact for both parents. The grandparents who lived in the USA agreed to move to England. The children were to remain in foster care until they arrived. The children’s guardian supported this placement. During the period leading up to the hearing, both parents showed significant progress in understanding their own problems and those of the children and made efforts to work with the various doctors and experts engaged in the case. The mother, now conclusively diagnosed as having bipolar disorder and a personality trait, had come to accept her mental illness and the need for treatment and medication. The parents were living together again and wished to have the children returned. On 20 November 2000, the County Court commenced hearing evidence on the care applications. In his judgment on 11 December 2000, the judge stated that there was no question of ruling the parents out in the longterm but, for the present and near future, concluded that the children were unable to return safely to their parents: “possibly, or even probably, it may be appropriate in 12 to 18 months, but not now.” All the parties agreed that the maternal grandparents would be suitable carers, although the evidence that they would in fact be able to move to England was “exiguous in the extreme”. The judge described the care plan as inchoate because of all the uncertainties involved, not only concerning the grandparents but also the outcome of further assessment and therapy for the boys, the final outcome of marital work for the parents and the possibility of improvements with the mother’s personality traits. Nonetheless, the judge made care orders for both children. The parents applied for and obtained permission to appeal, submitting that the judge had erred in granting a final care order when so many issues were uncertain. Meanwhile, there was delay in the maternal grandparents obtaining residence and work permits and the boys were moved due to their foster mother suffering an accident. The Court of Appeal heard appeals in both cases together. In its judgment of 23 May 2001, the Court of Appeal proposed adopting a new approach to meet the situation where the judge’s evaluation of what was in the best interests of a child risked conflicting with events as they occurred after a final care order had been made. It was noted that while the parents might have the right to apply to the courts under section 7 of the Human Rights Act 1998 alleging a fundamental failure to implement a care plan, there was no person to act for a child if the parent did not choose to act. The guardian would have ceased to act and would no longer have any supervisory authority. First, the court enunciated guidelines intended to give trial judges a wider discretion to make an interim care order, rather than a final order. Second, in an innovation described by the House of Lords as “radical”, the Court of Appeal propounded a new procedure for the period after the making of a care order by which at trial the essential milestones of a care plan would be identified and elevated to a “starred status”. If a starred milestone was not achieved within a reasonable time after the date set at trial, the local authority would be obliged to “reactivate the interdisciplinary process that contributed to the creation of the care plan”. The local authority would at least have to inform the child’s guardian. Either the guardian or the local authority would then have the right to apply to the court for further directions. As regarded the Torbay case, the Court of Appeal considered the outcome finely balanced and declined to disturb the judge’s order. It was noted that the children might have remedies under the Human Rights Act if necessary but that meanwhile there had been sufficient progress in the case to make further referral to the High Court an unnecessary distraction in the case. As regarded the Bedfordshire case, it was clear that the care plan was insufficiently mature and that the judge had wanted more time to await developments but had been constrained by case-law to make the full care order. The judge should have insisted on more information before making the order or on a report back if matters did not turn out as expected. It allowed the appeal in that case, replacing the final care order with an interim one and remitting the case to the judge for further consideration. S. appealed in the Torbay case while the Secretary of State and Bedfordshire Council, supported by Torbay Council, appealed against the reasoning of the Court of Appeal, although not against the substantive orders made. Meanwhile, on 2 July 2001, the judge in the Torbay case starred various items in the final care plan: a parenting assessment was to be completed by 6 July 2001, a course of therapy for S. was to be completed by 7 September 2001 and a decision about the immediate goals of the care plan (reunification with S. or long term foster care) was to be made by 7 September 2001. She directed Torbay Council to provide a progress report to the children’s guardian, or in the absence of the guardian, to the court if a starred element was not achieved within 14 days of the specified dates. By the time of the House of Lords hearing, it was stated that the starred plan was working well and the children’s interests were being met. In the Bedfordshire case, setting aside the final care order had the unfortunate consequence of augmenting uncertainty. The maternal grandparents were reluctant to move to England without a final care order. On 24 October 2001, the judge made a final care order with the consent of the guardian and without any opposition from the parents. The care order was not starred. The agreement attached to the care order which was intended to supplement the care plan, indicated that the children would be in the care of the Council, that the maternal grandparents would be encouraged to move to the area as soon as possible and that it was in the best interests of the children for the legal proceedings to end. It was recorded that the parents believed that the family would be rehabilitated within two years and that the parents would apply to discharge the care order in the event that the children had not been placed with the grandparents by 31 March 2002, the grandparents became unable to care for the children or the children were not rehabilitated to the parents’ care within two years. It was further agreed that the Council would convene a statutory review in October 2003 at which the issue of rehabilitation would be specifically considered. In its judgment of 14 March 2002 (Re S (Minors) Care Order: Implementation of Care Plan) and Re W (Minors) (Care Order: Adequacy of Care Plan) [2002] 1 FLR 815), the House of Lords rejected S.’s appeal and allowed the appeal of the local authority. The headnote of the reported case summarised the judgment as follows: “(1) Parliament had set out its clear intention in the Children Act 1989 that once a care order had been made, the responsibility for the child’s care thereafter lay with the authority, not with the courts, and the courts were not empowered to intervene. The division of responsibility was a cardinal principle of the Act. The introduction of a system which gave the court a supervisory role following the making of a care order went beyond the bounds of the court’s judicial jurisdiction because it involved a substantial departure from one of the cardinal principles of the Act. Section 3 of the Human Rights Act 1998 required primary legislation to be read and given effect in a way compatible with Convention rights, so far as was possible, but the judicial innovation of starred milestones passed well beyond the boundary of interpretation and would constitute amendment. The starring system could not be seen as a mere judicial remedy for victims of actual or proposed unlawful conduct by local authorities entrusted with the care of children, justified by ss 7 and 8 of the 1998 Act, as the proposed system would impose obligations on authorities in circumstances where there had been no finding of unlawful conduct and, indeed, no breach or proposed breach of the Convention ... (2) The Children Act 1989 was not itself incompatible with or inconsistent with Art 8 of the Convention. Infringement of the right to respect for family and private life was only likely to arise if a local authority failed properly to discharge its responsibilities under the Children Act 1989; those responsibilities were not themselves an infringement of rights under Art 8. It might be that there was a failure to provide an effective remedy against local authority infringements of rights under Art 8, as while parents would have an effective remedy in the judicial review process or through proceedings under s 7 of the Human Rights Act 1998, in practice a child with no parent to act for them might not always have such a remedy, but that was not in itself an infringement of Art 8. Under the Convention, failure to provide an effective remedy for infringement of a Convention right was an infringement of Art 13, but Art 13 was not a Convention right under the Human Rights Act 1998. Therefore, legislation which failed to provide an effective remedy for infringement of Art 8 was not, for that reason, incompatible with a Convention right within the meaning of the Human Rights Act 1998 ... (3) Circumstances might perhaps arise in which English law relating to some decisions by local authorities concerning care of children would not satisfy the requirements of Art 6(1) ... The failure to provide access to a court as guaranteed by Art 6(1) meant that English law might be incompatible with Art 6(1), but the absence of such a provision from a particular statute did not mean that the statute itself was incompatible with Art 6(1). The absence in the Children Act 1989 of effective machinery for protecting the civil rights of young children with no parent or guardian was a statutory lacuna, not a statutory incompatibility. The inability of parents or children to challenge in court care decisions, however fundamental, made by a local authority while a care order was in force, was a different matter. Judicial review apart, the opportunity to challenge such decisions in court would be in conflict with the scheme of the 1989 Act. The issue of whether in this respect the Children Act 1989 was incompatible did not arise in this case, as the parties concerned had not lacked a court forum in which to express their concern at the lack of progress ... (4) Interim care orders were not intended to be used as a means by which the court might continue to exercise a supervisory role over the local authority in cases in which it was in the best interests of a child that a care order should be made. Problems had arisen about how far courts should go in attempting to resolve the uncertainties within care plans before making a care order. Where an uncertainty needed to be resolved before the court could decide whether it was in the best interests of the child to make a care order at all, the court should finally dispose of the matter only when the material facts were as clearly known as could be hoped. Some uncertainties relating to the details of the care plan were suitable for immediate resolution, in whole or in part, by the court in the course of disposing of the care order application; other uncertainties could and should be resolved before the court proceeded, during a limited period of ‘planned and purposeful’ delay. Frequently the uncertainties involved in a care plan could only be worked out after the making of an order. Despite all the inevitable uncertainties, when deciding to make a care order the court should normally have before it a care plan which was sufficiently firm and particularised for all concerned to have a reasonably clear picture of the likely way ahead for the child in the foreseeable future. The degree of firmness to be expected, as well as the amount of detail in the plan, would vary from case to case, but if the parents and the child’s guardian were to have a fair and adequate opportunity to make representations to the court on whether a care order should be made, the care plan must be appropriately specific. The court must always maintain a proper balance between the need to satisfy itself about the appropriateness of the care plan and the avoidance of over-zealous investigation into matters which were the responsibility of the local authority.” Lord Nicholls noted that the court would only ordinarily grant relief to a person who was victim of an actual and proposed breach of a Convention right. In the Torbay case, the problem had been essentially “drift” in the implementation of the care plan. In practice however, the mother, S., had not lacked a court forum in which to express her deep concern. Her appeal enabled her to raise these matters in the Court of Appeal and the intervention of that court appeared to have galvanised the local authority into taking the necessary action, if belatedly. He went on to state: “I must finally make an observation of a general character. In this speech I have sought to explain my reasons for rejecting the Court of Appeal’s initiative over starred milestones. I cannot stress too strongly that the rejection of this innovation on legal grounds must not obscure the pressing need for the Government to attend to the serious practical and legal problems identified by the Court of Appeal or mentioned by me. One of the questions needing urgent consideration is whether some degree of court supervision of local authorities’ discharge of their parental responsibilities would bring an overall improvement in the quality of child care provided by local authorities. Answering this question calls for a wider examination than can be undertaken by a court. The judgments of the Court of Appeal in this case have performed a valuable service in highlighting the need for such an examination to be conducted without delay.” In the Torbay case, the Council had decided that long term reunification should be the stated goal of the care plans of A. and B. S. had continued to receive therapy after September 2001, in particular regarding her re-instigation of contact with the children’s father. Contact was suspended in November 2001 as a result of S.’s renewed contacts with the father but resumed after Christmas 2001 and ad hoc overnight stays had taken place by 6 February 2002. The care plans were amended in light of changed circumstances so as to state that shared care (between S. and a children’s home or foster family) was the immediate goal. By February 2003, the children were regularly staying with S. at weekends. The most recent review meeting in August 2003 recorded that the care plan was for shared care, with up to three nights per week with S., together with long term foster placements for A. and B. However, contact is currently less than that, due to difficult behaviour by A. and B. In the Bedfordshire case, the grandparents moved to the United Kingdom, with financial assistance, and the children were duly placed with them on 19 December 2001. They had contact with their parents two to three times a week. By March 2002, a dispute had arisen between the parents and the Council as to the appropriateness of overnight contact. The parents intimated that they might apply to the court under section 34 of the Children Act 1989 to increase their contact rights but did not do so. Contact gradually increased and overnight contact began on 17 August 2002. From September 2002, the children stayed alternate weekends with their parents and after a review in February 2003 this was increased to three weekends per month. At the end of May 2003, a dispute arose as to whether the children should return permanently, which the local authority considered could not yet occur due to lack of compliance with the relevant regulations, in particular that a written agreement be reached with the parents as to various matters. The parents again intimated that they might apply to the court for increased contact but did not do so. By 12-13 June 2003, the children had been formally placed with their parents. At a further review on 9 September 2003, the chairperson of the statutory review considered that an application should be made to discharge the care order although family support would continue. The Council however considered that there should be a further period of assessment. Under section 31 of the Children Act 1989 (“the 1989 Act”), on the application of any local authority or authorised person, the court may make an order placing the child in the care of a designated local authority (“a care order”). The preconditions under section 31(2) are that the court must be satisfied that the child is suffering, or likely to suffer, significant harm; and that the harm is attributable to the care given, or likely to be given, not being what it would be reasonable to expect a parent to give. There is no power under the Act for a care order to be made on terms, or accompanied by directions, whether in accordance with a care plan or otherwise. A care plan may be discharged (section 39(1)) or substituted by a supervision order (section 39(4)). An interim care order may be made under section 38(1) which lasts for eight weeks initially and if renewed for four weeks. The judgment of Lord Nicholls in this case is regarded as the leading authority on the scope for the granting of interim care orders, namely, as a temporary “holding” measure where the care plan seems inchoate or where the passage of a relatively brief period seems bound to see the fulfilment of some event or process vital to the planning and deciding the future. An interim care order is not a means of exercising a supervisory role over the local authority’s implementation of its care plan but gives the court sufficient flexibility to defer making a final order until satisfied that the way ahead is no longer obscured by an uncertainty that is neither inevitable nor chronic. In deciding whether to make a care order, the court must have before it the details of the local authority’s proposed care plan. This is to be put on a statutory footing by new legislation. Section 121 of the Adoption and Children Act 2002 will insert a new section 31A in the Act requiring a care plan to be prepared by the local authority for the purposes of any application which may result in the making of an order. According to the Government, this was expected to come into force in September 2004. Once a care order has been made, a court retains jurisdiction over two aspects: under section 34, the local authority must allow the child reasonable contact with his parents and the court can adjudicate on any dispute as to what is reasonable contact or to vary or discharge any contact order; the court may entertain an application by the local authority, parent or child, to discharge the care order or substitute some other order e.g. a supervision order. Section 41 provides for the appointment by the court of a “Children’s Guardian” (an officer of the Children and Family Court Advisory and Support Service “CAFCASS”) for the purposes of specified proceedings e.g. applications for the making or discharge of care and supervision orders. CAFCASS’s primary function is to safeguard and promote the welfare of children. When the court rules on an application, the Guardian’s role comes to end. There is no statutory provision for Guardians to have a role outside active court proceedings. Section 118 of the 2002 Act provides for the appointment by the local authority of an “independent reviewing officer” (“IRO”). The IRO is independent of the line management involved in the child’s case and his/her role is to participate in statutory reviews, monitoring the authority’s functions and referring the case to CAFCASS if appropriate. Referral allows a Children’s Guardian to take any necessary action through the courts by acting for the child either in proceedings for judicial review or freestanding claims under the Human Rights Act 1998 (“HRA”). The IRO may also refer a child to a solicitor directly if legal assistance is considered more appropriate. An aggrieved party may appeal the making of a care order to the court on the basis that it was not justified in the circumstances e.g. that the order breaches the Article 8 rights of the parents or children (section 7(1)(b) of the HRA). Representations to the local authority may also be made by parents and children at the statutory reviews which take place after four weeks, three months and then every six months after the care order. The local authority is required to seek the views of all relevant parties. The local authority must also make available a complaints procedure, involving the participation of at least one person independent of the local authority (section 26 of the 1989 Act). Complaint may also be made to the Local Government Ombudsman if any interested party is unhappy about the discharge by a local authority of its functions under the Act. The Ombudsman can investigate complaints of maladministration (e.g. bias, neglect, incompetence, arbitrariness) and issue recommendations as to the steps which the authority should take to remedy the injustice to the person aggrieved (see the Local Government Act 1974). Applications may be made to the courts under the 1989 Act concerning contact arrangements or discharge of the care order. Any decision of a local authority in relation to a child in its care may be subject to judicial review in the Administrative Court. Judicial review does not provide an appeal on the merits of a decision. Grounds of challenge include illegality, irrationality, impropriety, material error of fact, acting for an improper purpose, failure to take into account relevant considerations, or taking into account irrelevant considerations. Judicial review proceedings may also include a complaint of breach of Convention rights, pursuant to section 7(1) of the HRA. The HRA also confers a free-standing right of complaint in the ordinary courts where it is alleged that a local authority has breached Convention rights in its decision-making in relation to a child in its care.
| 0
|
train
|
001-70931
|
ENG
|
TUR
|
CHAMBER
| 2,005
|
CASE OF EMRULLAH KARAGÖZ v. TURKEY [Extracts]
| 1
|
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
| null |
8. The applicant was born in 1978 and lives in Diyarbakır. 9. On 28 October 2001 he was arrested by gendarmes and taken into custody at the Diyarbakır gendarmerie command. 10. On 30 October 2001 the gendarmes took a statement from him. He was suspected of having assisted and supported the PKK (Workers' Party of Kurdistan), an illegal organisation under Turkish law. He allegedly signed his statement while blindfolded. At the end of his detention in the gendarmes' custody, he was examined by a forensic medical expert. No signs of ill-treatment were observed on his body. 11. On 1 November 2001, after being interviewed by the public prosecutor, the applicant was brought before a judge of the Diyarbakır National Security Court, who ordered his detention pending trial. Before both the prosecutor and the judge the applicant denied the accusations against him. He was subsequently taken to Diyarbakır Prison. 12. On 1 November 2001, ruling on applications by the governor of the state of emergency region and the public prosecutor, and on the basis of Article 3 (c) of Legislative Decree no. 430 on additional measures to be taken in connection with the state of emergency, the judge granted leave for the applicant to be sent back to the gendarmerie command for questioning for a period not exceeding ten days. The applicant was returned to the gendarmes' custody at 10.45 p.m. that day. 13. On 6 November 2001 the National Security Court dismissed an objection by the applicant's family, on the ground that the length of his detention was consistent with the limits laid down in domestic law. 14. On 10 November 2001 the judge extended the applicant's detention at the gendarmerie command by ten days, again on the basis of Legislative Decree no. 430. 15. On 15 November 2001 an objection by the applicant's representative was dismissed by the National Security Court. 16. On 20 November 2001 the applicant was taken back to prison. 17. On 20 and 21 November 2001 the governor of the state of emergency region and the public prosecutor, again on the basis of Legislative Decree no. 430, asked the judge to extend the applicant's detention at the gendarmerie command by a further ten days. 18. On 21 November 2001 the judge refused that request on the ground that the case file did not contain any evidence to substantiate it and that such an omission was attributable to the authorities. 19. The public prosecutor lodged an objection against that decision. 20. On 22 November 2001 the National Security Court allowed the objection and observed that the applicant was the subject of three other investigations. It granted a further ten-day extension and leave for the applicant to be taken from prison for questioning. 21. On the same day the applicant was handed over to the gendarmes. 22. On 1 December 2001 the judge extended the applicant's detention at the gendarmerie command by a further ten days. 23. On 12 December 2001 the applicant was taken back to Diyarbakır Prison. 24. Each time the applicant left and returned to the prison, he was examined by a doctor. The reports subsequently drawn up did not mention any signs of blows to the applicant's body. 25. In an indictment of 6 April 2001, the public prosecutor brought criminal proceedings against the applicant under Article 168 of the Criminal Code, by which it is an offence to be a member of an armed gang. 26. At a hearing on 26 June 2001, the National Security Court ordered the applicant's provisional release. 27. On 27 August 2001 he was acquitted in the absence of any evidence other than his initial statement to the gendarmes. 28. On 20 September 2001 the judgment became final. 29. On 9 November 2001 the applicant's representative lodged a criminal complaint with the public prosecutor at the National Security Court against the gendarmes, alleging that they had ill-treated the applicant in order to obtain a confession from him. He asked for the applicant to be given a thorough medical examination. He further submitted that the applicant's recurring periods of detention at the gendarmerie command had breached both the provision of the Constitution governing the maximum length of detention in police custody and Article 5 of the Convention. 30. On 13 November 2001 the public prosecutor at the National Security Court ruled that he did not have jurisdiction and forwarded the file to the Diyarbakır public prosecutor's office. 31. On 13 December 2001 the applicant was interviewed by the Diyarbakır public prosecutor. He asserted that he had been sprayed with cold water, had been insulted, threatened and beaten, had had his testicles squeezed and had been placed naked in front of a fan blowing cold air. He lodged a criminal complaint against the gendarmes involved in questioning him. He also requested a medical examination and treatment. 32. In a letter of 21 December 2001 to the Diyarbakır public prosecutor, the applicant's representative reiterated his allegations of torture and asked for his client to be examined at a specialist medical department. 33. On 14 February 2002 the public prosecutor ordered thorough medical examinations to be carried out at the urology department and a testicular scintigram and pelvic ultrasound scan to be carried out at the nuclear medicine department of Dicle University in order to detect any signs of ill-treatment. 34. In a document of 27 March 2002, addressed to the Diyarbakır provincial governor, the public prosecutor sought leave to bring proceedings against the gendarmes in whose custody the applicant had been held. 35. A urological ultrasound scan of 18 April 2002 and a testicular scintigram of 13 May 2002 did not reveal any abnormalities. 36. A preliminary investigation was opened by the Diyarbakır Provincial Administrative Council in respect of the gendarmerie commander. 37. On 1 May 2002 the Administrative Council decided, in the absence of sufficient evidence, not to open an investigation with a view to prosecuting the official in question. 38. On 22 May 2002 the applicant lodged an objection against that decision with the Diyarbakır Administrative Court. 39. On 31 December 2002 the Diyarbakır Administrative Court upheld the decision. The Diyarbakır public prosecutor's office subsequently discontinued the proceedings. 40. On 7 February 2003 the applicant appealed to the Siverek Assize Court against the decision to discontinue the proceedings. 41. On 26 March 2003 the appeal was dismissed in view of the decision by the Diyarbakır provincial governor's office. 42. As amended by Law no. 4709 of 17 October 2001, Article 19 of the Constitution provides: “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with the formalities and conditions prescribed by law: ... The arrested or detained person must be brought before a judge within forty-eight hours at the latest or, in the case of offences committed by more than one person, within four days ... The close relatives of persons who have been arrested or detained shall be notified immediately of their circumstances. ... Compensation must be paid by the State for damage sustained by persons who have been victims of treatment contrary to the above provisions, in accordance with the general rules governing the right to compensation.” 43. In addition, Article 144 of the Code of Criminal Procedure provides that anyone who has been arrested or detained pending trial may confer in private with his or her legal representative, who does not need to have been given an authority to act. 44. Legislative Decree no. 430 of 16 December 1990 on additional measures to be taken in connection with the state of emergency strengthened the powers of the governor of the state of emergency region. Article 3 (c) provides that, on a proposal by the governor, at the request of the public prosecutor and by order of a judge, persons who are detained after being convicted or pending trial may be taken from prison for questioning for a period not exceeding ten days. They must undergo a medical examination on leaving and returning to prison. 45. No court action may be brought against decisions of the governor of the state of emergency region. Article 8 of the legislative decree provides: “No criminal, financial or legal liability may be asserted against ... the governor of a state of emergency region or 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 shall be without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification.” 46. The Constitutional Court dismissed applications for review of Article 8 of Legislative Decree no. 430, finding that they were inadmissible ratione materiae on the ground that the legislative decree was not subject to constitutional review, in two judgments delivered on 3 July 1991 and 26 May 1992, published in the Official Gazette on 8 March 1992 and 18 December 1993 respectively. 47. Since 30 November 2002 the state of emergency in force in two provinces of south-eastern Turkey (Diyarbakır and Şırnak) has been permanently lifted. As a result, Legislative Decree no. 430 has ceased to apply since that date.
| 1
|
train
|
001-80998
|
ENG
|
MDA
|
CHAMBER
| 2,007
|
CASE OF FLUX v. MOLDOVA (No. 3)
| 4
|
Violation of Art. 10
|
Nicolas Bratza
|
5. On 27 March 1999, during a television broadcast, the head of the Department for Combating Organised Crime and Corruption, N. A., accused Valeriu Matei, the then Vice-President of Parliament and President of one of the political parties represented in Parliament, of corruption and, together with a mafia gang, of protecting several companies allegedly involved in criminal activities. He stated, inter alia, that: “...Mr Matei should have been arrested as he has committed both a criminal offence and a minor administrative offence... A criminal file concerning protecting criminals will be sent to the Prosecutor's Office and to the court... These companies [which were suspected of being involved in criminal activities] are being protected by the criminal gang headed by M. and by Mr Matei from Parliament...” 6. On 30 March 1999 Flux published an article entitled “The anti-corruption war: General N.A. versus President Matei. Nicolae Alexei claims that Valeriu Matei is providing political protection to a mafia clan.” 7. The article contained a word-by-word account of the televised broadcast of 27 March 1999 and the newspaper's commentary. 8. On 30 April 1999 Valeriu Matei brought a civil defamation action against Flux and argued that a large number of N.A.'s statements published by Flux were untrue and defamatory of him. The title of the article was not among those statements. 9. On 20 February 2003, by a final judgment, the Court of Appeal found that the statements complained of by Valeriu Matei were not defamatory of him, inter alia, because Flux had simply reproduced N.A.'s statements. However, it found that the following part of the article's title was defamatory of Valeriu Matei: “N.A. claims that Valeriu Matei is providing political protection to a mafia clan”. The court found that no such sentence had been pronounced by N.A. during the broadcast of 27 March 1999 and that the newspaper had not adduced evidence to prove that Valeriu Matei was a member of a mafia clan. The court ordered the newspaper to pay the plaintiff 3,600 Moldovan Lei (MDL) and to issue an apology within fifteen days. The newspaper was also ordered to pay the court fees. 10. The relevant provisions of the Civil Code in force at the material time read: Article 7 Protection of honour and dignity “(1) Any natural or legal person shall be entitled to apply to the courts to seek the withdrawal of statements which are damaging to his or her honour and dignity and do not correspond to reality, as well as statements which are not damaging to honour and dignity, but do not correspond to reality. (2) When the media body which circulated such statements is not capable of proving that these statements correspond to reality, the court shall compel the publishing office of the media body to publish, not later then 15 days after the entry into force of the judicial decision, a withdrawal of the statements in the same column, on the same page or in the same programme or series of broadcasts.” Article 7 § 1 Compensation for moral damage “(1) The moral damage caused to a person as a result of circulation through the mass media or by organisations or persons of statements which do not correspond to reality, as well as statements concerning his or her private or family life without his or her consent, shall be compensated by way of a pecuniary award. The amount of the award shall be determined by the court. (2) The amount of the award shall be determined by the court in each case as an amount equal to between 75 and 200 months' minimum wages if the information has been circulated by a legal person and between 10 and 100 months' minimum wages if the information has been circulated by a natural person.”
| 1
|
train
|
001-80480
|
ENG
|
FIN
|
CHAMBER
| 2,007
|
CASE OF A.H. v. FINLAND
| 4
|
Violation of Art. 6-1+6-3-d
|
Nicolas Bratza
|
6. On 24 February 1997 T., a six-year old boy, described to S., a psychologist, that he had experienced improper touching while in day care and referred to the applicant in this connection. The interview was recorded on videotape in the Family Advice Centre. 7. The next day the alleged offence was reported to the police. On 13 March 1997, T. was interviewed again by S., on that occasion in the course of the pre-trial investigation which had been opened. That interview was also recorded on videotape. 8. The applicant was questioned on 26 and 27 March 1997. He was not aware of the existence of the above recordings. 9. On 7 April 1997 S. submitted a written opinion on the credibility of T.'s statements. 10. In his closing argument on an unspecified date the applicant contested the alleged improper touching. He noted that the videotape, which he had become aware of following the submission by S. of the above-mentioned written opinion, and the opinion itself, were indirect evidence, which in the light of the Convention had to be treated with extreme care. He questioned whether the questions put to the boy had not been leading in nature. He also submitted that the boy would have to be heard in court, should charges be brought. He did not request an additional investigation. 11. The applicant was charged with having indecently touched the boy when working at a day nursery which the boy attended. The alleged offence had taken place repeatedly over a period of several months beginning in the autumn of 1996. 12. The video recording was played back in the District Court (käräjäoikeus, tingsrätten) and the court heard evidence from the applicant, T.'s mother and S., the psychologist who had interviewed the boy. H., a doctor in psychology specialising in criminology and forensic psychology, who had not interviewed the boy herself, was also heard as a witness. Several other witnesses, including the applicant's colleagues and the parents of other children in day care, gave testimony. None of the witnesses made any observations on the alleged acts. The parents gave evidence only on the perceived changes in their children's personality. The psychologist testified only about the reliability of T.'s statements. 13. On 29 October 1997 the District Court convicted the applicant of sexual abuse and sentenced him to a suspended term of seven months' imprisonment. It reasoned: “... S. has interviewed T. and the interviews have been recorded on videotape. The videotape has been played back in the District Court where witnesses S. and H. have also seen it. S. and H. have been heard as witnesses and [the applicant] has had an opportunity to put questions to them. The fact that [the applicant] had no opportunity to put questions to T., for example during the pre-trial investigation, does not mean that the above-mentioned evidence could not be taken into account. At the time of the pre-trial investigation T. was six years old and he had his seventh birthday in August 1997. Thus, he could not be heard before the court. Even though [the applicant] has had no opportunity to put questions directly to T., the rights of the defence cannot be considered to have been jeopardised. In the light of the evidence submitted to it, the District Court has no doubt that [the applicant] is guilty [...]. ...” 14. The applicant, the prosecution and the complainant appealed, arguing that the lower court had based his conviction on T.'s testimony as given to his mother and also later recorded on videotape. He requested the appellate court to hold that this indirect evidence could not be used in evidence. He also repeated his view that leading questions may have been put to the boy. He stated that his right to examine witnesses had been violated as he had not had an opportunity to put questions to T. 15. On 26 June 1998 the Court of Appeal (hovioikeus, hovrätten), having held an oral hearing, upheld the conviction but increased the sentence to fourteen months' imprisonment with immediate effect. It found that the technical quality of the videotape, which had been played back in the court, was poor as regards its image and sound reproduction and that the contents of T.'s statements could not be reliably assessed merely on the basis of that recording. The recording however showed that S. had carried out the interview without any preconceived idea of its outcome. The statements of two of the applicant's colleagues showed that it would have been possible for the applicant to have acted as described in the indictment without anyone noticing. The statements of T.'s mother and other day care children's parents showed that there had been changes in their children's behaviour after they had been in contact with the applicant. The court did not mention the applicant's argument that he had not been able to put questions to T. 16. The applicant sought leave to appeal, arguing that he had not been afforded an opportunity to put questions to T. The indirect evidence should therefore have been rejected. 17. On 25 September 1998 the Supreme Court refused leave to appeal. 18. The Decree on Criminal Investigations and Coercive Measures (asetus esitutkinnasta ja pakkokeinoista, förordning om förundersökning och tvångsmedel; Act no. 575/1988) provides that when questioned during a pre-trial investigation the child must be treated with due respect having regard to his or her age and level of development. Where possible, the interview should be carried out by a police officer acquainted with that task. If need be, a doctor or an expert must be consulted before the interview (section 11). 19. The Criminal Investigations Act (esitutkintalaki, förundersökningslagen; Act no. 449/1987) provides that questioning and other investigation measures requested by a party must be carried out, if that party shows that there is a possibility that these measures could have an effect on the case, provided that the expenses so incurred are not disproportionate to the nature of the case (section 12). The competence to decide on investigation measures requested by a party lies with the head of investigation during the pre-trial investigation and with the public prosecutor after the case has been transferred to him or her (section 15(3)). A pre-trial investigation has to be carried out in such a manner that no one is placed under suspicion without due cause and no one is unnecessarily subjected to harm or inconvenience. Nor must the rights of those concerned be infringed more than is necessary for the achievement of the purpose of the investigation (section 8). 20. The investigator may permit a party and his counsel to be present during the questioning of another party or witness, provided this does not hinder the investigation of the offence (section 32(1)). A party and his or her counsel may, with the permission of the investigator, put questions to the person being questioned in order to clear up the case. The investigator may decide that the questions are to be put through him or her. Also, the prosecutor may put questions to the person being questioned. A party and his or her counsel have the right to request the investigator to ask the person being questioned about matters necessary for the clearing up of the case at other times also (section 34). 21. Before the closing of the criminal investigation, the parties must be afforded the opportunity to present to the criminal investigation authority their statement on the material gathered during the investigation, if this is conducive to hastening or facilitating the hearing of the case in court. The statement is to be appended to the investigation record (section 42). 22. The Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) lays down the applicable rules on receiving testimony. 23. A witness must give testimony orally before the court and must not refer to a written testimony. Oral evidence given during a pre-trial investigation may be read out when the witness in question is heard by the court only if he or she retracts in court an earlier statement or states that he or she is unable or unwilling to testify before the court (chapter 17, Article 32; Act no. 571/1948). 24. If a person called as a witness is less than 15 years of age, is mentally ill or mentally retarded, or his or her mental capacities have otherwise been impaired, the court shall, taking into consideration the circumstances, assess whether or not he or she may be heard as a witness (Chapter 17, Article 21). Although the hearing of evidence from children falls within the court's discretion, there has been a long-standing practice not to hear evidence in court from children under the age of ten. 25. At the time of the proceedings in question, there were no legal provisions concerning the use as evidence of a video recording of a statement given by a child during the pre-trial investigation. There was however a practice to admit such recordings as evidence. 26. The Code of Judicial Procedure was amended with effect from 1 October 1997 to the following effect. A statement in a pre-trial investigation record or another document may as a rule not be admitted as evidence in court. The court may exceptionally admit as evidence such a statement, if the witness in question cannot be questioned before the court (chapter 17, Article 11; Act no. 690/1997). 27. The Code of Judicial Procedure was again amended with effect from 1 October 2003 to the effect that the testimony of a person under 15 years of age, or a mentally disturbed person, recorded on audio or videotape during a pre-trial investigation may be used as evidence if the accused has been provided with an opportunity to have questions put to the person giving the testimony (chapter 17, Article 11(2); Act no. 360/2003). According to the explanatory report to the relevant Government Bill (no. 190/2002), this new provision places emphasis on both the idea that giving testimony before the court may be detrimental to inter alia a child and on the importance of respecting the rights of the defence. 28. Chapter 17, Article 21 (as amended by Act no. 360/2003) of the Code of Judicial Procedure reads with effect from 1 October 2003 as follows: “(1) A person who has not attained the age of fifteen or whose mental capacities have been impaired, may be heard as a witness or for the purpose of obtaining evidence if the court finds it appropriate and: (i) if the hearing in person is of significant relevance for the establishment of the facts of the case; and (ii) the hearing is not likely to cause such suffering or other harm to the person to be heard as could be detrimental to the person concerned or his or her development. (2) Where necessary, the court shall designate a support person for the person to be heard, pursuant to the provisions of chapter 2 of the Criminal Procedure Code (Act no. 689/1997). (3) The person to be heard shall be questioned by the court, unless the court finds particular reason to entrust the questioning to the parties in accordance with the provisions of section 33. The parties shall be provided with an opportunity to put questions to the person to be heard through the intermediary of the court or, if the court finds it appropriate, directly to the person concerned. Where necessary, the hearing may take place on premises other than the court room.” 29. In 2003, the Criminal Investigations Act was supplemented with a new section 39a (Act no. 645/2003) that entered into force on 1 January 2004 and reads as follows: “The questioning of a victim or a witness must be recorded on videotape, or by using other comparable audio-visual means of recording, if there is an intention to use the statement given in the interview as evidence in court proceedings, and where it is not possible to hear the victim or the witness in person, due to his or her young age or mental disturbance, without causing likely harm to him or her. The special requirements set by the level of maturity of the questioned person for the methods used, for the number of participating persons, and for other conditions, must be taken into account in the questioning. The person in charge of the criminal investigation may decide that authorities other than the investigators may, under the supervision of the investigator, put the questions to the person being interviewed. The suspect must be provided with an opportunity to put questions to the questioned person. On the request of the suspect, he or she may also put the questions through a legal counsel or other representative. However, the investigator may order that the questions be put through his or her intermediary.”
| 1
|
train
|
001-90955
|
ENG
|
POL
|
ADMISSIBILITY
| 2,008
|
TOSCANO v. POLAND
| 4
|
Inadmissible
|
David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
|
The applicant, Ms Elwira Toscano, is a German national who was born in 1935 and lives in Berlin. She is represented before the Court by Mr T. Gertner, a lawyer practising in Bad Ems. A summary account of historical events in which the present application originated can be found in the Court’s decision on admissibility in the case of Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (see Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (dec.), no. 47550/06, 7 October 2008, §§ 3-5, ECHR 2008-...). The applicant’s family owned 49 hectares of agricultural land in Nowy Tomyśl and 1.5 hectares of land in Szklarka Trzcielska. This region before and during the Second World War belonged to the German Reich. After the defeat of Germany at the end of the war, when the border between Germany and Poland was drawn along the Oder-Neisse line, it was included in the territory of Poland (see Preussische Treuhand GmbH & CO. Kg A. A., cited above, § 3). According to the applicant, on 29 June 1945 Polish militiamen came to their house and told them that they were to be deported at once. They were given only half an hour to pack the barest personal essentials. They marched for about four weeks towards the Oder. They eventually arrived in BerlinAdlershof. The applicant and other members of her family have still not been allowed to return to their home and have been refused restitution of their property. A detailed description of the relevant international and domestic law is set out in the above-mentioned case of Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (ibid. §§ 31-41).
| 0
|
train
|
001-78666
|
ENG
|
GBR
|
ADMISSIBILITY
| 2,006
|
PARRY v. THE UNITED KINGDOM
| 1
|
Inadmissible
|
Josep Casadevall;Nicolas Bratza
|
The applicants are British nationals who were born in 1939 and 1940 respectively, and live in Port Talbot. They are represented before the Court by the Student Law Office, lawyers practising in Newcastle-upon-Tyne. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants married in 1960. They have had three children, born in 1961, 1963 and 1973. They remain lawfully married. Both have deep religious convictions; the first applicant was ordained as a church minister in 1970. The first applicant was born male. However, the first applicant felt from an early age a strong desire to live as a woman. In 1998, the first applicant started to take steps to come to terms with this need. The first applicant was ultimately advised by doctors that he would require gender reassignment surgery; this was carried out at public expense on the National Health Service (although it is not entirely clear when this took place). She continues to undergo hormone replacement treatment and other forms of treatment such as laser treatment and electrolysis. She changed her name by deed poll from William David Parry to Wena Dean Parry in 1998. She has completed all of her surgical interventions and contends that she is in all private and public relationships a woman. The second applicant has stood by the first applicant, and they contend that they remain together as “a loving and married couple.” Following the introduction of the Gender Recognition Act 2004 (‘GRA 2004’), the first applicant made an application to the Gender Recognition Panel (‘the Panel’) on 1 January 2005 for the issue of a Gender Recognition Certificate (‘GRC’). Because the first applicant is married, the Panel could only issue an interim GRC, which they did on 25 May 2005. The only purpose of such a certificate is to enable the first applicant to seek annulment of a lawful marriage. On annulment, she would then be able to obtain a full GRC, a formal recognition of her acquired gender. Neither applicant wishes to annul their marriage, so the first applicant is unable to obtain a full GRC. The Gender Recognition Act 2004 (‘GRA 2004’) provides a mechanism whereby transsexuals may have their new genders recognised. Section 2 provides that a Gender Recognition Panel must grant an application if it is satisfied that the applicant: (1) has, or has had, gender dysphoria; (2) has lived in the acquired gender throughout the preceding two years; and (3) intends to continue to live in the acquired gender until death. By section 3, an application must include a report from a registered medical practitioner, or a chartered psychologist, either of whom must be practising in the field of gender dysphoria. This report must include details of diagnosis. A second report must also be included, which need not be from a medical professional practising in the field of gender dysphoria, but could be from any registered medical practitioner. At least one of the reports must include details of any treatment that the applicant has undergone, is undergoing or that is prescribed or planned, for the purposes of modifying sexual characteristics. Section 4 sets down the consequences of an application being successful. It reads in material part as follows: “(1) If a Gender Recognition Panel grants an application under section 1(1) it must issue a gender recognition certificate to the applicant. (2) Unless the applicant is married, the certificate is to be a full gender recognition certificate. (3) If the applicant is married, the certificate is to be an interim gender recognition certificate. (4) Schedule 2 (annulment or dissolution of marriage after issue of interim gender recognition certificate) has effect. Section 5 governs the situation where an interim certificate has been granted. It reads in relevant part as follows: “(1) A court which - (a) makes absolute a decree of nullity granted on the ground that an interim gender recognition certificate has been issued to a party to the marriage, or (b) (in Scotland) grants a decree of divorce on that ground, must, on doing so, issue a full gender recognition certificate to that party and send a copy to the Secretary of State. (2) If an interim gender recognition certificate has been issued to a person and either- (a) the person’s marriage is dissolved or annulled (otherwise than on the ground mentioned in subsection (1)) in proceedings instituted during the period of six months beginning with the day on which it was issued, or (b) the person’s spouse dies within that period, the person may make an application for a full gender recognition certificate at any time within the period specified in subsection (3) (unless the person is again married). (3) That period is the period of six months beginning with the day on which the marriage is dissolved or annulled or the death occurs. (4) An application under subsection (2) must include evidence of the dissolution or annulment of the marriage and the date on which proceedings for it were instituted, or of the death of the spouse and the date on which it occurred. (5) An application under subsection (2) is to be determined by a Gender Recognition Panel. (6) The Panel – (a) must grant the application if satisfied that the applicant is not married, and (b) otherwise must reject it. (7) If the Panel grants the application it must issue a full gender recognition certificate to the applicant.” The only function of an interim gender recognition certificate is therefore to provide a document which can be used to obtain a divorce. The other provisions of the GRA 2004 only apply where a full gender recognition certificate is concerned. These include, for instance, section 9, which provides that: “(1) Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).” By Paragraph 3 of Part 1 of Schedule 3 to the GRA 2004, the issue of a full gender recognition certificate obliges the Registrar General to make an entry in the (new) Gender Recognition Register and to mark the original entry in the register of births referring to the birth (or adoption) of the transsexual person to show that the original entry has been superseded. Paragraph 5 makes provision for certified copies to be made of any entry in the GRR and to be issued to anyone who would be entitled to a certified copy of the original entry relating to the transsexual person. It will not be apparent from the certified copy that it is compiled from the GRR. A short certificate of birth compiled from the GRR must, by Paragraph 6, not disclose that it is compiled from the GRR. Both copies of and short-form certificates therefore look the same as any other birth certificates; they therefore act, to all outward intents and purposes, as new birth certificates. Not all provisions of the GRA 2004 require status or situations existing prior to gender recognition to be changed or dissolved. For instance, provisions as to parenthood (section 12), succession (section 15) and peerages (section 16) explicitly provide that the person’s gender has become the acquired gender does not effect their status or rights flowing therefrom. Section 11(c) of the Matrimonial Causes Act 1973 provides that a marriage is void unless the parties are “respectively male and female.” In Corbett v Corbett [1971] Probate Reports 83 it was held that marriage could only be between a woman and a man, determined on genital, gonadal and chromosomal factors, and should not take into account the party’s psychological beliefs, however genuine and profound. Section 11(c) of the Matrimonial Causes Act 1973 and Corbett v Corbett have recently been reconsidered by the House of Lords in Bellinger v Bellinger [2003] UKHL 21. Their Lordships considered that the words “male” and “female” were to be given their ordinary meaning and referred to a person’s biological gender as determined at birth so that, for purposes of marriage, a person born with one sex could not later become a person of the opposite sex. They therefore held that it was not possible under English law for a person to marry another person who was of the same gender at birth, even if one of them had undergone gender reassignment surgery. They did, however, issue a declaration that Section 11(c) of the 1973 Act represented a continuing obstacle to the ability of the (male to female) transsexual petitioner to enter into a valid marriage with a man, and that it was therefore incompatible with her rights under Articles 8 and 12 of the Convention. The Civil Partnership Act (the CPA 2004) came into force on 5 December 2005. It has the effect of allowing same sex couples to acquire a legal status for their relationships, with legal rights and responsibilities. It is, however, devoid of any religious element.
| 0
|
train
|
001-71236
|
ENG
|
POL
|
ADMISSIBILITY
| 2,005
|
WYPYCH v. POLAND
| 2
|
Inadmissible
|
Nicolas Bratza
|
The applicant, Mr Andrzej Wypych, is a Polish national who was born in 1954 and lives in Kwidzyń. He was represented before the Court by Ms Beata Czech, a lawyer practising in Kwidzyń. The applicant was elected to the Kwidzyń Town Council during the municipal elections of October 2002 and has served as a councillor since that date. His term of office lasts four years. On 1 January 2003 amendments to the 1998 Local Government (County) Act, enacted in November 2002, came into force. These amendments impose an obligation on local councillors to disclose information to the public concerning their financial situation and property portfolio. This is to be done through a declaration which is submitted to the president of the local council. These declarations are subsequently published in the Public Information Bulletin, available to the general public via the Internet. In February 2003 the applicant asked the Ombudsman to lodge a request with the Constitutional Court to examine whether the provisions of the 1998 Act, as amended in 2003, were compatible with the Constitution insofar as they imposed an obligation on local councillors to make detailed information available to the general public about their property and income. The applicant argued that the provisions of the 1998 Act had not previously provided for such a disclosure. He was of the opinion that this obligation was in breach with the 2001 Protection of Personal Data Act. He argued that making such information publicly available would facilitate political harassment and could expose him and his family to the threat of theft or burglary. He could refuse to submit a declaration, but he would then be deprived of the monthly emoluments payable for his work as councillor. He drew the Ombudsman’s attention to the fact that, even in such a scenario, he would not be deprived of his office. In his view, this cast doubt on the effectiveness of the obligation to submit the impugned declaration. Insofar as declarations were designed to curb corruption, it was illogical that a failure to submit such a declaration would not result in removal from office. In his replies of 20 March, 8 May and 13 August 2003, the Ombudsman indicated that he was in receipt of voluminous correspondence drawing attention to various aspects of the transparency obligations imposed by the 2002 amendments to the 1998 Act. His correspondents argued that the scope of the obligation to make publicly available details pertaining to the financial situation of various local politicians and officials was too extensive and breached the right to respect for private and family life. In the light of the public reaction to those amendments, the Ombudsman was considering whether to ask the Constitutional Court to examine their compatibility with the Constitution. Eventually, however, after analysing various provisions of the Act, the Ombudsman complained to the Constitutional Court only about those amendments to the 1998 Act which imposed a wide-ranging obligation on certain local politicians to submit declarations about various aspects of the business activities of their close and extended families, in particular insofar as these activities concerned companies owned or co-owned by local municipalities. In a judgment of 13 July 2004, the Constitutional Court found certain of those provisions constitutional and declared others incompatible with the Constitution. However, it did not examine the obligation complained of in the present case, but only dealt with those obligations under the amended 1998 Act which related to the business activities of local politicians’ families. The applicant does not wish to disclose details about his income and property as required by the 1998 Act as amended. He has not submitted a declaration as required. Consequently, he has received no emoluments for his work as a councillor since July 2003, these emoluments amounting to 1,190 zlotys (PLN) per month. Article 61 of the Constitution reads: Every citizen shall have the right to obtain information on the activities of public bodies and of persons discharging public functions. This right shall also include the receipt of information on the activities of self-governing economic or professional bodies and other persons or organisational units in connection with fields in which they perform public duties and manage communal assets or property belonging to the State Treasury. The right to obtain information shall guarantee access to documents and entry to the sittings of collective public bodies which have been formed by universal suffrage and shall include the opportunity to make sound and visual recordings. Limitations on the rights referred to in paragraphs 1 and 2 above may be imposed by statute solely in order to protect the freedoms and rights of other persons and economic subjects, public order, security or important economic interests of the State. The procedure for the provision of information referred to in paragraphs 1 and 2 above shall be specified by statute and, as regards the Sejm and the Senate, by their rules of procedure. Article 47 of the Constitution provides: Everyone shall have the right to legal protection of his private and family life and of his honour and good reputation and the right to make decisions about his personal life. Article 79 § 1 of the Constitution provides as follows: “In accordance with principles to be specified by statute, everyone whose constitutional freedoms or rights have been infringed shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or other normative act on the basis of which a court or an administrative authority has issued a final decision concerning his freedoms or rights or on his obligations as set out in the Constitution.” By a judgment of 23 June 1999 the Constitutional Court examined a request to examine the compatibility with the Constitution of the 1997 Act on Restrictions on Business Activity of Persons Carrying Out Public Functions (which was later replaced by the legislation complained of in the present case). In this request the complainants argued that the provisions of the 1997 Act insofar as they prevented members of executive boards of local councils and various other officials of local administration from conducting business activities on their own account were incompatible with the Constitution. This was because, the complainants averred, they imposed undue restrictions on business freedom guaranteed by its Article 22 of the Constitution. It was also argued that these restrictions were in breach of the principle of equality guaranteed by its Article 32. The Constitutional Court recalled the history of legislation intended to limit the scope of business freedom of persons engaged in various bodies of local government since the first such law was adopted in 1992. It reiterated that these laws were to curb possible corruption by making it impossible for certain categories of public officials to combine their public functions with business activity. The Court further considered that the provisions complained of could not be said to breach the principle of equality as guaranteed by the Constitution. This principle meant that all persons having the same legally relevant characteristics were to be treated equally, without differences to their advantage or disadvantage. However, this principle accepted that different classes or groups of persons be treated differently (K17/95). In this connection, it reiterated that the case-law of the Court regarding restrictions of business activity of persons holding public functions was already established in that it had repeatedly held that such persons had to expect that such restrictions would be imposed on them. It recalled that these restrictions were meant to prevent public officials from engaging in situations and dilemmas of such a nature as to be capable of not only casting doubt on their personal honesty and integrity, but also of undermining authority of the State’s bodies and of weakening the trust of the electorate and public opinion in their functioning (W 2/94). The Court referred to its judgment given in 1995 in which it had stated that the legislature was empowered to impose various restrictions on local councillors in respect of their professional activities, provided that such limitations would be reasonably linked to public interest they were intended to serve and that the scope of such limitations remained proportionate to the importance of such public interest (K 29/95). As regards the temporal scope of application of the 1997 Act, the Court noted the complainants’ argument that the introduction of that Act adversely the legal situation of the public officials concerned in that it had extended during their mandate the scope of limitations applicable to them. The Court considered that the prohibition on laws which harmed the position of individuals applied only to existing legal relationships within the area of civil, social insurance or administrative law. It could not be interpreted in such a way as to constitute a total ban on the introduction of new public law regulations which would be less advantageous for persons carrying out public functions during their mandate. It was of the view that such persons could not be considered as having any ‘acquired rights’ in respect of the conditions of their mandate that could be compared to such rights within the meaning of this term for the purposes of civil or social insurance law. Under Article 25 (c) § 1 of the Local Government (County) Act of 5 June 1998 as amended in 2002, local councillors, members of local government executive boards, executive secretaries to county councils and members of governing boards of legal entities with legal personality, such as companies owned or co-owned by local municipalities, are to submit declarations on their financial situation and property portfolio, hereinafter referred to as “declarations”. The declarations must cover their personal property and assets owned as marital property, and must list the following assets: savings and other liquid assets, all immovable property and shares and actions in public companies owned by both public-law and private-law persons. The declarations must also include information on property purchased by way of tender from any public-law entities and information about businesses owned or run by the persons obliged to submit declarations. The obligation to submit a declaration also covers information on income earned in the context of paid employment or any other income-generating professional or business activity. Further, information on all movable property exceeding PLN 10,000 in value is to be included. Information on all loans of over PLN 10,000 taken out by the individual concerned and the conditions under which these loans were granted is to be disclosed. Pursuant to Article 25 (c) § 5 of the Act, the declaration must be submitted within thirty days of the date on which a councillor makes a solemn oath to perform his or her duties honourably. Councillors’ declarations are to be submitted to the President of the County Council. Declarations are to be submitted for each calendar year until 30 April of the following year at the latest, and also two months prior to the end of a councillor’s term of office. The declaration is to be accompanied by a copy of the annual income-tax declaration for the relevant year. Declarations are to be submitted on a standardised form, provided in the Ordinance issued by the Prime Minister on 26 February 2003. The president of the local council is empowered to examine the declaration submitted by councillors and is obliged to transmit a copy to the local tax office. A copy of the declaration is to be kept for six years in the local council’s public records. Under Article 25 (c) § 8, the local tax office is empowered to examine whether the declaration is compatible with the councillor’s income-tax declaration for the relevant year. Where doubts arise as to its veracity, the president of the local council or the tax office may request the local tax inspectorate to institute a tax audit procedure in respect of the councillor. Pursuant to Article 25 (c) § 12, the president of the council is obliged to submit a report to the council by 30 October each year, listing those councillors who have failed to submit declarations. This report should include information about any irregularities discerned in the declarations and about any measures taken in connection with these irregularities, such as those provided for in section 25 (c) § 8 of the Act. Under Article 25 (d), the information contained in the declaration is to be made public, with the exception of councillors’ home addresses and the address of other real estate that they own. Pursuant to Article 25 (f), a councillor who fails to submit a declaration will not be paid his or her monthly emoluments until such time as a declaration is duly submitted. Electronic copies of all submitted declarations are accessible to the general public through the Public Information Bulletin, as provided for in the 2001 Access to Information Act. Pursuant to Article 8 of the Access to Information Act, a Public Information Bulletin has been created. It is an official publication and is accessible to the general public via the Internet. The Minister of Public Administration is responsible for its creation and functioning. He or she is also responsible for ensuring that all public-law entities which are legally so obliged submit any information which is to be made public and that the Bulletin’s home-page contains links enabling visitors to access all such information.
| 0
|
train
|
001-101586
|
ENG
|
RUS
|
CHAMBER
| 2,010
|
CASE OF SULTANOV v. RUSSIA
| 3
|
Violation of Art. 3 (in case of extradition to Uzbekistan);Violation of Art. 5-1;Violation of Art. 5-4;Remainder inadmissible;Non-pecuniary damage - award
|
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
|
6. The applicant was born in Uzbekistan in 1979. In March 2008 he left Uzbekistan and moved to Russia. 7. On 4 June 2008 the Main Investigations Department of the Uzbek Ministry of the Interior charged the applicant in absentia with organisation of a criminal group, attempts to overthrow the State's constitutional order and dissemination of the views of a radical extremist movement. The applicant's name was put on the wanted list. 8. On 5 June 2008 Namangan Criminal Court authorised the applicant's arrest. 9. On 9 July 2008 the Uzbek Prosecutor General's Office requested the Russian Prosecutor General's Office to extradite the applicant to Uzbekistan for prosecution. 10. On 18 September 2008 the Russian Prosecutor General's Office decided to extradite the applicant to Uzbekistan. The extradition order stated, inter alia, the following: “... the Main Investigations Department of the Uzbek Ministry of the Interior is investigating a criminal case against N.N. Sultanov ... The charges against N.N. Sultanov state that between 2000 and 2008, in the Namangan region of Uzbekistan, with the aim of overthrowing the State's constitutional order, he organised a criminal group... directed its units...actively participated in the criminal activities of the supporters of an extremist religious movement ... publicly called for the overthrow of the constitutional order of the Republic of Uzbekistan by carrying out “jihad” holy war and for the creation of an Islamic state ... ... The actions of N.N. Sultanov are punishable under Russian criminal law and correspond to part 1 of Article 210 (organisation of a criminal group), Article 278 (actions aimed at violent change of the constitutional order), part 1 of Article 280 (public calls for extremist activities) of the Russian Criminal Code; the penalties envisaged under those Articles exceed one year of deprivation of liberty. The limitation period for the above crimes under Russian and Uzbek law has not expired ...” 11. On 25 September 2008 the applicant was informed about the extradition order. According to him, he signed the documents certifying that he had been familiarised with the extradition order and refused to appeal against it without being aware of the contents of the document owing to his lack of Russian. 12. On 10 November 2008 the applicant's lawyer requested Moscow City Court to reinstate the statutory time-limits for the appeal procedure against the extradition order. On 20 November 2008 Moscow City Court refused the request. The applicant appealed, and on 9 February 2009 the Russian Supreme Court granted his request and reinstated the time-limits. 13. On 17 March 2009 Moscow City Court rejected the applicant's complaint against the extradition order and upheld his extradition to Uzbekistan. 14. On 19 March 2009 the applicant appealed against this decision to the Supreme Court of the Russian Federation. 15. On 20 March 2009 the European Court of Human Rights granted the applicant's request for application of interim measures under Rule 39 of the Rules of Court to suspend his extradition to Uzbekistan. 16. On 7 May 2009 the Supreme Court upheld the Moscow City Court decision and the extradition order became final. Referring to the applicant's complaints that he risked ill-treatment and torture in Uzbekistan, the court stated: “... the [applicant's] references to human rights violations in Uzbekistan... are of a general nature and there is no objective information in the case file indicating that these methods [of ill-treatment] would be applied to N.N. Sultanov ... ... the initiator of the search provided certain guarantees in respect of N.N. Sultanov. Failure to comply with these guarantees would provide the authorities of the Russian Federation with grounds to refuse future extradition requests [from Uzbekistan] in respect of other persons ...” 17. On 17 June 2008 the applicant was detained at Perm-2 railway station. 18. On 18 June 2008 the Perm transport prosecutor's office decided to arrest the applicant in accordance with the decision of Namangan Criminal Court in Uzbekistan and placed him in pre-trial detention facility no. 1 in Perm (SIZO-1). The decision did not provide time-limits for the applicant's detention. 19. On 6 August 2008 the Perm transport prosecutor's office again issued a decision to place the applicant in custody pursuant to the extradition order de facto extending the applicant's initial arrest of 17 June 2008. The decision did not provide time-limits for the applicant's detention. 20. On 18 September 2008 the Russian Prosecutor General's Office decided to extradite the applicant to Uzbekistan. 21. On an unspecified date between August and November 2008 the applicant was transferred from Perm to detention facility no. IZ-77/4 in Moscow. 22. On 21 January 2009 the applicant complained about his detention to Babushkinskiy District Court in Moscow. The complaint was submitted to the administration of the detention facility for further transmission to the court on 26 January 2009 and registered with the number C-12. However, on 16 June 2009 Babushkinskiy District Court informed the applicant that they had not received this complaint. 23. On 24 June 2009 the applicant complained to Tverskoy District Court in Moscow that his detention pending extradition was unlawful. He stated firstly that he had been detained pending extradition for more than a year without any legal extension of the detention, secondly that he had not had any opportunity to challenge the lawfulness of his detention, in violation of Article 5 § 4 of the Convention, and thirdly that the provisions of Russian criminal procedure legislation concerning detention pending extradition did not meet the 'quality of law' standard prescribed by Article 5 § 1(f) of the Convention. 24. On 21 July 2009 Tverskoy District Court rejected the applicant's complaint, stating the following: “... Chapter 13 of the Code of Criminal Procedure [concerning measures of restraint] regulates the procedure for the extension of pre-trial detention only in respect of those suspects and the accused against whom the Russian authorities have initiated criminal proceedings ... The procedure concerning the imposition of the measure of restraint in respect of the applicant is regulated by Article 466 of the Code of Criminal Procedure, which does not provide for an extension of detention with a view to extradition. At the same time it should be noted that the maximum term of detention of eighteen months, as prescribed by Article 109 of the Criminal Procedure Code ... has not been violated ... Therefore, the court finds that the applicant's complaint is unsubstantiated and should be rejected ...” 25. The applicant appealed against this decision to Moscow City Court. On 7 October 2009 the latter upheld the decision of 21 July 2009 and left the applicant's complaint that his detention was unlawful unexamined. 26. The applicant further appealed to Moscow City Court through the supervisory review procedure. On 17 November 2009 his appeal was dismissed by the City Court as unsubstantiated. 27. On 8 December 2009 the applicant complained to the Prosecutor General's Office and the Moscow Prosecutor that his detention was unlawful and requested to be released. He stated that his detention had not been extended by domestic courts and that the application of the interim measures by the Court (see paragraph 15 above) could not serve as the basis for his continued detention. 28. On 8 December 2009 the applicant lodged a supervisory appeal with Moscow City Court concerning unlawfulness and excessive length of his detention. This appeal was dismissed on 9 February 2010. 29. On 21 December 2009 the maximum eighteen-month detention period laid down in Article 109 of the Russian Code of Criminal Procedure expired, but the applicant remained in detention. 30. On 23 April 2010 Babushkinskiy District Court rejected the prosecutor's request for the applicant's house arrest. 31. On 23 April 2010 the Babushkinskiy inter-district prosecutor's office ordered the applicant's release from detention. On 26 April 2010 the prosecutor's office ordered the applicant to sign an undertaking not to leave the area. 32. On 6 November 2008 the applicant lodged a request with the Moscow Department of the Federal Migration Service (the FSM) for refugee status in Russia. On 5 December 2008 he was interviewed in the detention facility by an officer of the FMS, in the presence of his lawyer. 33. On 11 March 2009 the FMS refused the applicant's request for refugee status, stating “... there are no substantiated concerns that he would become a victim of persecution in Uzbekistan”. The applicant appealed against this refusal to Zamoskvoretskiy District Court in Moscow. 34. On 2 June 2009 Zamoskvoretskiy District Court upheld the refusal, stating that the applicant had failed to provide sufficient evidence that he risked ill-treatment if extradited to Uzbekistan, and that he had applied for refugee status only after his arrest, which demonstrated that he was trying to avoid lawful criminal prosecution in Uzbekistan. 35. The applicant appealed to Moscow City Court. On 3 November 2009 the City Court dismissed the appeal as unsubstantiated and upheld the decision of 2 June 2009. 36. On 18 January 2010 the applicant lodged a request with the FSM for temporary asylum in Russia. 37. On 3 March 2010 the Russian Department of the UN High Commissioner for Refugees informed the FMS that the applicant's fear of politically motivated ill-treatment in Uzbekistan was well-founded and that he was eligible for international protection under their mandate. 38. On 12 April 2010 the FMS refused the applicant's request for temporary asylum and informed the applicant about it on 16 April 2010 without providing a copy of this decision. 39. On 30 April 2010 the applicant appealed against this refusal to the Russian FMS. The proceedings are pending. 40. The Constitution guarantees the right to liberty (Article 22): “1. Everyone has the right to liberty and personal integrity. 2. Arrest, placement in custody and detention are permitted only on the basis of a judicial decision. Prior to a judicial decision, an individual may not be detained for longer than forty-eight hours.” 41. Article 16 of the European Convention on Extradition of 13 December 1957 (CETS no. 024), to which Russia is a party, provides as follows: “1. In case of urgency the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law. ... 4. Provisional arrest may be terminated if, within eighteen days of arrest, the requested Party has not received the request for extradition and the documents mentioned in Article 12. It shall not, in any event, exceed forty days from the date of that arrest. The possibility of provisional release at any time is not excluded, but the requested Party shall take any measures which it considers necessary to prevent the escape of the person sought.” 42. The CIS Convention on legal aid and legal relations in civil, family and criminal cases (the 1993 Minsk Convention), to which both Russia and Uzbekistan are parties, provides that a request for extradition must be accompanied by a detention order (Article 58 § 2). 43. A person whose extradition is sought may be arrested before receipt of a request for his or her extradition. In such cases a special request for arrest, containing a reference to the detention order and indicating that a request for extradition will follow, must be sent. A person may also be arrested in the absence of such a request if there are reasons to suspect that he or she has committed, in the territory of the other Contracting Party, an offence entailing extradition. The other Contracting Party must be immediately informed of the arrest (Article 61). 44. A person arrested under Article 61 must be released if no request for extradition is received within forty days of the arrest (Article 62 § 1). 45. Chapter 13 of the Russian Code of Criminal Procedure (“Preventive measures”) governs the use of preventive measures (меры пресечения), which include, in particular, placement in custody. Custody may be ordered by a court on an application by an investigator or a prosecutor if a person is charged with an offence carrying a sentence of at least two years' imprisonment, provided that a less restrictive preventive measure cannot be used (Article 108 §§ 1 and 3). The period of detention pending investigation may not exceed two months (Article 109 § 1). A judge may extend that period to six months (Article 109 § 2). Further extensions to twelve months, or in exceptional circumstances eighteen months, may be granted only if the person is charged with serious or particularly serious criminal offences (Article 109 § 3). No extension beyond eighteen months is permissible and the detainee must be released immediately (Article 109 § 4). 46. Chapter 16 (“Complaints about acts and decisions by courts and officials involved in criminal proceedings”) provides for the judicial review of decisions and acts or failures to act by an investigator or a prosecutor that are capable of adversely affecting the constitutional rights or freedoms of parties to criminal proceedings (Article 125 § 1). The court must examine the complaint within five days of its receipt. 47. Chapter 54 (“Extradition of a person for criminal prosecution or execution of sentence”) regulates extradition procedures. On receipt of a request for extradition not accompanied by an arrest warrant issued by a foreign court, a prosecutor must decide on the preventive measure to be applied to the person whose extradition is sought. The measure must be applied in accordance with the established procedure (Article 466 § 1). A person who has been granted asylum in Russia because of possible political persecution in the State seeking his extradition may not be extradited to that State (Article 464 § 1 (2)). 48. An extradition decision made by the Prosecutor General may be challenged before a court. Issues of guilt or innocence are not within the scope of judicial review, which is limited to an assessment of whether the extradition order was made in accordance with the procedure set out in the relevant international and domestic law (Article 463 §§ 1 and 6). 49. A person may apply for judicial review of decisions and acts or failures to act by a State body or a State official that are capable of violating his or her rights or freedoms, hindering the exercise of his or her rights and freedoms, or imposing an obligation or liability unlawfully (Articles 254 § 1 and 255). If the court finds the application well-founded, it must order the State body or State official concerned to remedy the violation or remove the obstacle to the exercise of the rights and freedoms in question (Article 258 § 1). “Article 255 § 3 of the Code of Criminal Procedure of the Russian Federation provides that the [trial court] may ... once six months has passed since the case was sent to it, extend a defendant's detention for successive periods of up to three months. It does not contain, however, any provisions permitting the courts to take a decision extending a defendant's detention once the previously authorised timelimit has expired, in which event the person is detained for a period without a judicial decision. Nor do other rules of criminal procedure provide for such a possibility. Moreover, Articles 10 § 2 and 109 § 4 of the Code of Criminal Procedure expressly require the court, prosecutor, investigator ... to immediately release anyone who is unlawfully held in custody beyond the time-limit established in the Code. Such is also the requirement of Article 5 §§ 3 and 4 of the European Convention ... which is an integral part of the legal system of the Russian Federation, pursuant to Article 15 § 4 of the Russian Constitution ...” 51. Verifying the compatibility of Article 466 § 1 of the CCP with the Russian Constitution, the Constitutional Court reiterated its established case-law to the effect that excessive or arbitrary detention, unlimited in time and without appropriate review, was incompatible with Article 22 of the Constitution and Article 14 § 3 of the International Covenant on Civil and Political Rights in all cases, including extradition proceedings. 52. In the Constitutional Court's view, the guarantees of the right to liberty and personal integrity set out in Article 22 and Chapter 2 of the Constitution, as well as the legal norms laid down in Chapter 13 of the CCP on preventive measures, were fully applicable to detention with a view to extradition. Accordingly, Article 466 of the CCP did not allow the authorities to apply a custodial measure without abiding by the procedure established in the CCP, or in excess of the time-limits fixed therein. 53. The Prosecutor General asked the Constitutional Court for an official clarification of its decision no. 101-O of 4 April 2006 (see above), for the purpose, in particular, of elucidating the procedure for extending a person's detention with the aim of extradition. 54. The Constitutional Court dismissed the request on the ground that it was not competent to indicate specific criminal-law provisions governing the procedure and time-limits on the keeping of a person in custody with the aim of extradition. That was a matter for the courts of general jurisdiction. 55. In this decision the Constitutional Court reiterated that Article 466 of the CCP did not imply that detention of a person on the basis of an extradition request did not have to comply with the terms and time-limits provided for in the legislation on criminal procedure. 56. In this ruling the Supreme Court reiterated that the arrest and detention of a person with the aim of extraditing him or her under Article 466 of the CCP should comply with the requirements of Article 108 of the CCP, and that detention pending extradition could be extended only in compliance with the requirements of Article 109 of the CCP. 57. UN General Assembly resolution 62/148 of 18 December 2007 (“Torture and other cruel, inhuman or degrading treatment or punishment” (UN Doc.:A/RES/62/148)) reads as follows: “The General Assembly ... 12. Urges States not to expel, return (refouler), extradite or in any other way transfer a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture, and recognizes that diplomatic assurances, where used, do not release States from their obligations under international human rights, humanitarian and refugee law, in particular the principle of non-refoulement ...” 58. In his interim report submitted in accordance with Assembly resolution 59/182 (UN Doc.: A/60/316, 30 August 2005), the Special Rapporteur of the Commission on Human Rights on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, reached the following conclusions: “51. It is the view of the Special Rapporteur that diplomatic assurances are unreliable and ineffective in the protection against torture and ill-treatment: such assurances are sought usually from States where the practice of torture is systematic; post-return monitoring mechanisms have proven to be no guarantee against torture; diplomatic assurances are not legally binding, therefore they carry no legal effect and no accountability if breached; and the person whom the assurances aim to protect has no recourse if the assurances are violated. The Special Rapporteur is therefore of the opinion that States cannot resort to diplomatic assurances as a safeguard against torture and ill-treatment where there are substantial grounds for believing that a person would be in danger of being subjected to torture or illtreatment upon return. 52. The Special Rapporteur calls on Governments to observe the principle of nonrefoulement scrupulously and not expel any person to frontiers or territories where they might run the risk of human rights violations, regardless of whether they have officially been recognised as refugees.” 59. Specifically referring to the situation regarding torture in Uzbekistan and returns to torture effected in reliance upon diplomatic assurances from the Uzbek authorities, the UN Special Rapporteur on Torture stated to the 2nd Session of the UN Human Rights Council on 20 September 2006: “The practice of torture in Uzbekistan is systematic, as indicated in the report of my predecessor Theo van Boven's visit to the country in 2002. Lending support to this finding, my mandate continues to receive serious allegations of torture by Uzbek law enforcement officials... Moreover, with respect to the events in May 2005 in Andijan, the UN High Commissioner for Human Rights reported that there is strong, consistent and credible testimony to the effect that Uzbek military and security forces committed grave human rights violations there. The fact that the Government has rejected an international inquiry into the Andijan events, independent scrutiny of the related proceedings, and that there is no internationally accepted account of the events, is deeply worrying. Against such significant, serious and credible evidence of systematic torture by law enforcement officials in Uzbekistan, I continue to find myself appealing to Governments to refrain from transferring persons to Uzbekistan. The prohibition of torture is absolute, and States risk violating this prohibition - their obligations under international law - by transferring persons to countries where they may be at risk of torture. I reiterate that diplomatic assurances are not legally binding, undermine existing obligations of States to prohibit torture, are ineffective and unreliable in ensuring the protection of returned persons, and therefore shall not be resorted to by States.” 60. Further referring to the situation regarding torture in Uzbekistan, the UN Special Rapporteur on Torture stated to the 3rd Session of the UN Human Rights Council on 18 September 2008: “741. The Special Rapporteur ... stressed that he continued to receive serious allegations of torture by Uzbek law enforcement officials... 743. Moreover, with respect to the events in May 2005 in Andijan, the UN High Commissioner for Human Rights reported that there is strong, consistent and credible testimony to the effect that Uzbek military and security forces committed grave human rights violations there. The fact that the Government has rejected an international inquiry into the Andijan events, and any independent scrutiny of the related proceedings, and that there is no internationally accepted account of the events, is deeply worrying. Even more so, given that no independent monitoring of human rights is currently being conducted. 744. In light of the foregoing, there is little evidence available, including from the Government that would dispel or otherwise persuade the Special Rapporteur that the practice of torture has significantly improved since the visit which took place in 2002...” 61. The UN High Commissioner for Refugees' Note on Diplomatic Assurances and International Refugee Protection published on 10 August 2006 reads as follows: 22. In general, assessing the suitability of diplomatic assurances is relatively straightforward where they are intended to ensure that the individual concerned will not be subjected to capital punishment or certain violations of fair trial rights as a consequence of extradition. In such cases, the wanted person is transferred to a formal process, and the requesting State's compliance with the assurances can be monitored. While there is no effective remedy for the requested State or the surrendered person if the assurances are not observed, non-compliance can be readily identified and would need to be taken into account when evaluating the reliability of such assurances in any future cases. 23. The situation is different where the individual concerned risks being subjected to torture or other cruel, inhuman or degrading treatment in the receiving State upon removal. It has been noted that 'unlike assurances on the use of the death penalty or trial by a military court, which are readily verifiable, assurances against torture and other abuse require constant vigilance by competent and independent personnel'. The Supreme Court of Canada addressed the issue in its decision in Suresh v. Canada (Minister of Citizenship and Immigration), contrasting assurances in cases of a risk of torture with those given where the person extradited may face the death penalty, and signalling '... the difficulty in relying too heavily on assurances by a state that it will refrain from torture in the future when it has engaged in illegal torture or allowed others to do so on its territory in the past. This difficulty becomes acute in cases where torture is inflicted not only with the collusion but through the impotence of the state in controlling the behaviour of its officials. Hence the need to distinguish between assurances regarding the death penalty and assurances regarding torture. The former are easier to monitor and generally more reliable than the latter.' 24. In his report to the UN General Assembly of 1 September 2004, the special Rapporteur of the UN Commission on Human Rights on torture and other cruel, inhuman or degrading treatment or punishment examined the question of diplomatic assurances in light of the non-refoulement obligations inherent in the absolute and non-derogable prohibition of torture and other forms of ill-treatment. Noting that in determining whether there are substantial grounds for believing that a person would be in danger of being subjected to torture, all relevant considerations must be taken into account, the Special Rapporteur expressed the view that: 'in circumstances where there is a consistent pattern of gross, flagrant or mass violations of human rights, or of systematic practice of torture, the principle of nonrefoulement must be strictly observed and diplomatic assurances should not be resorted to.'” 62. United States Department of State, 2009 Country Reports on Human Rights Practices – Uzbekistan, 11 March 2010. “... Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment Although the constitution and law prohibit such practices, law enforcement and security officers routinely beat and otherwise mistreated detainees to obtain confessions or incriminating information. Torture and abuse were common in prisons, pretrial facilities, and local police and security service precincts. Prisoners were subjected to extreme temperatures. Observers reported several cases of medical abuse, and one known person remained in forced psychiatric treatment. ... Authorities reportedly gave harsher than normal treatment to individuals suspected of extreme Islamist political sympathies, notably pretrial detainees who were alleged members of banned extremist political organizations Hizb ut-Tahrir (HT) or Nur. Local human rights workers reported that authorities often paid or otherwise induced common criminals to beat suspected extremists and others who opposed the government. Two human rights defenders who were arrested reported beatings in pretrial detention facilities. There were reports of politically motivated medical abuse. Victims could request through legal counsel that their cases be reviewed by an expert medical board. In practice, however, such bodies generally supported the decisions of law enforcement authorities. ... Prison and Detention Center Conditions Prison conditions remained poor and in some cases life threatening. There continued to be reports of severe abuse, overcrowding, and shortages of food and medicine. Tuberculosis and hepatitis were endemic in the prisons, making even short periods of incarceration potentially life-threatening. Family members frequently reported that officials stole food and medicine that were intended for prisoners. There were reports that authorities did not release prisoners, especially those convicted of religious extremism, at the end of their terms. Instead, prison authorities contrived to extend inmates' terms by accusing them of additional crimes or claiming the prisoners represented a continuing danger to society. These accusations were not subject to judicial review.” 63. The European Committee for the Prevention of Torture (“the CPT”), in its 15th General Report of 22 September 2005 on its activities covering the period from 1 August 2004 to 31 July 2005, expressed concern about reliance on diplomatic assurances in the light of the absolute prohibition on torture: “38. Reference was made in the Preface to the potential tension between a State's obligation to protect its citizens against terrorist acts and the need to uphold fundamental values. This is well illustrated by the current controversy over the use of 'diplomatic assurances' in the context of deportation procedures. The prohibition of torture and inhuman or degrading treatment encompasses the obligation not to send a person to a country where there are substantial grounds for believing that he or she would run a real risk of being subjected to such methods. In order to avoid such a risk in given cases, certain States have chosen the route of seeking assurances from the country of destination that the person concerned will not be ill-treated. This practice is far from new, but has come under the spotlight in recent years as States have increasingly sought to remove from their territory persons deemed to endanger national security. Fears are growing that the use of diplomatic assurances is in fact circumventing the prohibition of torture and ill-treatment. 39. The seeking of diplomatic assurances from countries with a poor overall record in relation to torture and ill-treatment is giving rise to particular concern. It does not necessarily follow from such a record that someone whose deportation is envisaged personally runs a real risk of being ill-treated in the country concerned; the specific circumstances of each case have to be taken into account when making that assessment. However, if in fact there would appear to be a risk of ill-treatment, can diplomatic assurances received from the authorities of a country where torture and ill-treatment is widely practised ever offer sufficient protection against that risk? It has been advanced with some cogency that even assuming those authorities do exercise effective control over the agencies that might take the person concerned into their custody (which may not always be the case), there can be no guarantee that assurances given will be respected in practice. If these countries fail to respect their obligations under international human rights treaties ratified by them, so the argument runs, why should one be confident that they will respect assurances given on a bilateral basis in a particular case? 40. In response, it has been argued that mechanisms can be devised for the post-return monitoring of the treatment of a person deported, in the event of his/her being detained. While the CPT retains an open mind on this subject, it has yet to see convincing proposals for an effective and workable mechanism. To have any chance of being effective, such a mechanism would certainly need to incorporate some key guarantees, including the right of independent and suitably qualified persons to visit the individual concerned at any time, without prior notice, and to interview him/her in private in a place of their choosing. The mechanism would also have to offer means of ensuring that immediate remedial action is taken, in the event of it coming to light that assurances given were not being respected.”
| 1
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train
|
001-102368
|
ENG
|
MNE
|
ADMISSIBILITY
| 2,010
|
AJDARPASIC v. MONTENEGRO
| 4
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Inadmissible
|
Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano
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1. Following the financial crisis in the former Socialist Federal Republic of Yugoslavia, as well as the subsequent collapse of the banking system in the 1990s, in 1998, 2002, and 2003 the Federal Republic of Yugoslavia, as well as the respondent State itself, adopted specific legislation accepting the conversion of foreign currency deposits in certain banks, including the Montenegrobanka and the Jugobanka in Podgorica, into a public debt. The legislation set the time-frame (2017) and the amounts, including interest, to be paid back to the banks’ former clients (see paragraphs 14-27 below). The 1998 and 2002 legislation also explicitly provided that judicial enforcement proceedings instituted on the basis of judgments in respect of the said banks were to be discontinued (“obustavljeni”; see paragraphs 16 and 18 below). 2. The applicants are Mr. Avdulah Ajdarpašić (the first applicant), a Montenegrin national who was born in 1948 and lives in Stuttgart, Germany, and Mr Milorad Kadić (the second applicant), also a Montenegrin national who was born in 1936 and lives in Podgorica. 3. The facts of the case, as submitted by the applicants, may be summarised as follows. 4. On 20 May 1992 the Court of First Instance (Osnovni sud) in Podgorica rendered a judgment in favour of the applicant, ordering the Montenegrobanka to pay him: (i) 60,198.36 German Marks (“DEM”) on account of his foreign-currency savings; (ii) the accompanying interest based on the DEM sight deposit rate (domicilna kamata na deviznu štednju po viđenju); and (iii) 211,154 Yugoslav dinars (“YUD”) for legal costs. 5. On 16 September 1992 the High Court (Viši sud) in Podgorica upheld this judgment and on 23 December 1992 the applicant obtained an enforcement order (rješenje o izvršenju). 6. On 5 September 2005 the Montenegrin Ombudsman (Zaštitnik ljudskih prava i sloboda), following the applicant’s enquiry, informed him that pursuant to the 1998 legislation all judicial proceedings relating to the “old-foreign currency savings”, including enforcement proceedings, had to be discontinued, and that the payment of these savings was instead regulated by the Act on the Citizens’ Foreign-Currency Savings 2003 (see paragraphs 14-27 below). 7. On 21 February 2006 the Court of First Instance confirmed that the enforcement of the judgment rendered in favour of the applicant had been discontinued, just like the enforcement of all the other judgments relating to the old foreign-currency savings. At the same time the applicant was advised to seek the payment of his savings in accordance with the Act on the Citizens’ Foreign-Currency Savings 2003. 8. There is no information in the case file as to whether the applicant actually did so. 9. On 22 March 1993 the Court of First Instance in Podgorica rendered a judgment in favour of the applicant, ordering the Jugobanka in Podgorica to pay him: (i) DEM 4,128.26 and USD 2,396.96 on account of his foreign-currency savings; (ii) the accompanying interest based on the bank’s sight deposit rate (u visini kamatne stope koju tužena obračunava na devizne štedne uloge po viđenju); and (iii) YUD 387,346 for legal costs. On an unspecified date thereafter this judgment became final, and on 4 May 1993 the applicant obtained an enforcement order against the Jugobanka. 10. On an unspecified date insolvency proceedings were initiated in respect of the Jugobanka, but on 19 June 2002 the applicant’s claim (potraživanje) was recognised by the Jugobanka’s insolvency administrator (stečajni upravnik). On 21 June 2004 the applicant’s claim was converted into 4, 454.63 euros. 11. On 23 August 2004 the applicant collected the amount statutorily envisaged for 2004 (see paragraph 23 below). 12. On 2 November 2004 the applicant renewed his request for enforcement of the above judgment, this time in respect of the respondent State. 13. Between 18 May 2005 and 25 July 2008 the enforcement judge (izvršni sudija) issued three enforcement orders in favour of the applicant. All three orders were later quashed by a three-judge panel (vijeće) of the Court of First Instance on the grounds that the State had only accepted to gradually pay back the deposits in accordance with the Act on the Citizens’ Foreign-Currency Savings 2003. No instantaneous payment of the entire amount was, therefore, legally possible. 14. Articles 1, 2, 3 and 4 provided that all foreign-currency savings deposited with the “authorised banks”, including the Montenegrobanka and the Jugobanka in Podgorica, before 18 March 1995 were to become public debts. 15. Under Article 10 the State’s responsibility in that respect was to be fully honoured by 2012 through the payment of specified amounts, plus interest, and according to a certain time-frame. 16. Article 22 provided that, as of the date of this Act’s entry into force (12 December 1998), “all pending lawsuits, including judicial enforcement proceedings, aimed at the collection of the foreign currency covered by this Act shall be discontinued”. 17. This Act repealed the Act described above. In doing so, however, it explicitly acknowledged as part of public debt all deposits previously recognised as such. It modified the time-frame for honouring the debt in question (from 2012 to 2016) and specified amended amounts, plus interest, to be paid annually. The annual amounts were EUR 276,10 in 2002, EUR 380 in 2003 and EUR 530 in 2004, while the exact amount of the remaining instalments was to be calculated applying a geometrical progression rate of 10% and a corresponding coefficient for that particular year, the coefficients themselves also increasing annually. The minimum such amount could not be less than EUR 500. 18. Article 36 reaffirmed that “all lawsuits aimed at the collection of the foreign-currency savings covered by this Act, including judicial enforcement proceedings, shall be discontinued.” 19. This Act entered into force on 4 July 2002. It was subsequently amended on two occasions, but these amendments concerned peripheral issues unrelated to the savers’ above-described status. 20. Article 3, inter alia, defines “foreign-currency savings” as all foreign currency deposited by natural persons with one of the “authorised banks based in the territory of the Republic of Montenegro” as recognised as a public debt of the Federal Republic of Yugoslavia (see paragraphs 14 and 17 above). 21. Pursuant to Article 5 § 1 as of the date of this Act’s entry into force Montenegro shall assume the obligations of the authorised banks towards natural persons in respect of their foreign-currency savings. 22. Article 5b explicitly provides that Montenegro shall also assume the obligations of the banks in respect of which insolvency proceedings were initiated. 23. Articles 14 and 15 provide that Montenegro shall honour this debt by 2017 and specify the amounts, and interest, to be paid annually in euros. The annual amounts were EUR 380 in 2004 and EUR 530 in 2005, while the exact amount of the remaining instalments shall be calculated applying a geometrical progression rate of 10% and a corresponding coefficient for that particular year, the coefficients themselves also increasing annually. The minimum such amount may not be less than EUR 500 should the instalment be less than that. 24. Pursuant to Article 18, the banks’ clients may, in advance of the said time-frame and under certain conditions, make use of their deposits converted into Government bonds in order to pay taxes, buy State property or take part in the privatisation of State-owned businesses. 25. Under Articles 16 and 17 former clients of the banks in question can also sell the said bonds to other natural or legal persons. Such trading is exempt from property taxation and capital gains taxation. 26. Articles 16 § 5 and 18 § 2 provide that the Government of Montenegro shall adopt additional technical regulations concerning the bonds in question. 27. This Act entered into force on 9 October 2003 and its amendments on 28 February 2004.
| 0
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train
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001-111208
|
ENG
|
BGR
|
ADMISSIBILITY
| 2,012
|
HADZHIYSKA v. BULGARIA
| 3
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Inadmissible
|
David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
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1. The applicant, Ms Magdalena Angelova Hadzhiyska, is a Bulgarian national who was born in 1933 and lives in Lesichovo. She was represented before the Court by Mr M. Ekimdzhiev, Ms K. Boncheva and Ms G. Chernicherska, lawyers practising in Plovdiv. 3. The applicant’s village is situated on the banks of Topolnitsa river, at about fifteen kilometres downstream from Topolnitsa Dam. 4. On 5 and 6 August 2006, following heavy rain, the river broke its banks and flooded the applicant’s house. The water ruined a stone fence, a shed and a summer kitchen, and carried away furniture, wood, home-canned food, and other chattels. The house’s cellar and basement were damaged by dampness. 5. On 18 April 2007 the applicant brought a claim for damages under section 1 (1) of the State Responsibility for Damage Act 1988 against the Ministry of Environment and Waters and the Governor of Pazardzhik Region. She alleged that the flood water had carried away trees and branches which had cluttered the riverbed. As the defendants had failed to clean it, this had impeded the flow of water and had caused flooding. She also alleged that no embankments or other protective facilities had been built to protect her village from flooding, and that no monitoring or alert systems had been put in place. She claimed that those omissions had been in breach of the defendants’ obligations under several provisions of the Waters Act 1999 that expressly envisaged such measures. 6. Having initially decided to proceed with the case, in a decision of 4 August 2008, the Pazardzhik Administrative Court dismissed the applicant’s claim as inadmissible. It held that the administrative courts were not competent to examine it because the alleged omissions of the defendants did not constitute administrative action within the meaning of Article 203 § 1 of the Code of Administrative Procedure and section 1 (1) of the 1988 Act. The relations between the applicant and the authorities in connection with the flood were not characterised by an exercise of authority and were therefore not governed by the rules of administrative law. The impugned omissions of the authorities did not form part of their administrative activities. 7. On appeal, on 11 November 2008 the Supreme Administrative Court upheld that decision, with almost identical reasoning. It went on to say that the applicant could bring a claim before the civil courts.
| 0
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train
|
001-113752
|
ENG
|
RUS
|
COMMITTEE
| 2,012
|
CASE OF VOROBYEV v. RUSSIA
| 4
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Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Adversarial trial)
|
Anatoly Kovler;Erik Møse;Linos-Alexandre Sicilianos
|
4. The applicant was born in 1955 and lives in Yugorsk, a town in the Tyumen region. 5. On 29 May 2002 the applicant brought a court action against his former employer seeking compensation for damage to health related to professional hardship. 6. On 29 November 2004 Yugorskiy District Court (Khanty-Mansiyskiy Region) dismissed his claim as manifestly ill-founded. 7. On 14 December 2004 the applicant lodged an appeal against the judgment of 29 November 2004. 8. According to the Government, on 30 December 2004 the District Court sent a letter to the applicant informing him that the appeal hearing had been scheduled for 8 February 2005. 9. On 8 February 2005 the Khanty-Mansiyskiy Regional Court held a hearing which the applicant did not attend. The adverse party’s representative attended the hearing and made submissions. The Regional Court upheld the judgment of 29 November 2004. 10. On an unspecified date the applicant applied for a supervisory review of the appeal decision of 8 February 2005. 11. By a decision of 14 March 2005 a judge of the Regional Court refused to examine his application on the grounds that the enclosed copy of the appeal decision of 8 February 2005 had not been certified by the relevant court. 12. For a summary of relevant domestic law, as worded at the material time, see Gusak v. Russia (no. 28956/05, § 20, 7 June 2011).
| 1
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train
|
001-110921
|
ENG
|
SWE
|
CHAMBER
| 2,012
|
CASE OF S.F. AND OTHERS v. SWEDEN
| 3
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Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Iran)
|
André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska
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6. The applicants were born in 1977, 1979 and 2009 respectively and are currently in Sweden. 7. On 10 September 2007 the first and second applicants, a married couple, arrived in Sweden and applied to the Migration Board (Migrationsverket) for asylum, residence and work permits. Applications for refugee status and travel documents were lodged with written submissions dated 28 February 2008. 8. The applicants submitted that they had lived together in Tehran. The first applicant is a Kurdish Sunni Muslim and the second applicant a Persian Shia Muslim. They both had a university degree and had been working, the first applicant as a machine supervisor at a car factory and the second applicant as a teacher, before they left Iran. The first applicant had also been a musician, and he used to perform and sing political music for the Kurdish cause in Iran. He had played at several concerts, which had been criticised by the authorities. He had also been an active athlete as an Iranian kick-boxing champion. 9. The first applicant claimed that he had been politically active in Iran. He had always been interested in the Kurdish issue and had once, in 2003, been arrested and questioned by Etalat, the Iranian security forces, for being involved in a discussion on this topic. Subsequently, he had been sentenced to 12 months’ imprisonment by the Mojtama Ghazani e Ghods court. He had served one month in Qasr prison, before being released on bail. Despite the sentence, he had been able to keep his job and stay in Tehran. 10. Approximately one year before they left Iran, the first applicant had been approached by a colleague and close friend, who was a member of the Democratic Party of Iranian Kurdistan (KDPI), and asked if he was interested in supporting and working for the KDPI. He had accepted the proposition and started to disseminate leaflets, compact discs and other information about the party and also to recruit new members. He had sympathised with the party but had not been a full member. His only contact with the party had been through the colleague. 11. On 26 August 2007 the first applicant had witnessed the arrest of a work colleague by Etalat outside their workplace. He had then, out of fear, decided to leave Iran as he assumed that his friend would reveal his contacts under torture. He had left work, gone to the bank to withdraw his savings and then home to tell his wife and to pack their most important belongings. The applicants had travelled first to Karaj, where the second applicant’s parents lived and where they also left some personal belongings and documents, and then to Sardesht, where they stayed with the first applicant’s grandparents for two nights. 12. On 27 August 2007 the first applicant had called the doorman in their apartment building and been told that four men from Etalat had come looking for the applicants. Etalat had broken into their apartment, where allegedly they found evidence and KDPI-related documents which the applicants had left behind. 13. On the night between 28 and 29 August 2007, the applicants had crossed the border into Turkey and then continued through Europe by truck. Since coming to Sweden they had been in touch with the first applicant’s father, who had claimed that he had been threatened by Etalat and that they had been searching for the first applicant. On several occasions, Etalat had approached the father in his home and taken him to their head office for interrogation. 14. The second applicant submitted that she had not been politically involved and that she knew little of the extent of her husband’s involvement in political activities while they were living in Iran. She had, however, helped him to distribute some materials from the party to friends and relatives. 15. In the initial contact with the Migration Board the applicants also submitted that they had both been politically active in Sweden. They had taken part in several meetings for the Kurdish cause and were also active in news programmes that were broadcast on a satellite channel banned in Iran and on internet blogs. 16. The first applicant had contacted members of the KDPI when he arrived in Sweden and, soon after his arrival, he had participated in an information meeting concerning the party’s 14th Congress. The applicant submitted photographs of his attendance at the meeting before the Migration Board. He also submitted a certificate issued by the KDPI office in Paris on 15 April 2008, stating that the first applicant was a supporter of the party and that his life would be in danger if he were to return to Iran. 17. The second applicant had started in 2008 to work regularly for Newroz TV, a Kurdish TV channel which was banned in Iran and considered critical of the Iranian regime. 18. On 23 May 2008 the Migration Board rejected the applicants’ request for asylum. The Board found that the applicants’ story lacked credibility in several aspects. Leaving the credibility issues aside, the Board also found that the applicants had only been active in the KDPI at a very low level and that only activists higher up in the hierarchy would be of any interest to the Iranian authorities. Furthermore, the Board found that the applicants had not been very active since their arrival in Sweden and had only participated in general meetings. 19. The first and second applicants proceeded to the Migration Court (Migrationsdomstolen) where they maintained their story and added that several of their friends had been arrested since they had left Iran and the first applicant’s father had received several threatening telephone calls from Etalat. In July 2008 the first applicant had been interviewed on Newroz TV about himself, sports and music, and political activity. The second applicant had started to work for Newroz TV as a translator, newscaster and journalist on a daily basis. She had researched and reported, inter alia, on the hidden mass killings in Iranian prisons. 20. In September 2008 they had become members of a European support committee for Kurdish prisoners on hunger strike in Iran. Until 9 October 2008, when the hunger strike ended, the first applicant had worked actively to collect support from different NGOs and to spread the information on human rights violations in Iran. The issue was brought up by the European Parliament, on the initiative of the committee. The second applicant, as she could speak English, Farsi and Sorani fluently, had become the universal spokesperson for the committee. During the hunger strike, she had been interviewed by several Kurdish media, Newroz TV and Roj TV and both applicants had participated in debates on human rights violations in Iran on blogs and several internet sites. During another hunger strike in Stockholm, in October 2008, the first applicant had also been interviewed by the Kurdish media, Newroz TV and Roj TV, and both applicants had participated on blogs and several internet sites. They claimed that their involvement with, inter alia, Newroz TV must have drawn the attention and interest of Iranian authorities. They submitted a letter from the first applicant’s father, compact discs containing interviews with them from Newroz TV and several reports and certificates from NGOs. 21. By a decision on 14 January 2009 the Migration Court rejected the applicants’ request to translate the submitted compact discs containing statements about the Iranian government. 22. On 3 April 2009 the Migration Court, after an oral hearing of the case, rejected the applicants’ appeal. The applicants’ story about their activities in Iran was considered stringent and substantiated by written evidence and the court found no reason to question the credibility of the story. However, reports showed that mainly high-ranking executives or militant members of the KDPI were subjected to violent acts. It was not considered probable that the Iranian authorities would show an interest in someone at such a low level as the first applicant. Furthermore, the political activities in Sweden had been limited in scope and the applicants had not been able to show that these activities were of any interest to the authorities. The submitted letter from the first applicant’s father and the certificate from the KDPI’s office in France were considered very general or of low value as evidence. Having regard to relevant country information and to the fact that the Iranian authorities were not interested in activities at a low level, the court found that there was no indication that the applicants had come to the direct attention of the Iranian authorities. 23. On 19 June 2009 the third applicant was born. 24. Before the Migration Court of Appeal the first applicant additionally submitted that he had been actively involved for the Kurdish cause on Newroz TV, where he had expressed criticism and continuously informed, inter alia, about the situation for Kurds and the severe human rights violations in Iran. He had also been interviewed on TV concerning his own reasons for leaving Iran. Newroz TV was allegedly monitored by the Iranian intelligence services. The second applicant submitted that, in addition to her work for Newroz TV, she had been working for other Kurdish broadcasting services, that she had performed approximately 30 interviews and that she had worked on translations for Amnesty International’s international secretariat in London. They submitted that they had been involved in substantial political sur place activity and that this activity was known to the Iranian authorities. 25. On 8 July 2009 the Migration Court of Appeal (Migrations-överdomstolen) refused leave to appeal. 26. Subsequently, the applicants turned again to the Migration Board to stop the expulsion. On 22 October 2009 the Board decided not to grant a new examination. This decision was upheld by the Migration Court on 28 January 2010 and the Migration Court of Appeal refused leave to appeal on 10 March 2010. 27. In August, September and October 2010, the applicants published several articles in “Kurdish Perspective”. The second applicant argued, in the articles, in favour of uniting opposition groups against the Islamic government of Iran. She argued that there were many racial and religious groups in Iran, all of which were oppressed by the Iranian authorities, who tried to take advantage of this variety and distract opposition activities. Several critical articles were also published on various internet sites. 28. In 2010 and 2011 the applicants signed several public petitions to free human rights activists in Iran on an internet site. 29. In 2011, the second applicant was involved in promoting the imprisoned Kurdish Mr. Kabudwand as candidate for the Nobel Peace Prize. In the nomination process, the second applicant was named as a member of the nominating committee on several internet sites. She was interviewed about his candidacy on one of the most popular opposition sites on 15 March 2011. 30. In Sweden, the first applicant had also become a full member of the KDPI. 31. The provisions mainly applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the Aliens Act (Utlänningslagen, 2005:716 – hereafter referred to as “the Aliens Act”). 32. Chapter 5, Section 1, of the Aliens Act stipulates that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. 33. According to Chapter 4, Section 1, of the same Act, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, membership of a particular social group, religious or political beliefs, grounds of gender, sexual orientation and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, Section 2, of the Aliens Act). 34. As regards the enforcement of a deportation or expulsion order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, Section 1, of the Aliens Act). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, Section 2, of the Aliens Act). 35. Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This applies, under Chapter 12, Section 18, of the Aliens Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to treatment as referred to in Chapter 12, Sections 1 and 2, of the Aliens Act or there are medical or other special reasons why the order should not be enforced. If a residence permit cannot be granted under this provision, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, Sections 1 and 2, of the Aliens Act, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, Section 19, of the Aliens Act). 36. After the elections in Iran on 12 June 2009 the Political Affairs Committee of the PACE on 1 October 2009 adopted a declaration in which it considered the violent reactions of the Iranian authorities to peaceful protests to be a serious breach of Iranian citizens’ human rights. It also called upon governments of other countries not to expel Iranian citizens to Iran. 37. In a document released by Freedom House on 18 April 2011 (Freedom on the Net – Iran, p. 1) it was stated: “Since the protests that followed the disputed presidential election of June 12, 2009, the Iranian authorities have waged an active campaign against internet freedom, employing extensive and sophisticated methods of control that go well beyond simple content filtering. These include tampering with internet access, mobile-telephone service, and satellite broadcasting; hacking opposition and other critical websites; monitoring dissenters online and using the information obtained to intimidate and arrest them...” 38. The United States Department of State 2010 Human Rights Report: Iran, section 2: Freedom of Speech and Press/Internet Freedom (8 April 2011) noted that: “The government monitored Internet communications, especially via social networking Web sites such as Facebook, Twitter and Youtube, and collected individuals’ personally identifiable information in connection with peaceful expression of views. The government threatened, harassed, and arrested individuals who posted comments critical of the government on the internet...” 39. The U.K. Home Office’s Operational Guidance Note – Iran, dated November 2011, stated the following: “3.7.11 ... There is a real risk that high profile activists and political opponents who have come to the attention of the authorities would on return to Iran face a real risk of persecution and should be granted asylum for reason of his or her political opinion. 3.7.12 Depending on the particular circumstances, some persons who do not have a political profile- which would include for example student demonstrators or other anti-government protestors- are likely to be perceived by the authorities in Iran to oppose the regime and may similarly face a real risk of persecution or ill-treatment on return. Case owners must consider carefully whether the personal circumstances of the individual concerned are such that he or she would face a real risk of persecution on return to Iran. 3.7.13 Those who have engaged in opposition political activity in the U.K. might, depending on their level of involvement, similarly face a real risk of persecution on return to Iran on account of that activity and in such cases a grant of asylum will also be appropriate. The test to be applied in such cases is set out in detail in BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC). 3.12.9 Kurdish opposition groups suspected of separatist aspiration, such as the Democratic Party of Iranian Kurdistan (KDPI), are brutally suppressed. 3.12.10 Politically active groups and individuals are considered a threat to national security by the Iranian government. If the Iranian authorities consider a person to be working against national security, (the person may for example be accused of being a spy or of cooperating with an oppositional religious, ethnic or political group), they may face severe punishment ranging from ten years’ imprisonment to execution. For instance, being in possession of a CD, a pamphlet or something similar made by the Kurdish Democratic Party of Iran (KDPI), Komala or other Kurdish organisations, may be considered as an act against national security. This form of persecution for political activities is a problem all over Iran. However, the authorities are watching Kurdish areas and Tehran more carefully than other areas. 3.12.12 There is no evidence to suggest that an applicant of Kurdish ethnic origin, in the absence of any other risk factor, would on return face a real risk of serious mistreatment simply on the account of his or her ethnic origin alone. Applicants who are able to demonstrate that they are members or supporters of the KDPI, Komala, or active members of PJAK, and who are known to the authorities as such, will be at real risk of persecution and a grant of asylum will be appropriate unless there are case-specific reasons why it would not be.” 40. Amnesty International, in its Amnesty International Annual Report 2011 – Iran, stated the following: “The authorities maintained severe restrictions on freedom of expression, association and assembly. Sweeping controls on domestic and international media aimed at reducing Iranians’ contact with the outside world were imposed. Individuals and groups risked arrest, torture and imprisonment if perceived as co-operating with human rights and foreign-based Persian-language media organizations. Political dissidents, women’s and minority rights activists and other human rights defenders, lawyers, journalists and students were rounded up in mass and other arrests and hundreds were imprisoned. Torture and other ill-treatment of detainees were routine and committed with impunity. Women continued to face discrimination under the law and in practice. The authorities acknowledged 252 executions, but there were credible reports of more than 300 other executions . ... The authorities continued to restrict access to outside sources of information such as the internet. International radio and television broadcasts were jammed. In January, the authorities banned contact by Iranians with some 60 news outlets and foreign-based organizations. Those willing to speak to the few large Persian-language media outlets on human rights issues were threatened or harassed by security officials . ... The authorities banned newspapers and student journals and prosecuted journalists whose reporting they deemed "against the system". Wiretapping and intercepting of SMS and email communications were routine. A shadowy "cyber army", reportedly linked to the Revolutionary Guards, organized attacks on domestic and foreign internet sites deemed to be anti-government, while other sites, including some associated with religious leaders, were filtered ...” 41. The U.K. Foreign and Commonwealth Office in its Human Rights and Democracy: The 2010 Foreign & Commonwealth Office Report – Iran, (2011), stated: “The Iranian authorities continued to actively censor the internet, restricting access to wide range of sites including Facebook and YouTube and targeting bloggers and online journalists. The military-run Cyber Army was reported to have taken a leading role in monitoring and disrupting internet sites and other online tools, including email and blog sites.” 42. The Swedish Migration Board, in its legal position document (Rättsligt ställningstagande), regarding the determination of individual risk for minorities and other groups in Iran and also the refugee status for individuals with regard to sur place activity (31 October 2011) stated that it must be considered that the Iranian regime is interested in internet users and activity abroad. Its ability to track down and monitor Iranians’ use of internet and other activities abroad is remarkably high and Iran is considered to be one of the countries which go the furthest in this respect . 43. In its World Report 2012, Human Rights Watch stated the following: “In 2011 Iranian authorities refused to allow government critics to engage in peaceful demonstrations. In February, March, April and September security forces broke up large-scale protests in several major cities... There was a sharp increase in the use of death penalty. The government continues targeting civil society activists, especially lawyers, rights activists, students, and journalists.” 44. In a judgment of the U.K. Court of Appeal in SS (Iran) [2008] EWCA Civ 310, the issue of sur place activities was considered. The case concerned an appeal by an Iranian of Kurdish ethnicity who claimed to have been involved with Komala, a Kurdish political party, in Iran and that Komala leaflets had been found in his home. He had said that after fleeing Iran and applying for asylum he had become more involved with Komala. A photograph of him had been posted on the internet and a film sequence of a demonstration he had attended in London had been broadcast on Komala Television in Sweden. The Court of Appeal considered that the Immigration Judge’s conclusions on the credibility of the appellant were not sustainable, however, the court did also consider the appellant’s sur place activities. Bearing in mind that the burden of proof lay on the appellant, Lord Neuberger found that the Immigration Judge had been entitled to reach the conclusion he did. He commented: “There must be a limit as to how far an applicant for asylum is entitled to rely upon publicity about his activities in the UK against the government of the country to which he is liable to be returned. It seems to me that it is not enough for such an applicant simply to establish, as here, that he was involved in activities which were relatively limited in duration and importance, without producing any evidence that the authorities would be concerned about them, or even that they were or would be aware of them.” 45. However, in YB (Eritrea) v. Secretary of State for the Home Department [2008] EWCA Civ 360, which was handed down on 15 April 2008, the Court of Appeal took the following approach to the issue of sur place activities. The case involved an Eritrean asylum seeker who claimed to have been active in support of the opposition Eritrean Democratic Party whilst in the United Kingdom. The Court of Appeal again remitted the issues arising from sur place activities to be heard before a differently constituted Asylum and Immigration Tribunal, which stated: “... [T]he Tribunal, while accepting that the appellant’s political activity in this country was genuine, were not prepared to accept in the absence of positive evidence that the Eritrean authorities had ‘the means and the inclination’ to monitor such activities as a demonstration outside their embassy, or that they would be able to identify the appellant from photographs of the demonstration. In my judgment, and without disrespect to what is a specialist tribunal, this is a finding which risks losing contact with reality. Where, as here, the tribunal has objective evidence which ‘paints a bleak picture of the suppression of political opponents’ by a named government, it requires little or no evidence or speculation to arrive at a strong possibility, - and perhaps more – that its foreign legations not only film or photograph their nationals who demonstrate in public against the regime but have informers among expatriate oppositionist organisations who can name the people who are filmed or photographed. Similarly it does not require affirmative evidence to establish a probability that the intelligence services of such states monitor the internet for information about oppositionist groups. The real question in most cases will be what follows for the individual claimant. If, for example, any information reaching the embassy is likely to be that a claimant identified in a photograph is a hanger-on with no real commitment to the oppositionist cause, that will go directly to the issue flagged up by art 4(3)(d) of the [Qualification Directive 2004/83/EC].” 46. In a more recent judgment of the U.K. Upper Tribunal in BA (Demonstrators in Britain – risk on return) Iran CG [2011] UKUT 36 (IAC), the tribunal gave a new “country guidance” determination on returns to Iran in light of the post-presidential election violence. The case concerned an Iranian national’s sur place activities in the U.K. The Court considered the appellant to be a demonstrator whom the Iranian authorities would particularly wish to identify and that there was a real risk that they would be able to do so. Additionally, because of the nature of his association with Bamdad e Iran there was also a real risk that he would face ill-treatment which would amount to persecution because of his political beliefs. The Court stated, inter alia, the following. “1 Given the large numbers of those who demonstrate here and the publicity which demonstrators receive, for example on Facebook, combined with the inability of the Iranian Government to monitor all returnees who have been involved in demonstrations here, regard must be had to the level of involvement of the individual here as well as any political activity which the individual might have been involved in Iran before seeking asylum in Britain. 2 (a) Iranians returning to Iran are screened on arrival. A returnee who meets the profile of an activist may be detained while searches of documentation are made. Students, particularly those who have known political profiles are likely to be questioned as well as those who have exited illegally. (b) There is not a real risk of persecution for those who have exited Iran illegally or are merely returning from Britain. The conclusions of the Tribunal in the country guidance case of SB (risk on return – illegal exit) Iran CG [2009] UKAIT 00053 are followed and endorsed. (c) There is no evidence of the use of facial recognition technology at the Imam Khomeini International airport, but there are a number of officials who may be able to recognize up to 200 faces at any one time. The procedures used by security at the airport are haphazard. It is therefore possible that those whom the regime might wish to question would not come to the attention of the regime on arrival. If, however, information is known about their activities abroad, they might well be picked up for questioning and/or transferred to a special court near the airport in Tehran after they have returned home. 3 It is important to consider the level of political involvement before considering the likelihood of the individual coming to the attention of the authorities and the priority that the Iranian regime would give to tracing him. It is only after considering those factors that the issue of whether or not there is a real risk of his facing persecution on return can be assessed.” A number of factors were considered and placed under four main heads: (i) the type of sur place activity involved; (ii) the risk that a person will be identified as engaging in it; (iii) the factors triggering inquiry on return of the person and; (iv) in the absence of a universal check on all entering the country, the factors that would lead to identification at the airport on return or after entry. 47. In a recent judgment of the Swedish Migration Court of Appeal of 16 September 2011, the court considered the need for international protection based on sur place activity. The court stated that a real risk to be subjected to severe ill-treatment can be based on an applicant’s sur place activity and that a comprehensive examination of all circumstances has to be made to determine such a risk. It was considered to be of particular importance whether the claimed activity was an expression and a continuation of opinions already founded in the country of origin. 48. The Swedish Migration Board, in its legal statement of 31 October 2011(as referred to above), recognised that a risk based on sur place activity can constitute grounds for refugee status and asylum and listed the following factors to be considered in such assessment: “1. Whether the person has been politically or religiously active also in his country of origin. It is of importance for the determination whether a need for international protection has occurred sur place if the claimed activity is an expression and a continuation of an opinion already founded in the country of origin. The starting point should be that the requirements are higher regarding the extent of sur place activity if it has only occurred in Sweden. 2. Whether the political activity and its extent are of interest to the Iranian state. The activity must be sufficiently serious in nature and involve behaviour which would generally be seen to displease the Iranian regime. The assessment should be based on the nature and extent of the activity and should take into consideration the Iranian approach to such activity according to current country information, the degree of exposure in Sweden and the possible subsequent risk on return to Iran. 3. Whether the activity has or may come to the knowledge of the Iranian state. The asylum seeker has to make plausible that the activity has or may come to the knowledge of the Iranian authorities. To this end he must, in the absence of other evidence, provide a clear and coherent story supported by current country information.”
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train
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001-105764
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ENG
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RUS
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CHAMBER
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CASE OF LIU v. RUSSIA (No. 2)
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Remainder inadmissible;Violation of Art. 8;Non-pecuniary damage - award
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Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
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5. The applicants are a family comprising the husband and wife (the first and second applicants) and their two children (the third and fourth applicants). They were born in 1968, 1973, 1996 and 1999 respectively and live in the town of Sovetskaya Gavan in the Khabarovsk Region. 6. In 1994 the first applicant arrived in Russia with a valid visa and married the second applicant. In November 1996, after his visa had expired, the first applicant was deported to China. 7. In 2001 the first applicant obtained a work visa valid until 1 August 2002 and resumed his residence in Russia. The visa was later extended until 1 August 2003. 8. On 24 July 2003 the first applicant applied for a residence permit. 9. On 22 July 2004 the police department of the Khabarovsk Region rejected his application by reference to section 7 § 1 (1) of the Foreign Nationals Act (see paragraph 47 below). No further reasons were provided. 10. The first and the second applicants challenged the refusal before a court. They complained, in particular, that the police department of the Khabarovsk Region had not given any reasons for the refusal. The first applicant had never been charged with any criminal offence or engaged in any subversive activities. The applicants also claimed that the refusal had interfered with their right to respect for their family life and had caused them non-pecuniary damage. 11. On 4 November 2004 the Tsentralniy District Court of Khabarovsk found that the decision of 22 July 2004 had been lawful and rejected the applicants’ claim in respect of non-pecuniary damage. It found that the police department of the Khabarovsk Region had received information from the Federal Security Service that the first applicant posed a national security risk. That information was a State secret and could not be made public. 12. On 18 January 2005 the Khabarovsk Regional Court upheld the judgment of 4 November 2004 on appeal. It reiterated that, according to the information from the Federal Security Service, the first applicant posed a national security risk. That information was a State secret and was not subject to judicial scrutiny. 13. On 3 February 2005 the police department of the Khabarovsk Region prepared a decision that the first applicant’s presence on Russian territory was undesirable and submitted it to the head of the Federal Migration Service for approval. The draft decision indicated that the first applicant had been unlawfully resident on Russian territory and had been repeatedly fined under Article 18.8 of the Administrative Offences Code (see paragraph 50 below) for his failure to leave Russia after the expiry of the authorised residence period. On 22 March 2005 the head of the Federal Migration Service confirmed the decision and it became enforceable. 14. On 22 August 2005 the police department of the Khabarovsk Region asked the Federal Migration Service to order the first applicant’s deportation. On 12 November 2005 the head of the Federal Migration Service ordered the first applicant’s deportation by reference to section 25.10 of the Entry Procedure Act (see paragraph 51 below). No further reasons were provided. The applicants were not informed of the decision until 12 December 2005. 15. On 25 November 2005 the first and second applicants lodged an application with the Court under Article 34 of the Convention. They complained, in particular, that the refusal to grant a residence permit to the first applicant and the subsequent decision to deport him to China had entailed a violation of the right to respect for their family life. 16. In its judgment of 6 December 2007 the Court found a violation of Article 8 of the Convention (see Liu v. Russia, no. 42086/05, 6 December 2007). It found that the applicants’ relationship amounted to family life and that the refusal to grant the first applicant a residence permit and his deportation order constituted interference with the applicants’ right to respect for their family life. That interference had a basis in domestic law, namely section 7 § 1 (1) of the Foreign Nationals Act and section 25.10 of the Entry Procedure Act. 17. However, the Court noted that the domestic courts were not in a position to assess effectively whether the decision to reject the first applicant’s application for a residence permit was justified, because it was based on classified information. The failure to disclose the relevant information to the courts deprived them of the power to assess whether the conclusion that the first applicant constituted a danger to national security had a reasonable basis in fact. It followed that the judicial scrutiny was limited in scope and did not provide sufficient safeguards against arbitrary exercise of the wide discretion conferred by domestic law on the Ministry of Internal Affairs and the Federal Security Service in cases involving national security. 18. As to the deportation order against the first applicant, the Court observed that it had been issued by the Federal Migration Service on the initiative of a local police department. Both agencies were part of the executive and took such decisions without hearing the foreign national concerned. It was not clear whether there was a possibility of appealing against those decisions to a court or other independent authority offering guarantees of an adversarial procedure and competent to review the reasons for the decisions and relevant evidence. 19. The Court concluded that the interference with the applicants’ family life was based on legal provisions that did not give an adequate degree of protection against arbitrary interference and therefore did not meet the Convention’s “quality of law” requirements. Accordingly, in the event of the deportation order against the first applicant being enforced, there would be a violation of Article 8. 20. On 2 June 2008 the judgment became final. 21. On 4 August 2008 the Federal Migration Service annulled the decision of 22 March 2005 stating that the first applicant’s presence on Russian territory was undesirable, and the decision of 12 November 2005 ordering his deportation. 22. By letter of 21 August 2008, the head of the local department of the Federal Migration Service notified the first applicant of the decision of 4 August 2008. She further reminded the first applicant that he was unlawfully residing on Russian territory. To make his residence lawful, he had to leave for China, obtain a Russian entry visa and then apply for a residence permit. If he failed to leave, he would be fined and administratively removed to China under Article 18.8 of the Administrative Offences Code. 23. On 23 September 2008 the first and the second applicants applied to the Tsentralniy District Court of Khabarovsk for a reconsideration of the judgment of 4 November 2004, as upheld on 18 January 2005, referring to the Court’s judgment of 6 December 2007. 24. On 2 December 2008 the Tsentralniy District Court of Khabarovsk allowed their request, quashed the judgment of 4 November 2004 and ordered a reconsideration of the case. 25. On 15 December 2008 the first and the second applicants submitted an amended statement of claim, asking that the first applicant be issued with a residence permit and that compensation in respect of non-pecuniary damage be paid to each of the applicants. The statement of claim mentioned that the first and the second applicants were acting on their own behalf and on behalf of their minor children, the third and the fourth applicants. 26. On 6 February 2009 the Tsentralniy District Court of Khabarovsk relinquished jurisdiction in favour of the Khabarovsk Regional Court. The judge noted that one of the main criticisms of the European Court expressed in the judgment of 6 December 2007 was the failure by the District Court to review documents containing classified information. This factor had prevented an effective assessment of whether the finding that the first applicant constituted a danger to national security had a reasonable basis in the facts and, consequently, of whether the decision to reject his application for a residence permit was justified. The judge concluded that the case should be referred to the Regional Court which, unlike the District Court, had competence to review documents containing State secrets. 27. During the hearing the Khabarovsk Regional Court examined the classified documents from the Federal Security Service containing information about the security risks allegedly posed by the first applicant. The first and second applicants were informed of the contents of those documents after they had undertaken not to disclose that information. They asked the court to call the police informants who had accused the first applicant of subversive activities to the witness stand and have them questioned. Their request was however refused. 28. On 17 March 2009 the Khabarovsk Regional Court found that the refusal of a residence permit to the first applicant had been lawful. It referred, in particular, to section 7 § 1 (1) of the Foreign Nationals Act and held as follows: “... if the security services discover that certain actions [of a foreign national] create a threat for the security of the Russian Federation or for the citizens of the Russian Federation, they are bound [by law] to inform the local department of the Federal Migration Service of [the existence of such threat]. [The law] does not require that the security services reveal the substance of the threat. The procedure for the preparation and approval of the materials in respect of a specified foreign national to whom a Russian three-year residence permit is to be refused is established by [unpublished] Instruction no. 0300, “On organisation of the activities of the Federal Security Service in respect of the examination of materials concerning residence permits for foreign nationals”, of 4 December 2003. During the hearing the court examined the requirements contained in the Instruction and the ‘classified’ documents which had formed the basis for the refusal, by the security services, of permission to grant a three-year residence permit to Chinese national Liu Jingcai. It finds that the Khabarovsk Regional Department of the Federal Security Service complied with the requirements contained in the Instruction. The court has established that the security service revealed circumstances and discovered factors representing a danger for the vital interests of individuals, society and the State. The security service made the finding that there were circumstances warranting the refusal of a Russian three-year residence permit to Liu Jingcai on the basis of information obtained in the course of its intelligence activities conducted in accordance with the procedure established by the laws of the Russian Federation, when discharging its [the security service’s] duties and within its competence. The court takes into account that issues relating to national security are special, in particular because the factors that represent a threat to national security are assessed by the competent authorities on the basis of information received from various sources, including sources not subject to judicial scrutiny. Moreover, section 7 § 1 (1) of [the Foreign Nationals Act] does not specify which actions may be qualified as representing a threat for the security of Russia or its citizens. This means that the competent security services have discretion in classifying various actions of a foreign national as a threat [to national security]. Thus, there are no reasons to hold that the refusal by the Khabarovsk Regional Department of the Federal Security Service of permission to grant a three-year residence permit to Liu Jingcai was unlawful. After the receipt of news of the refusal of permission by the security service, the application of Liu Jingcai for a three-year residence permit was rejected by the police department of the Khabarovsk region, by decision no. 401 of 22 July 2004, on the basis of section 7 § 1 (1) of [the Foreign Nationals Act]. The court concludes from the above that the mentioned decision of the police department of the Khabarovsk Region was lawful and justified...” 29. The court then cited Article 8 of the Convention and certain paragraphs of the Court’s judgment of 6 December 2007 reiterating the general principles under Article 8. It continued as follows: “Given that the instant case does not concern an expulsion order against Liu Jingcai and that during the court hearing statutory circumstances warranting a restriction of the right of Chinese national Liu Jingcai to obtain a Russian three-year residence permit have been established, the court does not see any grounds to satisfy the plaintiffs’ request for an injunction to examine Liu Jingcai’s application for a three-year residence permit and grant such residence permit on the basis of the UN Convention on the Rights of the Child.” 30. Finally, referring to section 8 of the Foreign Nationals Act (see paragraph 49 below), the Regional Court found that the first applicant was not entitled to receive a five-year residence permit either. A five-year residence permit could be issued only to a person who had lived in Russia for at least a year on the basis of a three-year residence permit. As the first applicant had never had a three-year residence permit, he was not eligible for a five-year residence permit. 31. The Regional Court dismissed the applicants’ claims in full. 32. The first and second applicants appealed to the Supreme Court of the Russian Federation. They complained, in particular, that they had not been given access to the classified materials but merely informed about their contents in general terms. They had therefore been denied an opportunity to contest the accusations levelled at the first applicant. They referred to the cases of Edwards and Lewis v. the United Kingdom ([GC], nos. 39647/98 and 40461/98, ECHR 2004X), and A. and Others v. the United Kingdom ([GC], no. 3455/05, ECHR 2009), claiming that the refusal to disclose the relevant evidence had violated their right to a fair trial. They also argued that by refusing to provide the first applicant with a residence permit the authorities had showed disrespect for their family life. 33. A representative of the local department of the Federal Migration Service commented on the applicants’ appeal submissions. He submitted, in particular, that the decision to refuse a residence permit to the first applicant had been lawful and had been taken in accordance with the procedure established by law, in particular Instruction no. 0300. That instruction and the classified materials from the security services had been examined by the Regional Court in the applicants’ presence and had been attached to the case file. Accordingly, the applicants had had full access to those materials. 34. On 20 May 2009 the Supreme Court upheld the judgment of 17 March 2009 on appeal, finding that it had been lawful, well-reasoned and justified. The Regional Court had examined the classified materials in the applicants’ presence. The Supreme Court was therefore convinced that the security services’ assertion that the first applicant was a danger to national security had a basis in the facts. In those circumstances the public interest had absolute priority over any private interests that might be involved. There was no reason to depart from the findings made by the Regional Court, as those findings had been compatible with the domestic and international law. The applicants had been given access to all relevant evidence and materials and no other procedural defects had been established. Accordingly, their right to a fair trial had not been violated. 35. On 2 June 2009 several policemen went to the second applicant’s place of work in search of the first applicant. They took the first applicant to the nearby police station. An officer from the local department of the Federal Migration Service drew up a report on the commission of an offence under Article 18.8 of the Administrative Offences Code and ordered that the first applicant pay a fine of 2,000 Russian roubles (RUB). The first applicant was then released. 36. The applicants challenged the decision of 2 June 2009 before the Sovetskaya Gavan Town Court. 37. On 7 July 2009 the Sovetskaya Gavan Town Court reversed the decision of 2 June 2009. It observed that the statutory limitation period for continuous administrative offences was one year starting to run from the day the offence was discovered. In the first applicant’s case the continuous offence of living in Russia without a valid residence permit had been first discovered in December 2004. Accordingly, the administrative offence proceedings were time-barred. The parties did not appeal and the decision became final. 38. On 28 August 2009 the prosecutor’s office asked the Khabarovsk Regional Court to quash the decision of 7 July 2009 as incorrect. 39. On 5 October 2009 the Khabarovsk Regional Court found that the Town Court had incorrectly interpreted and applied the legal provisions concerning limitation periods and that the administrative offence proceedings against the first applicant were not time-barred. However, the Administrative Offences Code did not provide for a procedure for quashing or reconsidering a court decision that had become final. It therefore rejected the prosecutor’s office’s application. 40. On 22 October 2009 several policemen went to the second applicant’s place of work and arrested the first applicant. He was taken to the police station, where an officer from the local department of the Federal Migration Service drew up a report on the commission of an offence under Article 18.8 of the Administrative Offences Code. The report was transmitted to a judge. 41. On the same day the Sovetskaya Gavan Town Court held that the first applicant had infringed the residence regulations by living in Russia without a valid residence permit. It further held as follows: “The offender’s arguments that some members of his family (his wife and children) are living in the Russian Federation have been discussed. It has been found that these circumstances cannot prevent an administrative removal, as in the judgments mentioned above [the judgments of 17 March and 20 May 2009] the same circumstances were considered insufficient for granting Liu Jingcai a residence permit...” 42. The Town Court ordered the first applicant’s administrative removal and detention pending removal. It also ordered that he pay a fine of RUB 2,000. The first applicant was placed in a detention centre in Khabarovsk. 43. On 25 November 2009 the Khabarovsk Regional Court upheld the decision of 22 October 2009 on appeal. 44. On 27 November 2009 the first applicant was expelled to China. 45. Until 2002 temporary resident foreign nationals were not required to apply for a residence permit. Their presence in Russia was lawful as long as their visa remained valid. On 25 July 2002 Law no. 115-FZ on Legal Status of Foreign Nationals in the Russian Federation (“the Foreign Nationals Act”) was passed. It introduced the requirement of residence permits for foreign nationals. 46. A foreign national married to a Russian national living on Russian territory is entitled to a three-year residence permit (section 6 §§ 1 and 3 (4)). 47. A three-year residence permit (“разрешение на временное проживание”) may be refused only in exhaustively defined cases, particularly if the foreign national advocates a violent change to the constitutional foundations of the Russian Federation or otherwise creates a threat to the security of the Russian Federation or its citizens (section 7 § 1 (1)). Nor may a three-year residence permit be issued during the five-year period following a person’s administrative removal or deportation from Russia (section 7 § 1 (3)). 48. The local department of the Federal Migration Service (before 2006, the local police department) examines an application for a three-year residence permit within six months. It collects information from the security services, the bailiffs’ offices, tax authorities, social security services, health authorities and other interested bodies. Those bodies must, within two months, submit information about any circumstances within their knowledge which might warrant refusal of a residence permit. After receipt of such information the local department of the Federal Migration Service or the local police department decides whether to grant or reject the application for a three-year residence permit (section 6 §§ 4 and 5). 49. During the validity of the three-year residence permit a foreign national may apply for a renewable five-year residence permit (“вид на жительство”). Such application is possible only after the foreign national has lived in Russia for at least a year on the basis of a three-year residence permit (section 8 §§ 1-3). 50. Article 18.8 of the Administrative Offences Code of the Russian Federation provides that a foreign national who infringes the residence regulations of the Russian Federation, including by living on the territory of the Russian Federation without a valid residence permit or by non-compliance with the established procedure for residence registration, will be liable to punishment by an administrative fine of RUB 2,000 to 5,000 and possible administrative removal from the Russian Federation. Under Article 28.3 § 2 (1) a report on the offence described in Article 18.8 is drawn up by a police officer. Article 28.8 requires the report to be transmitted within one day to a judge or to an officer competent to examine administrative matters. Article 23.1 § 3 provides that the determination of any administrative charge that may result in removal from the Russian Federation shall be made by a judge of a court of general jurisdiction. Article 30.1 § 1 guarantees the right to appeal against a decision on an administrative offence to a court or to a higher court. 51. A competent authority, such as the Ministry of Foreign Affairs or the Federal Security Service, may issue a decision that a foreign national’s presence on Russian territory is undesirable. Such a decision may be issued if a foreign national is unlawfully residing on Russian territory or if his or her residence is lawful but creates a real threat to the defensive capacity or security of the State, to public order or health, etc. If such a decision has been taken, the foreign national has to leave Russia or will otherwise be deported. That decision also forms the legal basis for subsequent refusal of re-entry into Russia (section 25.10 of the Law on the Procedure for Entering and Leaving the Russian Federation, no. 114-FZ of 15 August 1996, as amended on 10 January 2003, “the Entry Procedure Act”). 52. A foreign national who has been deported or administratively removed from Russia may not re-enter it during the five-year period following such deportation or administrative removal (section 27 § 2 of the Entry Procedure Act). 53. The Civil Procedure Code provides that only those persons who have reached the age of eighteen may participate in civil proceedings. Minors participate in civil proceedings through their parents or guardians (Articles 37 § 1and 52 § 1).
| 1
|
train
|
001-22131
|
ENG
|
FRA;DEU
|
ADMISSIBILITY
| 2,000
|
TIEMANN v. FRANCE and GERMANY
| 1
|
Inadmissible
| null |
The applicant, Mr Armin Tiemann, is a German national who was born in 1941 and lives in Kirchdorf (Germany). He was represented before the Court by Mr Christofer Lenz, a lawyer practising in Stuttgart (Germany). On 26 August 1989 the applicant married a French national. The marriage produced a son and a daughter, born in 1990 and 1994 respectively. The applicant and his wife have been living apart since 9 January 1997. On 13 January 1997 proceedings for the award of parental responsibility were instituted in the Sulingen District Court (Amtsgericht). On 14 January 1997 the District Court provisionally granted the applicant the right to determine the children’s place of residence while their parents lived apart. At a hearing in the District Court on 17 February 1997 the children’s mother stated that she had no intention of unlawfully leaving the Federal Republic of Germany with the children. On 18 February 1997 the District Court consequently revoked its decision of 14 January 1997 and restored the joint exercise of parental responsibility. On 7 July 1997, without the applicant’s knowledge and against his wishes, the children’s mother removed them from the family home in order to settle with them at her parents’ home in Montoire-sur-le-Loir (France). On 25 July 1997 the District Court again granted the applicant the right to determine the children’s place of residence and ordered their mother to return them. On 6 August 1997 the District Court ruled that the mother’s removal of the children to a different country had been wrongful within the meaning of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. On 28 March 1998 the applicant had the children abducted in Montoire and brought back to him in Germany. On 27 April 1998 the District Court decided to stay the custody proceedings pending the final decision on an application by the mother for the children’s return. On 13 May 1998 the District Court dismissed an application by the mother for recognition of an order made on 10 November 1997 by a French court (the Blois tribunal de grande instance) and for the return of the children. The mother appealed against that decision. On 9 July 1998 the Celle Court of Appeal (Oberlandesgericht) ordered the return of the children to their mother on the basis of the Hague Convention of 25 October 1980. On 15 July 1998 the applicant lodged a constitutional appeal (Verfassungsbeschwerde) and applied for a stay of execution of the decision of 9 July 1998. On 16 and 31 July 1998 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a panel of three judges, allowed the application for a stay of execution, thereby provisionally maintaining the applicant’s home as the children’s place of residence. On 29 October 1998 the Federal Constitutional Court quashed the decision of 9 July 1998 and remitted the case to the Celle Court of Appeal. It held that the children should have been represented by a guardian in the appeal proceedings. Furthermore, the Court of Appeal had failed to consider the interests of the children in the light of paragraph 1 (b), and of paragraphs 2 and 3 taken together, of Article 13 of the Hague Convention of 25 October 1980. In the Federal Constitutional Court’s view, ordering successive removals of children when first one and then the other parent applied for their return ran counter to the aims of that Convention if the children’s return placed them in an intolerable situation, unless the court concerned found that there were particular facts justifying their return in spite of the risks entailed by a further removal. On 30 November 1998 the Celle Court of Appeal appointed an expert to assess the state of both parents’ relations with the children, with a view in particular to determining which parent should be awarded custody. The Court of Appeal also appointed a lawyer of the Celle Bar to protect the children’s interests. On 20 January 1999 the expert submitted his report. In it he concluded that both parents were capable of bringing up the children, although he stressed the good relationship between the applicant and his children. As regards the children’s place of residence, the expert considered that the desire expressed by the applicant’s son to stay with his father could be explained by the fact that the applicant had influenced his son and undermined his image of his mother, thereby provoking a conflict of loyalties. It had emerged from exploratory discussions, however, that the son had pleasant memories of his stay in France, had made friends through leisure activities such as judo, and had got on well with his maternal grandparents. His grandfather had apparently once kicked him, but it had transpired that he had only been teasing him and had not caused any harm. The expert observed that there were significant differences between the parents’ respective approaches to bringing up their children. The mother took great care to set limits for the children, while the applicant adopted a more liberal attitude towards them, especially towards his son, who was used to having his every whim satisfied. The expert considered that such an approach could have a negative effect in the long term, as the son might become intolerant of frustration and might experience problems. In the expert’s opinion, the children’s mother was in a better position to ensure their well-being because she did not work, and if she was ever temporarily unable to look after them, they could be looked after, supervised and supported by the members of her family, whom they had known for a long time. Where young children were concerned, an arrangement of that kind was more beneficial than employing someone to look after them. Having regard, on the one hand, to the applicant’s age and approach to child-raising, and, on the other hand, to the fact that the children’s mother, who did not have a job, was able to devote herself entirely and exclusively to them, the expert expressed the view that the children should be returned to their mother. He considered that the nine months they had previously spent with her – a subjectively long period for them – had enabled them to settle into those new surroundings. On 5 February 1999 the Court of Appeal decided to confer on the Diepholz Youth Office (Kreisjugendamt) the right to determine the children’s place of residence pending its ruling on the merits. The Youth Office subsequently recommended that the children should live with their father. On 19 February 1999 the expert followed up his report with comments on objections submitted by the applicant. On 8 and 22 February 1999 the applicant challenged the president of the relevant division of the Celle Court of Appeal, another judge of that court and a judge of the Sulingen District Court for bias. He accused the Court of Appeal judges of failing to take sufficient account of the Federal Constitutional Court’s decision by failing to draw a distinction between the application for transfer of residence under the Hague Convention of 25 October 1980 and the assessment of the children’s interests, the latter task being the responsibility of the judges who had to determine the interim measures to be taken in respect of the children after the separation of their parents. He further argued that the judges in question had contravened the principle of impartiality to his disadvantage by describing his attitude as uncooperative. Their bias was also evident, in his submission, from the questions they had put to the expert, from their refusal to allow his requests for an adjournment and for a say in the choice of expert, from the delay in serving judicial decisions and from the fact that a “wanted” notice had been issued on account of his failure to attend a hearing. On 10 March 1999 the Celle Court of Appeal dismissed the challenges as unfounded. On the same day the applicant applied to the Federal Constitutional Court for a stay of execution of the Celle Court of Appeal’s decision if it ruled in favour of returning the children to their mother in France, pending the Federal Constitutional Court’s decision on the matter. On 11 March 1999 the Federal Constitutional Court, sitting as a panel of three judges, allowed the application. On 12 March 1999, having heard evidence from the parents, the children and the expert, the Celle Court of Appeal ordered the return of the children to their mother at her home in France, the State of their habitual residence for the purposes of the Hague Convention of 25 October 1980. It held that the children’s return to their mother was justified under Article 12 of the Convention of 25 October 1980 as their removal to Germany by their father had been wrongful within the meaning of Article 3 of that Convention. Under that provision, the removal of a child was to be considered wrongful where it was in breach of rights of custody attributed to a person, either jointly or alone, under the law of the State in which the child had been habitually resident immediately before the removal, and where at the time of removal those rights were actually being exercised. The Court of Appeal observed that the two children had been habitually resident in France before being removed to Germany on 28 March 1998. At the time of the removal they had been resident in France for almost nine months. They had been living with their mother in a flat in their grandparents’ house in Montoire. They had adapted well to their new surroundings. As a rule, a stay of six months was sufficient for a place of residence to be considered habitual. The fact that the mother had taken the children to France against their father’s wishes did not preclude her home in Montoire being established as their habitual residence. In general, it was important for children to adapt to living conditions in their new place of residence, and that had occurred in the instant case. The Court of Appeal added that contact between the parents remained desirable, and they would have to abate their mutual distrust. In accordance with Article 14 of the Convention of 25 October 1980, the Court of Appeal took account of the order issued by the Blois tribunal de grande instance on 10 November 1997 in determining whether there had been a wrongful removal, although it did not avail itself of the specific procedures for recognition of that decision, which had ordered the joint exercise of parental responsibility by both parents. The Court of Appeal further held that the conditions laid down in Article 13 § 1 (b) of the Convention of 25 October 1980 were not satisfied in the instant case. By virtue of that provision, the judicial authority of the requested State was not bound to order the return of children if the person opposing that measure established that there was a grave risk that the child’s return would expose him or her to physical or psychological harm or otherwise place him or her in an intolerable situation. On the basis of the report drawn up by the expert it had appointed and the statements made by the expert at the hearing, the Court of Appeal, in accordance with the wishes of the children’s lawyer, concluded that the return of the children to their mother would be in their interests. It considered that there was no need to order a second expert opinion, since the applicant’s criticisms had merely referred to scientific theories without casting doubt on the expert’s findings, which, in its view, were clear, consistent and well-founded. On 31 March 1999 the Federal Constitutional Court, sitting as a panel of three judges, decided not to entertain a constitutional appeal lodged by the applicant against that decision. On 1 April 1999 the mother brought the two children back to France. On 24 July 1997 the children’s mother instituted divorce proceedings in the Blois tribunal de grande instance. On 5 August 1997 the family-affairs judge of that court authorised her to live apart from her husband, together with her children, at her home in France. On 3 September 1997 Blois State Counsel and the applicant applied to the Blois tribunal de grande instance, requesting it to order the immediate return of the children to their home in Germany, pursuant to Article 12 of the Hague Convention of 25 October 1980. The applicant further requested that the Sulingen District Court’s decision of 25 July 1997, provisionally granting the applicant the right to determine where the children should live, be declared enforceable or, at the least, recognised in France. On 25 September 1997 the family-affairs judge of the Blois tribunal de grande instance refused to order the return of the children to Germany. Although he considered the mother’s removal of the children to have been wrongful, he stated that returning the children to Germany would entail a grave risk for them and would in any case place them in an intolerable situation within the meaning of Article 13 § 1 (b) of the Hague Convention. Referring to the case-law of the Court of Cassation, to the effect that a grave risk or an intolerable situation could also result from a further change in the children’s living conditions, the judge concluded that both the separation of the children from their mother and the separation of the brother and sister from each other would cause an immediate risk of psychological harm, and that the sudden return of the children to Germany would place them in an intolerable situation, regard being had to their tender age (one being three years old and the other six and a half). That situation would be aggravated by the crisis which the couple were undergoing and by the total lack of certainty as to the length of the mother’s separation from her children. The applicant appealed against that decision. On 10 November 1997 the family-affairs judge of the Blois tribunal de grande instance issued an order pronouncing the failure of the conciliation process in the divorce proceedings. He decided that parental responsibility should be exercised jointly by the two parents and that the children should be habitually resident with their mother, and granted the father access and staying access, specifying that those rights would not become enforceable until the date on which the order pronouncing the failure of the conciliation process was declared enforceable in Germany. In a judgment of 10 March 1998 the Orléans Court of Appeal upheld the order of 25 September 1997. Noting that a grave risk of harm or of an intolerable situation within the meaning of Article 13 § 1 (b) of the Hague Convention of 25 October 1980 – cited as justification for retaining children who had been removed – might be entailed by a further change in the children’s living conditions, the Court of Appeal confirmed that separating a three-and-a-half-year-old child from her mother and a brother and sister from each other would cause an immediate risk of psychological harm, and that the sudden return of the children to Germany would place them in an intolerable situation in view of their tender age. It further noted that the mother, who did not work, had always looked after the two children’s everyday needs since their birth and that their return to Germany would entail the end of that state of affairs, especially as the mother’s highly precarious financial situation gave reason to fear that she would be unable to make regular use of the access and staying access to which she would be entitled. The Court of Appeal declared inadmissible the applicant’s application to have the German court’s decision of 25 July 1997 (provisionally granting him the right to determine where the two children should live) recognised or declared enforceable. It also held that that application was ill-founded. The applicant appealed on points of law against that judgment within the statutory period of two months. He argued in particular that, on the basis of the Hague Convention of 25 October 1980, the judge should have acted swiftly to end the patently illegal situation resulting from the children’s wrongful removal and could only have refused their immediate return if they faced a grave risk, the assessment of which was quite distinct from the assessment of the children’s best interests with regard to a custody measure. In basing its decision on the children’s interest in staying with their mother, the Court of Appeal had, in the applicant’s submission, acted as a court of first instance and exceeded its jurisdiction, in breach of Articles 12, 13 and 19 of the Hague Convention of 25 October 1980. The applicant further submitted that the immediate return of a wrongfully removed child, even one of tender age, to live with his lawful father in the same conditions as had existed before the wrongful removal could not in any circumstances be regarded as constituting an intolerable situation within the meaning of Article 3 of the Hague Convention. On 28 March 1998 the applicant had the children abducted in Montoire and brought back to him in Germany. The Blois investigating judge subsequently began a criminal investigation in respect of the applicant for abduction of a minor by a gang and criminal conspiracy. On 22 June 1999 the Court of Cassation dismissed the applicant’s appeal on points of law. On 17 June 1999 the children’s mother applied to have the father’s access and staying access revoked as a result of the children’s abduction. In an order of 30 June 1999 the Blois tribunal de grande instance suspended the applicant’s access and staying access in respect of his daughter during the summer of 1999 and granted him access and staying access in respect of his son. It appears from the file that, notwithstanding the order of 30 June 1999, the two children spent three weeks of their summer holidays at their father’s home. On 3 October 1999 the applicant learned from his son that the children’s mother was planning to move to Paris, where she had found a job. On an unspecified date the applicant applied to the Blois tribunal de grande instance to have the children’s place of residence transferred to his home in Germany. He argued that their mother did not have sufficient time available to ensure the children’s day-to-day upbringing and to give them the care and attention they needed. On 13 January 2000 the Blois tribunal de grande instance dismissed that application. It pointed out that the children’s return to France had been ordered by the Celle Court of Appeal in the light of the various findings set out in the expert’s psychological report. It observed that the mother’s physical availability, which had been taken into account at the time, had not been the sole factor determining where the children should live. After the applicant had abducted the children, their mother had been unable to see them for a year as a result of his unreasonable attitude. In that context, the children had suffered severe psychological trauma. Since they had returned to their mother, she had found a job, a fact for which she could not be reproached. Although she was now in employment, she had managed, like any other working woman, to organise her children’s everyday lives satisfactorily; the children appeared to be thriving in her company. They attended schools not far from their home and their mother worked in the same area. There was nothing in the file to indicate that the mother’s new circumstances were detrimental to the children or were responsible for the son’s difficulties at school or the daughter’s psychological problems. Those problems had existed before and were the consequence not of the mother’s personal situation but of the conflict between the parents, which was still extremely intense. Noting, however, that since the summer holidays the family situation had calmed down considerably, the court granted the applicant access and staying access in respect of both children, subject to the conditions laid down in the order of 10 November 1997 pronouncing the failure of the conciliation process. It also set the amount of maintenance and the applicant’s contribution to his children’s upkeep and education. Article 1 “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.” Article 3 “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.” Article 12 “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.” Article 13 “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.” Article 19 “A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.”
| 0
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train
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001-90792
|
ENG
|
BGR
|
CHAMBER
| 2,009
|
CASE OF "BULVES" AD v. BULGARIA
| 3
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Violation of P1-1;Pecuniary damage - award;Non-pecuniary damage - finding of a violation sufficient
|
Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
|
6. On 16 August 2000 the applicant company purchased goods from another company (“the supplier”). 7. Both companies were registered under the Value Added Tax Act 1999 (“the VAT Act”) and the transaction constituted a taxable supply under the said Act. 8. The total cost of the received supply was 21,660 Bulgarian levs (BGN) (11,107 euros (EUR)), of which BGN 18,050 (EUR 9,256) was the value of the goods and BGN 3,610 (EUR 1,851) was value-added tax (“VAT”). 9. The supplier issued invoice no. 12/16.08.2000 to the applicant company, which the latter paid in full, including the VAT of BGN 3,610 (EUR 1,851). 10. The applicant company recorded the purchase in its accounting records for the month of August 2000 and filed its VAT return for that period by 15 September 2000. 11. The supplier, on the other hand, did not record the sale in its accounting records for the month of August 2000, but for October 2000, and reported it in its VAT return for the latter period, which it filed on 14 November 2000. 12. On an unspecified date the tax authorities conducted a VAT audit of the applicant company covering the period from 10 February to 31 December 2000. In the course of the inspection a cross-check of the supplier was conducted in order to ascertain whether it had properly reported and recorded the supply in its accounting records. As a result, the above reporting discrepancy was discovered (see paragraphs 10 and 11 above). 13. On 31 January 2001 the “Yug” Tax Office of the Plovdiv Territorial Tax Directorate issued the applicant company with a tax assessment. It refused the applicant company the right to deduct the VAT it had paid to its supplier (“the input VAT”), amounting to BGN 3,610 (EUR 1,851), because the supplier had entered the supply in its accounting records for the month of October 2000 and had reported it for that period rather than for August 2000. The Territorial Tax Directorate therefore considered that no VAT had been “charged” on the supply in the August 2000 tax period, that the applicant company could not therefore deduct the amount it had paid to its supplier as VAT and, furthermore, that it was liable to pay the VAT on the received supply a second time. Accordingly, it ordered the applicant company to pay the VAT in the amount of BGN 3,610 (EUR 1,851) into the State budget, together with interest of BGN 200.24 (EUR 102) for the period from 15 September 2000 to 31 January 2001. 14. The applicant company appealed against the tax assessment on 20 February 2001. 15. In a decision of 26 February 2001 the Plovdiv Regional Tax Directorate dismissed the applicant company’s appeal and upheld the tax assessment in its entirety. It recognised that the applicant company had fully complied with its VAT reporting obligations in respect of the received supply, but found that the supplier had failed to enter its invoice in its own accounting records on the date it had been issued, 16 August 2000, and had not reported its VAT-taxable supply for the month of August 2000 as it should have done. It therefore concluded that no VAT had been “charged” on the supply in question and that the applicant company was accordingly not entitled to deduct the input VAT, in spite of the fact that the supplier had subsequently reported the supply for the month of October 2000. 16. The applicant company appealed against the decision of the Regional Tax Directorate on 19 March 2001, arguing that it could not be denied the right to deduct the input VAT solely because of its supplier’s belated compliance with its VAT reporting obligations. The applicant company also claimed that the supplier’s right to deduct the VAT it had paid to its own supplier had been recognised by its tax office, while the applicant company was being denied that right. In its submissions the applicant company relied, inter alia, on Article 1 of Protocol No. 1 to the Convention. 17. In a judgment of 21 September 2001 the Plovdiv Regional Court dismissed the applicant company’s appeal and upheld the decisions of the tax directorates. It stated as follows: “The Court finds that the ... objection of the [applicant company] is ... unsubstantiated. In particular, [the applicant company objected that] it had been the compliant party, while the supplier had not complied with its obligations. The right to ... [deduct the input VAT] arises for the recipient of a [taxable] supply only if the supplier has fulfilled the conditions under section 64 in conjunction with section 55 of the VAT Act. The Act does not differentiate between the parties to a supply transaction as regards compliance; the court cannot therefore introduce such an element into this judgment. ” 18. On 26 October 2001 the applicant company appealed to the Supreme Administrative Court. 19. In a final judgment of 24 October 2002 the Supreme Administrative Court concurred with the findings and conclusions of the tax authorities and stated the following: “... In this case the non-compliance of the supplier impacts unfavourably on the recipient ..., because the right to recover the [input VAT] does not arise for [the latter] and it does not matter that the recipient of the [taxable] supply [acted] in good faith and [was] compliant..., as this is irrelevant for the [purposes of] taxation. ... There [is] also [no] ... violation of ... Article 1 of Protocol No. 1, because the refusal to recognise the claimant’s right to [deduct the input VAT] under section 64 (2) of the VAT Act did not violate its property rights, due [to the fact that] the recognition of its substantive right [to deduct] under section 64 of the VAT Act is conditional on the actions of its supplier and [the latter’s] discharge [of its obligations] vis-à-vis [the State] budget. ...” 20. The VAT Act came into force on 1 January 1999. Although at the time Bulgaria was not a member of the European Union (EU), domestic VAT legislation in many respects followed the provisions of Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes, known as the Sixth VAT Directive, which at the time was the principal basis for the system of valueadded tax in the EU. 21. In general, VAT was charged on the price due for a supply of goods or services plus certain costs, taxes and charges not including the VAT itself. Most domestic supplies of goods and services, as well as imports, were subject to the standard rate of twenty percent VAT. 22. VAT was generally reported and paid monthly. Monthly VAT returns had to be filed and monthly VAT payments made by the fourteenth day of the following month. 23. At the relevant time, any person (legal or natural, resident or nonresident) who had a taxable turnover exceeding BGN 75,000 (EUR 38,461) during any preceding twelve-month period was obliged to register for VAT purposes (section 108). Voluntary and optional registration was also possible in certain cases. 24. On 1 January 2007, when Bulgaria became a member of the EU, the VAT Act was replaced by a new act of the same name. 25. At the relevant time the input VAT – the so-called “tax credit” under domestic legislation – was the amount of tax which a VATregistered person had been charged under the VAT Act for receipt of a taxable supply of goods or services, or for imported goods, in a given tax period, which the person in question had the right to deduct (section 63). 26. During the relevant period and in the context of the present case, where the VAT incurred on supplies exceeded the VAT charged on sales in a given tax period, the excess VAT was first carried forward for a period of six months to offset any VAT debt due in those six months, as well as other liabilities to the State (sections 63 and 77). If at the end of the six-month period the excess VAT, or part thereof, had still not been recovered, the balance was refunded within a further forty-five days (section 77). This period could be extended if the tax authorities initiated a tax audit (section 78 § 7). 27. At the relevant time, section 64 of the VAT Act provided that the recipient of a supply could deduct the input VAT when the following conditions were fulfilled: (a) the recipient of the supply on which VAT had been charged was a VAT-registered person; (b) the VAT had been charged by the supplier, who was a VATregistered person, at the latest on the date of issuance of the VAT invoice; (c) VAT was chargeable on the supply in question; (d) the goods or services received were used, were being used or would be used for VAT-taxable supplies; and, (e) the recipient was in possession of a VAT invoice which met the statutory requirements. 28. Further to the above, in respect of item (b), VAT was considered during the relevant period to have been charged when the supplier: (1) issued an invoice which indicated the VAT; (2) recorded the issuance of the invoice in its sales register; (2) entered the VAT charged in its accounting records as a liability to the State budget; and (3) declared the VAT charged in its VAT return filed with the tax authorities (section 55 § 6). 29. At the relevant time, Bulgaria was not a member of the European Union. Accordingly, the acquis communautaire was not directly applicable or transposed into domestic legislation. However, as noted above, its domestic VAT legislation in many respects followed the provisions of the Sixth VAT Directive (see paragraph 20 above). 30. Consequently, it is worth mentioning in the context of the present case the following two judgments of the Court of Justice of the European Communities (CJEC), which examine the entitlement of the recipient of a supply to reimbursement of the VAT charged on such a supply in cases of suspected “carousel fraud”. This type of fraud, a kind of VAT missing trader intra-Community fraud, occurs when goods are imported VAT-free from other Member States, are then re-sold through a series of companies at VAT-inclusive prices and subsequently re-exported to another Member State with the original importer disappearing without paying over to the tax authorities the VAT paid by its customers. 31. In its judgment of 12 January 2006 in joined cases C-354/03, C355/03 and C-484/03, Optigen Ltd (C-354/03), Fulcrum Electronics Ltd (C-355/03) and Bond House Systems Ltd (C-484/03) v Commissioners of Customs & Excise: reference for a preliminary ruling from the High Court of Justice (England & Wales), Chancery Division – United Kingdom, European Court Reports (ECR) 2006, page I-00483, the CJEC concluded as follows: “Transactions such as those at issue in the main proceedings, which are not themselves vitiated by value added tax fraud, constitute supplies of goods or services effected by a taxable person acting as such and an economic activity within the meaning of Articles 2 (1), 4 and 5 (1) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment, as amended by Council Directive 95/7/EC of 10 April 1995, where they fulfil the objective criteria on which the definitions of those terms are based, regardless of the intention of a trader other than the taxable person concerned involved in the same chain of supply and/or the possible fraudulent nature of another transaction in the chain, prior or subsequent to the transaction carried out by that taxable person, of which that taxable person had no knowledge and no means of knowledge. The right to deduct input value added tax of a taxable person who carries out such transactions cannot be affected by the fact that in the chain of supply of which those transactions form part another prior or subsequent transaction is vitiated by value added tax fraud, without that taxable person knowing or having any means of knowing.” 32. In a similar judgment of 6 July 2006 in joined Cases C-439/04 and C-440/04, Axel Kittel v Belgian State (C-439/04) and Belgian State v Recolta Recycling SPRL (C-440/04) (ECR 2006, page I-06161), the CJEC went on to state the following. “Where a recipient of a supply of goods is a taxable person who did not and could not know that the transaction concerned was connected with a fraud committed by the seller, Article 17 of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment, as amended by Council Directive 95/7/EC of 10 April 1995, must be interpreted as meaning that it precludes a rule of national law under which the fact that the contract of sale is void – by reason of a civil law provision which renders that contract incurably void as contrary to public policy for unlawful basis of the contract attributable to the seller – causes that taxable person to lose the right to deduct the value added tax he has paid. It is irrelevant in this respect whether the fact that the contract is void is due to fraudulent evasion of value added tax or to other fraud. By contrast, where it is ascertained, having regard to objective factors, that the supply is to a taxable person who knew or should have known that, by his purchase, he was participating in a transaction connected with fraudulent evasion of value added tax, it is for the national court to refuse that taxable person entitlement to the right to deduct.”
| 0
|
train
|
001-71493
|
ENG
|
POL
|
ADMISSIBILITY
| 2,005
|
SKULSKI v. POLAND
| 4
|
Inadmissible
|
Nicolas Bratza
|
The applicant, Mr Wojciech Skulski, is a Polish national who was born in 1965 and lives in Warszawa. The respondent Government were represented by Mr Krzysztof Drzewicki, of the Ministry of the Foreign Affairs and, subsequently, by Mr Jakub Wołąsiewicz, of the Ministry of the Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. On 9 March 1993 the applicant was detained on remand on suspicion of assault. He was released three months later. On 17 May 1995 a bill of indictment against the applicant and another person was lodged with the Warszawa-Zolibórz District Court. The prosecuting authorities proposed that five witnesses be heard by the court. A first hearing was held on 14 July 2000. Most of the hearings in the case were adjourned as the witnesses repeatedly failed to comply with the court summonses. On 8 February 2002, when the domestic proceedings were still pending, the applicant introduced his application, complaining about the excessive length of these proceedings. On 4 June 2002 the Court communicated the application to the respondent Government. At the hearing on 4 September 2002 the Warsaw District Court gave a judgment. On 24 February 2003 the Warsaw Regional Court partly amended the judgment and upheld it as to its remainder. By a letter of 26 November 2004 the Registry of the Court informed the applicant that it was open to him to avail himself of a domestic remedy in respect of the length of proceedings, as provided for by Article 18 of the 2004 Act. In reply, by a letter of 3 November 2004, the applicant informed the Court that he did not intend to do so. On 17 June 2004 Polish Parliament adopted a new law ‘on complaint about a breach of a right to have one’s case heard within a reasonable time’. The act entered into force on 17 September 2004. Section 2 of the Act provides for a special action by which a party can seek a declaration that his or her right to have a case heard within a reasonable time has been breached. The court shall take into consideration the following criteria: the conduct of the court before which the case is pending; the character of the case and the complexity of the legal and factual issues involved therein; what was at stake for the complainant, and the conduct of the parties. The length complaint must be lodged when the proceedings are still pending. Pursuant to Section 2, if the court finds that the length complaint is wellfounded, it shall give a ruling to this effect. If the complainant so requests, the court can also recommend that the court before which the case is pending takes certain procedural measures in the impugned proceedings. The court may also, award an appropriate amount of money to the complainant, in the amount not exceeding PLN 10,000. Under Section 18, within six months after the entry into force of the Act, that is, from 17 September 2004, anyone who had lodged an application with the European Court of Human Rights in due time complaining of a violation of the ‘reasonable-time’ requirement contained in Article 6 § 1 of the Convention was entitled to lodge a length complaint provided for by the Act, if the application to the Court had been lodged when the proceedings were still pending and if it had not yet been declared admissible by the European Court.
| 0
|
train
|
001-100901
|
ENG
|
POL
|
COMMITTEE
| 2,010
|
CASE OF STANISZEWSKI v. POLAND
| 4
|
Violation of Art. 6-1
|
Giovanni Bonello;Ján Šikuta;Lech Garlicki
|
6. On 14 December 2006 the applicant lodged with the Kłodzko District Court an action against his former employer, concerning his social insurance entitlements. 7. On 26 April 2007 the Kłodzko District Court dismissed the applicant's action. 8. On 15 May 2007 the applicant appealed. On 23 October 2007 the Świdnica Regional Court dismissed his appeal. 9. On 5 November 2007 the applicant was served with the judgment with its written grounds. The court informed him at the same time that he had sixty days as of the date of the service of the judgment (until 5 January 2008) to lodge a cassation appeal. 10. In his letter of 28 December 2007, received by the court on 31 December 2007, the applicant requested the court to appoint a legalaid lawyer for the purposes of lodging a cassation appeal. 11. On 9 January 2008 the applicant was granted legal aid. In a letter of the same date the court requested the Wałbrzych Regional Bar Association to assign a legal-aid lawyer to the case. This letter was served on the addressee on 14 January 2008. A legal-aid lawyer was assigned to the case on the same day. 12. In his fax of 25 January 2008 to the Świdnica Regional Court the applicant requested the court to extend the statutory time limit for lodging the cassation appeal in his case. He explained that he had been trying to find a lawyer; to no avail. Finally, he stated that he was “delighted with the legal-aid lawyer assigned to his case, who was superb”. 13. In a letter of 24 January 2007 to the Świdnica Regional Court, the legal-aid lawyer stated that she had found no points of law on which a cassation appeal in the applicant's case could be based and submitted a legal opinion as to why a cassation appeal did not, in her view, offer any prospects of success. A copy of that letter was sent to the applicant on the next day. 14. In his letter of 30 January 2008, served on the Świdnica Regional Court on 1 February 2008, the applicant requested that the case be reexamined by that court. The applicant also applied to have the power of attorney of the defendant enterprise invalidated for the purpose of safeguarding the equality of arms in the proceedings as he intended to present his case to the court without legal representation. 15. By a letter of 28 February 2008 the President of the Labour Division of the Świdnica Regional Court informed the applicant that there were no grounds on which to envisage a re-examination of the case in which a final and valid judicial decision had been given. 16. The relevant domestic law and practice concerning the procedure for lodging cassation appeals with the Supreme Court against judgments of the appellate courts are stated in the Court's judgments in the cases of Siałkowska v. Poland, no. 8932/05, 22 March 2007; Staroszczyk v. Poland, no. 59519/00, 22 March 2007; Smyk v. Poland, no. 8958/04, 28 July 2009; Zapadka v. Poland, no. 2619/05, 15 December 2009; Bąkowska v. Poland, no. 33539/02, 12 January 2010. 17. On 5 February 2005 amendments to the Code of Civil Procedure, adopted on 22 December 2004 (Ustawa o zmianie ustawy Kodeks postępowania cywilnego oraz ustawy Prawo o ustroju sądów powszechnych), entered into force. Under the amended text of Article 398 1 § 5, the timelimit for lodging a cassation appeal with the Supreme Court was extended from thirty to sixty days. 18. The Supreme Court has repeatedly held that a request for leave to appeal out of time was the only method by which a cassation appeal submitted after the expiry of the timelimit could be admitted for examination (21 April 1997, II CZ 38/97; 27 September 2001, II UZ 51/01). In a further series of decisions the Supreme Court considered that it would be unfair for the legally-aided party to be penalised for the fact that legalaid applications could not be processed quickly enough to make it possible for a cassation appeal to be lodged within a period of thirty days counted from the day of service of the judgment on the party. The parties waiting for legal-aid services cannot be held at fault for shortcomings in the system. A party who was obliged to have recourse to legal aid should not be put in a worse situation than that of a person who did not seek it. A request to appeal out of time should therefore be submitted within seven days from the date on which the legalaid lawyer could obtain effective access to the case file or had an effective possibility of drafting an appeal (4 March 2005, II UZ 72/04; 27 June 2000, I CZ 62/00), or from the date when the lawyer was informed that he had been assigned to the case by the local Bar Association (11 October 2001, IV CZ 163/01; 17 November 1998, II UZ 122/98; 11 October 2001, IV CZ 163/01); 19. In a resolution adopted by a bench of seven judges of the Supreme Court on 17 February 2009 (III CZP 117/08) that court acknowledged that there had been discrepancies in the manner in which the beginning of the seven-day time limit for submitting an application for leave to appeal out of time by legally-assisted parties had been determined. The court was of the view that applications for leave served the purpose of making access to the Supreme Court for legally-aided parties genuine and effective. Hence, the beginning of the timelimit could not be determined in a mechanical manner in all cases. The courts should instead examine the circumstances of individual cases as a whole and determine that date bearing in mind the genuine possibility for a lawyer to examine the case and prepare a cassation appeal.
| 1
|
train
|
001-77833
|
ENG
|
HRV
|
CHAMBER
| 2,006
|
CASE OF SUKOBLJEVIC v. CROATIA
| 2
|
Preliminary objection joined to merits (non-exhaustion of domestic remedies) and dismissed;Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
|
Christos Rozakis
|
4. The applicant was born in 1944 and lives in Zagreb. 5. On 24 March 1993 the applicant brought a civil action against the company T. (“the employer”) in the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking damages for a work-related injury. 6. On 3 February 1995 the Municipal Court gave judgment awarding damages to the applicant in the amount of 31,780 Croatian kunas (HRK) and the litigation costs. 7. On 21 May 1996 the employer appealed to the Zagreb County Court (Županijski sud u Zagrebu). 8. On 23 March 1999 the County Court quashed the first-instance judgment and remitted the case. 9. In the resumed proceedings, the Municipal Court held a hearing on 7 December 1999 at which it requested the applicant to provide the minutes drawn up by the labour inspectorate concerning the incident resulting in his injury or to indicate a person or authority who possessed that document. On 12 June 2000 the court repeated its request. 10. On 16 June 2000 and 3 January 2001 the applicant requested the court to invite the employer to produce the above evidence. On 26 June 2001 the court did so. 11. At the hearing held on 14 December 2001 the court decided to effect an in situ inspection (očevid) on 15 February 2002 with the assistance of an expert, and invited the applicant to advance the costs. Since the applicant did so only on 19 February 2002, the inspection did not take place. 12. On 3 January 2002 the Zagreb Commercial Court (Trgovački sud u Zagrebu) decided to open bankruptcy proceedings against the employer. It invited the creditors to report their claims by 28 February 2002 and scheduled a hearing, at which the reported claims were to be examined, for 20 March 2002. In accordance with the Bankruptcy Act, the decision was published in the “Official Gazette” no. 6/02 of 21 January 2002. 13. On 8 May 2002 the Zagreb Municipal Court invited the applicant to inform it whether the bankruptcy proceedings had been opened against the employer. On 8 June 2002 the applicant replied in the affirmative and requested that any future communication with the employer be conducted through its bankruptcy manager (stečajni upravitelj). 14. On 12 June 2002 the Municipal Court stayed the proceedings on account of the pending bankruptcy proceedings. 15. On 13 June 2002 the applicant reported his claim to the Zagreb Commercial Court. On 8 January 2004 and 30 June 2005 he filed two rush notes with that court urging the delivery of a decision on his claim. 16. On 20 March 2006 the Commercial Court, without issuing a formal decision, replied that in the bankruptcy proceedings against the employer the applicant’s claim had never been examined. 17. It would appear that both the civil and the bankruptcy proceedings are formally still pending. 18. Meanwhile, on 18 June 2002 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) complaining about the length of the civil proceedings. 19. On 16 December 2002 the Constitutional Court dismissed the applicant’s complaint. It examined the length of the proceedings in their part following the Convention’s entry into force with respect to Croatia. The Constitutional Court held that the delay was attributable to the complexity of the case and the applicant’s conduct. It found that the applicant had contributed to the length of the proceedings in that he had not responded to the Municipal Court’s request of 7 December 1999 for more than six months, that he had failed to advance the inspection costs in due time and that he had failed to request the Municipal Court to invite the bankruptcy manager to take over the civil proceedings which would have resulted in their resumption. 20. The relevant part of section 63 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) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court 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 competent court 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.” 21. The Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/91, 91/92, 58/93, 112/99, 88/01 and 117/03) in the relevant part provides as follows: 22. Section 212(1) provides that proceedings shall be stayed, inter alia, if bankruptcy proceedings are opened (against one or both of the parties). 23. Section 215(1) provides that proceedings shall resume when the bankruptcy manager takes over the proceedings or when the court, of its own motion or at the initiative of the opposite party, invites the bankruptcy manager to do so. 24. The Bankruptcy Act (Stečajni zakon, Official Gazette nos. 44/96, 29/99, 129/00, 123/03, 197/03, 187/04 and 82/06) in the relevant part provides as follows: 25. Section 7(2) provides that bankruptcy proceedings are urgent. 26. Section 55(1) provides that in its decision to open the bankruptcy proceedings the court shall set a date for the examination hearing (ispitno ročište) which shall be scheduled within two months after the lapse of the time-limit left to the creditors to report their claims to the bankruptcy manager. 27. Section 96 provides that creditors shall realise their claims against the bankrupt only in bankruptcy proceedings. 28. Section 173(1) provides that creditors shall report their claims against the bankrupt to the bankruptcy manager in writing, stating the basis and the amount thereof. 29. Section 175 provides for an examination hearing before the competent commercial court at which the bankruptcy manager shall either accept or oppose each of the reported claims. Likewise, a creditor can oppose the claim reported by another creditor. 30. Section 176(2) provides that the claims reported within three months after the first examination hearing may be examined at one or more separate examination hearings. Those hearings shall be scheduled by the court at the proposal of the creditors who failed to report their claims in due time, and under the condition that they advance the costs. If the costs are not advanced, the separate hearing shall not be held and the belated reports shall be declared inadmissible. 31. Section 176(4-6) provides that the court shall declare inadmissible the reports submitted after the expiry of the time-limit set forth in paragraph 2. The creditor which submitted the report shall have a right to appeal against that decision. 32. Section 177 provides that the claim is deemed to have been accepted if no objection has been raised by either the bankruptcy manager or another creditor. The commercial court shall prepare a schedule of examined claims on the basis of which it shall issue a decision (rješenje) showing which claims have been accepted and which were opposed, while setting out the amount and priority of each claim. 33. Section 179(1) provides that civil proceedings that concern a claim reported to the bankruptcy manager and that were pending at the moment of the opening of bankruptcy proceedings, shall be resumed by taking over of these proceedings (by an authorised person in the name of the bankrupt). The motion to resume the civil proceedings can be made by the plaintiff whose claim has been opposed in bankruptcy or, in the name of the bankrupt, the bankruptcy manager or another creditor that opposed the plaintiff’s claim. 34. Section 181(1) provides that a final decision establishing the claim and its priority, or establishing that a claim does not exist, shall be effective against the bankrupt and all its creditors.
| 1
|
train
|
001-58765
|
ENG
|
SMR
|
CHAMBER
| 2,000
|
CASE OF TIERCE AND OTHERS v. SAN MARINO
| 1
|
Violation of Art. 6-1 due to lack of impartial tribunal;Violation of Art. 6-1 due to the impossibility of being heard in person on appeal;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
|
Elisabeth Palm
|
10. On 29 November 1990 the first applicant's business associate, Mr C.B., lodged a criminal complaint with the Civil and Criminal Court (tribunale commissariale civile e penale) of the Republic of San Marino, accusing the first applicant of irregularities in the management of their business affairs. On 4 December 1990 Mr C.B. lodged a second complaint together with supporting documents, seeking, in particular, to have the first applicant's bank accounts frozen. 11. By a summons issued by the Commissario della Legge (judge) of the Civil and Criminal Court, Mr L.E., on 6 December 1990 and served on 10 December 1990, the first applicant was required to appear before that court on 17 December 1990; at the first applicant's request, the hearing was postponed until 22 February 1991. 12. On 30 January 1991 Mr C.B. filed further documents. 13. On 22 February 1991 Mr C.B. and the first applicant were questioned by the Commissario della Legge, Mr L.E. 14. On 4 March 1991 the first applicant filed pleadings. 15. On 16 May 1991 the Commissario della Legge, Mr L.E., ordered an expert to draw up a report with a view to ascertaining the nature of the business relationship between the first applicant and his associate and verifying the propriety of the first applicant's management of the company. 16. On 28 November 1991 the expert submitted his report, concluding that, on account of irregularities attributable to the first applicant, the latter owed his associate the sum of 93,188,334 Italian lire. On 30 December 1991 the Commissario della Legge, Mr L.E., allowed a further application by Mr C.B., dated 18 December 1991, for the attachment of the first applicant's assets in order to prevent him disposing of them. 17. On 8 May 1992 the Commissario della Legge, Mr L.E., questioned the expert, who reaffirmed his findings. The first applicant's lawyer asked for time to submit various documents. 18. On 14 May and 4 June 1992 the first applicant's lawyer filed his observations and various documents; Mr C.B.'s lawyer did likewise on 15 May and 11 June 1992. 19. On 19 June 1992 another Commissario della Legge authorised a second preventive attachment of the first applicant's property, including a number of cars, bank accounts and any other items of value. In an order of 24 June 1992 the second Commissario della Legge specified the items that were to be attached and appointed the first applicant as their legal guardian (custode giudiziale). 20. On 25 and 26 June 1992 the bailiffs (cursori) drew up a record of the attachment, noting that two cars had disappeared and that the first applicant, who was responsible for them in his capacity as legal guardian, was unable to indicate their whereabouts. Mr C.B.'s lawyer consequently lodged a further complaint against the first applicant, accusing him of the offence of fraudulent conversion of property under attachment (frode nel pignoramento o nel sequestro). 21. On 26 June 1992 the missing cars were located; on the same day the first applicant was questioned by the Commissario della Legge, Mr L.E. 22. On 2 July 1992 a defence witness was questioned by the Commissario della Legge, Mr L.E. 23. On 19 and 23 November 1992 Mr C.B.'s lawyer lodged a third application for preventive attachment of the first applicant's property. On 14 December 1992 the Commissario della Legge, Mr L.E., allowed the application and authorised the attachment of certain cars belonging to the first applicant, and also of his share in another company. On the same day the first applicant was committed for trial on charges of fraud and fraudulent conversion of property under attachment. 24. On 2 February 1993 the first applicant was issued with a summons to appear in court. 25. Since the shortened form of procedure (procedura sommaria) was applicable, the trial was held before the same Commissario della Legge, Mr L.E., who had already dealt with the case as the investigating judge. Evidence was heard from the parties and from various defence witnesses. 26. In a judgment delivered by the Commissario della Legge, Mr L.E., on 7 May 1993 and deposited at the registry on 16 July 1993 the first applicant was found guilty on both charges (fraud and fraudulent conversion of property under attachment), and was given a one-year suspended prison sentence and ordered to pay a fine. 27. On an unspecified date the first applicant appealed against that judgment. He argued, firstly, that he could not be held criminally liable and that the only issue that could be raised was that of his civil liability, basing his submission, in particular, on the content of agreements he had concluded with Mr C.B. He also complained that he had not been given permission to consult certain accounting documents which could have established that his actions had at the very most amounted to misappropriation (appropriazione indebita) rather than to fraud. As regards the charge of fraudulent conversion of property under attachment, he added that he had never intended to break the law but had quite simply misunderstood the content of a Criminal Court decision of 3 July 1993 and had, accordingly, believed that the attachment order had been lifted; on realising his error, he had immediately informed the judge of the cars' whereabouts. Lastly, he maintained that the charge of fraud had become time-barred on 26 July 1993. 28. The complainant likewise appealed, arguing that the first applicant's criminal liability was beyond dispute because he had misrepresented their firm's financial position in order to make him accept a sum well below the value of his share. He further submitted that the charges were not time-barred and that the Commissario della Legge had not taken into account certain aggravating circumstances, the continuation of the offence in question or the commission of other offences, such as issuing bad cheques, fraudulent conversion of property under attachment and misappropriation. The complainant also claimed damages and sought to have the orders for the attachment of the first applicant's property upheld. 29. State Counsel (Procuratore del Fisco) sought to have the judgment at first instance upheld in its entirety. 30. In the meantime, the Commissario della Legge had ordered the lifting of the attachment of certain of the first applicant's assets. 31. Without holding a hearing, and on the basis of the documents relating to the investigation at first instance (alla stregua delle risultanze processuali), which the Commissario della Legge, Mr L.E., had added to the file for the appeal, the criminal appeals judge (Giudice delle appellazioni per le cause penali) held, in a judgment of 22 October 1993 which was deposited at the registry on the same day and became final on 26 November 1993, firstly that the applicant's objection that he had been unable to consult the accounting documents was manifestly ill-founded and in any event of no consequence, since he had never been denied access to the documents. The appellate judge further held that the file on the investigation at first instance showed that the first applicant had concealed his activities from his associate Mr C.B., and had falsely represented their firm's financial position to him for the purpose of deception; his conduct consequently amounted to fraud. As regards misappropriation, that offence – which had, moreover, become subject to limitation – did not preclude fraud, but should rather be added to it as a preliminary step towards it. The judge accordingly upheld the first applicant's conviction. As regards the offence of fraudulent conversion of property under attachment, the judge considered that the first applicant's explanation was legally irrelevant, since it referred to a decision delivered after the perpetration of the offences for which he had been tried. The judge also dismissed the objection that the charge of fraud was time-barred, pointing out that time had ceased to run while the expert report was being drawn up and that the limitation period had consequently not expired until 2 November 1993. The appellate judge also upheld the order for the attachment of the first applicant's property and referred the case to the civil courts for quantification of the damages to be paid to the complainant. Lastly, the judge forwarded the procedural documents to the Commissario della Legge, instructing him to ascertain whether the first applicant could be held liable for the fraudulent conversion on 24 June 1992 of a further car under attachment. 32. In the San Marinese judicial system there is no provision for an appeal on points of law. 33. On 30 January 1993 the second and third applicants were found in possession of drugs and arrested by the San Marinese police. Their arrest was confirmed later that day by the Commissario della Legge, Ms R.V. 34. On 1 February 1993 the second applicant was questioned by the Commissario della Legge. He stated, among other things, that he had come to San Marino to buy drugs for personal use and that he had asked the third applicant to join him, although she had not been aware of his intentions. 35. On 4 February 1993 the third applicant was questioned by the Commissario della Legge. She stated, in particular, that she had not known about the second applicant's activities. 36. On 4 February 1993 the Commissario della Legge refused an application for release (difesa a piede libero) which the third applicant had lodged earlier that day. On 15 February 1993 the appellate judge, Mr M.N., dismissed an appeal lodged by the third applicant on 8 February 1993. 37. On 25 February 1993 the third applicant again applied to the Commissario della Legge to be released. The Commissario della Legge, Ms R.V, instructed a “marshal” to question the third applicant, who reaffirmed her earlier statements but said that she did not wish to add anything. The Commissario della Legge allowed her application for release on 26 February 1993. 38. On 9 March 1993 the Commissario della Legge, Ms R.V., dismissed an application for release lodged by the second applicant on 5 March 1993. 39. On the same day the Commissario della Legge, Ms R.V., charged the second and third applicants with unlawful possession of and trafficking in drugs, and also charged the second applicant with unlawful possession of a firearm. She summoned them to stand trial on 26 April 1993. 40. At their trial the second and third applicants reaffirmed the statements they had made during the investigation. 41. In a judgment of 26 April 1993 another Commissario della Legge, Mr S.S., sentenced the second applicant to seven months' imprisonment for unlawful possession of drugs (without intent to supply) and acquitted him of the offence of unlawful possession of a firearm. He acquitted the third applicant with the benefit of the doubt. 42. On the same day the second applicant appealed against that judgment to the criminal appeals judge. 43. A second application for release lodged by the second applicant on 5 May 1993 was refused by the Commissario della Legge, Mr S.S., on 6 May 1993. On 10 May 1993 the second applicant appealed against that decision, but the appellate judge, Mr P.G., dismissed the appeal in a decision of 13 May 1993, on the grounds of the serious nature of the alleged offence and the second applicant's extensive criminal record. 44. On 17 May 1993 State Counsel appealed against the judgment of 26 April 1993, seeking the conviction of the second applicant – for possession of drugs with intent to supply, rather than merely for possession of drugs – and the third applicant. He argued, in particular, that the Commissario della Legge had failed to take into account a number of factors: as regards the second applicant, the strong evidence of his dealing in heroin, the serious nature of the offence, and his extensive criminal record, among other things, and, as regards the third applicant, her contribution to and physical participation in the offence, her knowledge of crime, and the fact that she had knowingly and willingly committed the offence with which she had been charged. 45. On 21 May 1993 the third applicant likewise appealed against the judgment of 26 April 1993, seeking acquittal on the ground that she had not committed the offence. 46. On 23 June 1993 the second and third applicants applied to the Council of the XII, challenging Mr M.N. and Mr P.G. as appellate judges, on the ground that they had dealt with the case at an earlier stage, having already dismissed their applications for release on appeal. 47. On 30 July 1993 the Council of the XII dismissed their application. 48. On 2 August 1993 the second applicant asked the appellate judge to request a ruling from the General Grand Council (Consiglio Grande e Generale) as to whether the absence of a public hearing on appeal during which the accused could give evidence in person to the appellate judge was in conformity with the San Marinese Constitution and with Article 6 § 1 of the Convention. On 13 August 1993 State Counsel submitted that the request should be declared manifestly ill-founded. 49. On 3 August 1993 Mr P.G. was appointed as the judge in the appeal proceedings. 50. On 20 August 1993 the third applicant requested a ruling as to whether, firstly, Article 54 of the Code of Criminal Procedure, pursuant to which all foreign nationals not resident within the territory of San Marino who were charged with a criminal offence had to be detained, and, secondly, the absence of an independent tribunal to decide on preventive measures in individual cases, were in conformity with the Constitution and with Article 5 and Article 6 § 2 of the Convention. On 23 August 1993 the third applicant likewise requested a ruling as to whether the absence of a public hearing on appeal during which the accused could be heard in person by the appellate judge was constitutional. 51. In a judgment delivered on 24 August 1993 and made public on 27 August 1993 the appellate judge sentenced the second applicant to one year and two months' imprisonment for possession of drugs with intent to supply, and the third applicant to ten months' imprisonment. The judge referred to the statements made by the second and third applicants during the proceedings at first instance. He held, in particular, that the second applicant was guilty of a serious offence and had also attempted to conceal the third applicant's guilt, and that the third applicant was guilty on account of the strong evidence against her; she had been aware of the second applicant's criminal intentions and had made a conscious decision to participate in the offence. 52. The judge further held that the second and third applicants' requests for rulings as to constitutionality were manifestly ill-founded. As regards, in particular, the absence of a public hearing on appeal, the judge concurred with the applicants' arguments, which were based on the principles of international law, but held that the objection had been raised with a view to revising the Code of Criminal Procedure, a process that could not be initiated by means of a declaration of unconstitutionality. 53. Criminal procedure is governed in San Marinese law by the 1878 Code of Criminal Procedure, as amended by Law no. 43 of 18 October 1963 and Law no. 86 of 11 December 1974. 54. The shortened form of procedure is governed by Articles 174 to 185 of the Code of Criminal Procedure. It is applicable to offences carrying either a prison sentence of up to three years or a fine. Proceedings are conducted before the Commissario della Legge, who must set the case down for trial within thirty days and may in the meantime carry out summary investigations (indagini sommarie) and take emergency measures. The Commissario della Legge summons the accused and any witnesses to appear before him at the hearing. The summons is also served on State Counsel (Article 175), who is required to take part in the proceedings as prosecutor (magistrato requirente). 55. At the hearing, the Commissario della Legge examines the witnesses and then the defendant. Next, State Counsel gives his address and counsel for the defence makes his submissions. Finally, the defendant may put forward any arguments he considers necessary for his defence (esporre cio' che crede in sua discolpa) (Articles 176-79). 56. The Commissario della Legge deliberates in private, draws up the operative provisions and, on returning to the courtroom, makes them public by reading them out. The text of the judgment must be deposited at the registry within thirty days of delivery (Article 181). The Commissario della Legge may also adjourn the case if he considers that further information is required (Article 182). 57. Under the ordinary procedure, preliminary investigations are conducted by the Commissario della Legge and hearings are held before the first-instance judge (magistrato). 58. In addition, section 24 of the Judicature Act (Law no. 83 of 28 October 1992) provides that, pending the entry into force of a new Code of Criminal Procedure, only the provisions governing the shortened form of procedure are to be applied to offences committed from the day after the publication of that Act in the Official Gazette (Bollettino Ufficiale). The functions of investigating and trial judge are, however, to be discharged by two different Commissari della Legge. 59. Under Articles 186 et seq. of the Code of Criminal Procedure, appeals against a judgment at first instance may be lodged by the accused, State Counsel or the complainant (but only in relation to the latter's civil interests). 60. Article 196 of the Code of Criminal Procedure provides that the appellate judge has jurisdiction to deal with all aspects of a case (piena cognizione del giudizio). If an appeal is lodged solely by the accused, the judge may neither impose a harsher penalty nor withdraw any advantages granted. 61. Appeal proceedings are conducted without any further investigative measures being taken; the parties make their submissions in the same order as at first instance. The accused is not entitled to be heard in person by the appellate judge. 62. An investigative hearing may nonetheless be held at the appeal stage if the judge considers it necessary to repeat investigative measures that have been declared void or to carry out new ones (Article 197). The hearing is held before the Commissario della Legge. 63. Article 198 of the Code of Criminal Procedure provides that judgments are to be delivered at a public hearing in the presence of the Captains-Regent (Capitani Reggenti), the accused, his counsel and the other parties; the registrar reads out the judgment. 64. Under Article 197 of the San Marinese Criminal Code, anyone who unlawfully appropriates another's property of which he is in possession in any capacity whatsoever is guilty of the offence of misappropriation (appropriazione indebita). 65. Under Article 204 of the Criminal Code, anyone who secures an unfair material advantage by misleading another through deception or misrepresentation is guilty of the offence of fraud (truffa).
| 1
|
train
|
001-76254
|
ENG
|
POL
|
CHAMBER
| 2,006
|
CASE OF TELECKI v. POLAND
| 4
|
Violation of Art. 5-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
| null |
7. The applicant was born in 1959 and lives in Lublin, Poland. 8. On 1 February 1999 the Bielsko-Biała District Court (Sąd Rejonowy) ordered that the applicant be remanded in custody in view of the reasonable suspicion that, acting in an organised group, he had committed fraud. The applicant appealed against this decision, but on 19 March 1999 the BielskoBiała Regional Court dismissed the appeal, finding that his detention was necessary to ensure the proper course of the proceedings. 9. On 13 April 1999 the Lublin Regional Court (Sąd Okręgowy), to which the case was in the meantime transferred, further prolonged the applicant’s detention. The court relied in particular on the complexity of the case, the need to obtain expert opinions and the seriousness of the charges against the applicant. In addition, the court considered that there existed a danger that the applicant, if released, would obstruct the process of collection of evidence. The applicant appealed. On 20 May 1999 the Lublin Court of Appeal (Sąd Apelacyjny) dismissed the appeal. 10. By a decision of 16 June 1999 the Lublin Court of Appeal further prolonged the applicant’s detention on remand. The court considered that the reasons for which the detention had been ordered still existed and that the prosecuting authorities continued the process of obtaining evidence. The applicant’s appeal against this decision was dismissed on 29 July 1999 by the Supreme Court (Sąd Najwyższy) relying on the strong suspicion against the applicant and on the complexity of the case. 11. In September 1999 the applicant was indicted before the Biskupiec District Court. The bill of indictment, directed against the applicant and one coaccused, concerned 16 counts of fraud allegedly committed by them between July and September 1997. 12. On 17 September 1999 the Biskupiec District Court prolonged the applicant’s pre-trial detention relying on the strong suspicion against the applicant and the severity of the anticipated sentence. The court further stated that there was a risk of absconding, in particular, with regard to the second co-accused. The applicant appealed but his appeal was dismissed by the Olsztyn Regional Court on 15 October 1999. 13. On 14 March 2000 the Biskupiec District Court further prolonged the applicant’s detention. The court found that the grounds for the detention given in previous decisions were still valid. On 31 March 2000 the Olsztyn Regional Court dismissed the applicant’s appeal against this decision. 14. At an unspecified later date the applicant requested his release. By decisions of 25 April 2000 and of 10 May 2000, the Biskupiec District Court, rejected his requests, considering that the grounds for detaining the applicant still remained valid. 15. By a decision of 28 June 2000 the Biskupiec District Court prolonged the applicant’s detention until 30 November 2000. The court repeated the reasons given previously. On 14 July 2000 the Olsztyn Regional Court dismissed his appeal against this decision finding that the period of his detention was not excessive. 16. The first trial hearings scheduled for 11 and 12 April 2000 were adjourned as the applicant’s lawyer failed to appear before the court. The court appointed another lawyer for the applicant. The trial started on 8 November 2000. 17. At the hearing held on 21 November 2000 the Biskupiec District Court prolonged the applicant’s detention until 31 January 2001. The court stated that the reasons justifying the applicant’s detention remain valid. The trial court held the hearings on 12 December 2000 and 16 January 2001. 18. By a decision of 31 January 2001, upheld by the Olsztyn Regional Court on 9 February 2001, the Biskupiec District Court prolonged the applicant’s detention until 31 May 2001, finding no grounds on which to order his release under Article 259 of the 1997 Code. The trial court further established that the process of hearing witnesses was incomplete and consequently retaining the applicant in custody was necessary to secure the proper conduct of the proceedings. The court also held that the measure was justified by the severity of the anticipated sentence and the danger that the applicant would interfere with the course of the proceedings. 19. The court held hearings on 20 February, 27 February, 28 March, 24 April and 29 May 2001. From December 2000 till May 2001 the court heard over 60 witnesses. 20. On 9 April 2001, 30 April 2001 and 14 May 2001 the Biskupiec District Court rejected other requests for the applicant’s release. 21. On 31 May 2001 the Biskupiec District Court prolonged the applicant’s detention until 31 July 2001 repeating the grounds given on the previous occasion. The applicant appealed. On 20 June 2001 the Olsztyn Regional Court dismissed his appeal and upheld the contested decision. 22. On 26 June 2001 the Biskupiec District Court convicted the applicant of 16 counts of fraud and sentenced him to 5 years’ imprisonment. The applicant lodged an appeal. 23. On 22 January 2002 the Olsztyn Regional Court held a hearing in the appellate proceedings, at which the applicant’s lawyer was present. The court dismissed the applicant’s appeal and upheld the contested judgment. 24. The applicant lodged a cassation appeal but on 28 November 2002 the Supreme Court dismissed his cassation appeal as unsubstantiated. 25. The Code of Criminal Procedure of 1997 (“1997 Code”), 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). 26. 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 committing another, serious offence; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence.” 27. 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 codefendants] 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.” 28. 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.” The 1997 Code not only sets out maximum statutory time-limits for detention on remand but also, in Article 252 § 2, lays down that the relevant court – within those time-limits – must in each detention decision determine the exact time for which detention shall continue. 29. 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. 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.
| 1
|
train
|
001-61720
|
ENG
|
AUT
|
CHAMBER
| 2,004
|
CASE OF RADOVANOVIC v. AUSTRIA
| 3
|
Violation of Art. 8;Just satisfaction reserved
|
Christos Rozakis
|
9. The applicant was born in Vienna in 1979 and lives at present in Serbia and Montenegro. 10. The applicant stayed with his parents, who are both citizens of Serbia and Montenegro and lawfully residing in Vienna, for about seven months after his birth in Austria. He then lived with his grandparents in the former Federal Republic of Yugoslavia, now Serbia and Montenegro. There he completed primary school, though he spent the yearly school holidays with his parents in Austria. 11. In 1989, at the age of 10 years, he came back to live with his parents and his sister in Austria, where he finished secondary school and completed a three-year vocational training as a butcher. During this time, he resided lawfully in Austria and, on 5 May 1993, he received an unlimited residence permit (unbefristeter Sichtvermerk). 12. On 30 July 1997 the Vienna Juvenile Court (Jugendgerichtshof) convicted the applicant of aggravated robbery and burglary and sentenced him to thirty months’ imprisonment, out of which twenty-four months were suspended with a probationary period of three years. It found that the applicant, on 29 January 1997, together with his co-accused born in 1980, had knocked down the victim with a perfume bottle and had stolen cash in the amount of 65,000 Austrian schillings (ATS). On 11 and 14 April 1997 they had attempted to steal another victim’s daily cash receipt by using a wheel nut tool. Still on 14 April 1997, they had broken into that victim’s car and had taken away his daily cash receipt and a cheque, totalling almost ATS 125,000. When fixing the sentence, the court considered as mitigating circumstances that the applicant had so far no criminal record, that he had admitted the offences and had partly made amends (Schadensgutmachung), and that in two instances the offences remained attempts. As aggravating circumstances the court considered the concurrence of two different offences, the amount of damage, the injury of the victim and the qualification of the burglary. The judgment became final in the absence of an appeal by the applicant. 13. On 30 September 1997 the Vienna Federal Police Office (Bundespolizeidirektion Wien) issued a residence prohibition of unlimited duration against the applicant. It referred to Section 18 §§ 1 and 2 (1) of the 1992 Aliens Act (Fremdengesetz) according to which a residence prohibition is to be issued against an alien, if he has been sentenced to more than three months’ imprisonment by final judgment of a domestic court. 14. The applicant served his prison sentence until 14 October 1997. Subsequently he was transferred to a detention centre with a view to his expulsion. 15. On 28 October 1997 the Vienna Public Security Authority (Sicherheitsdirektion) dismissed the applicant’s appeal. Noting that the applicant had lived for seven months after his birth in Austria and that, after his return from former Yugoslavia in 1989, he had continuously lived with his family in Austria for eight years, it found that the residence prohibition at issue constituted an interference with his right to private and family life. However, it was necessary to achieve the aims set out in Article 8 § 2 of the Convention, namely the prevention of disorder and crime and the protection of the rights of others. In particular, the applicant had committed aggravated robbery by using a weapon. Given the seriousness of the offences and the implied disrespect for physical safety and the property of others, no positive prognosis was possible. Therefore, the interest in issuing a residence prohibition of unlimited duration against the applicant prevailed over the applicant’s interest in staying in Austria. 16. On 11 November 1997 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). He argued that the lower authorities had incorrectly established the facts and had failed to give sufficient reasons for their decisions. He stressed in particular that his family had already been residing lawfully in Austria for decades and that he had completed secondary school and vocational training, upon which he had legally worked as a butcher. Before his conviction by the Juvenile Court, the applicant had had no criminal record and the offences had been committed within a very short period of two and a half months. Since his grandparents had died in the meantime, he had no other relatives in Yugoslavia. The centre of his private and family life was exclusively in Austria. Referring to the Moustaquim and Beldjoudi judgments of the European Court of Human Rights, the applicant argued that the authorities had failed to comply with the Convention standards. In particular they had failed to balance correctly his interests in respect for his private and family life against public interests. There was no pressing need to issue an unlimited residence prohibition against him. 17. On 28 November 1997 the Constitutional Court declined to deal with the matter and remitted the complaint to the Administrative Court (Verwaltungsgerichtshof). 18. On 4 December 1997 the Administrative Court dismissed the complaint. It found that the Public Security Authority had duly considered the applicant’s private and family situation and had correctly assessed the interests involved when issuing the residence prohibition. Furthermore the Administrative Court found that in the cases of Moustaquim and Beldjoudi the persons concerned had had stronger family ties in the host country than the applicant. The decision was served on the applicant’s counsel on 16 January 1998. 19. On 4 February 1998 the applicant was expelled to the former Federal Republic of Yugoslavia, now Serbia and Montenegro. 20. On 14 October 1997 the applicant requested the Vienna Federal Police Office to revoke the residence prohibition issued against him in view of Section 38 § 1 (4) of the 1997 Aliens Act, which was to enter into force on 1 January 1998. Pursuant to that provision, a residence prohibition may not be issued “where a foreigner has grown up in Austria from an early age on and has been lawfully residing there for many years”. Section 114 § 3 of the 1997 Aliens Act establishes that if a residence prohibition has not expired at the date of the entry into force of the 1997 Aliens Act, the residence prohibition has to be regarded as a residence prohibition issued under the 1997 Aliens Act. However, the residence prohibition has to be revoked if it was not lawful to issue it under the 1997 Aliens Act. 21. On 25 March 1998 the Federal Police Office dismissed this request. It noted in particular that the applicant did not comply with the requirements of the above provision, since he had not grown up in Austria within the meaning of Section 38 § 1 (4). Therefore, the imposition of the residence prohibition was also lawful under the 1997 Aliens Act. 22. In his appeal of 14 April 1998 the applicant complained that the Federal Police Office had incorrectly applied the provision at issue. 23. On 27 April 1998 the Vienna Public Security Authority dismissed his appeal. It noted that the provision at issue required that a foreigner had commenced growing up in Austria at the age of two or three years or even younger, whereas the applicant had only been in Austria during the first seven months of his life and had come back when he was already ten. Therefore, he clearly did not comply with that provision. 24. The applicant did not appeal to the Constitutional Court and the Administrative Court.
| 1
|
train
|
001-100287
|
ENG
|
BGR
|
CHAMBER
| 2,010
|
CASE OF GEORGIEVA AND MUKAREVA v. BULGARIA
| 4
|
Violation of P1-1
|
Georgieva;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Pavlina Panova;Peer Lorenzen;Rait Maruste;Renate Jaeger
|
6. The applicants were born in 1935 and 1957 respectively and live in Varna. They are mother and daughter. 7. In 1985 the first applicant and her husband bought from the Varna municipality an apartment of 54 square metres, situated in the centre of the city, which had become State property by virtue of the nationalisations carried out by the communist regime in Bulgaria after 1945. 8. On an unspecified date after that the first applicant's husband died and his property was inherited by the two applicants. 9. In February 1992 the Restitution Law entered into force. 10. On 8 July 1992 one of the heirs of the former pre-nationalisation owner of the flat brought proceedings against the applicants under section 7 of the Restitution Law. In a final judgment of the Supreme Court of Cassation of 7 July 1997 the action was allowed partially, the domestic courts finding that the plaintiff could only claim half of the property. 11. The courts found that the applicants' title over half of the property was null and void on two grounds: 1) their apartment had been part of a bigger apartment, which had, prior to 1985 and in breach of the relevant construction requirements, been divided by the State into two; and 2) the area where the apartment was located had been earmarked for the construction of buildings of more than three storeys and the applicants' building was of two storeys; the relevant legislation at the time prohibited the sale of apartments in such buildings. 12. On 20 November 1998 the applicants requested to be compensated with compensation bonds for half of the property. The request was granted and in January 2003 the applicants received bonds for 10,300 Bulgarian levs (BGN), the equivalent of approximately 5,280 euros (EUR), in accordance with an expert valuation of a half of their apartment drew up in 2001 or 2002. On 25 November 2004 the applicants sold their bonds for approximately 50% of their face value and received BGN 5,145, the equivalent of EUR 2,640. 13. In the meantime, on 8 December 1997, following a legislative amendment whereby the time-limit to bring an action under section 7 of the Restitution Law was renewed, the remaining heirs of the former pre-nationalisation owner brought such an action against the applicants regarding the second half of the apartment. 14. The action was granted in a final judgment of the Supreme Court of Cassation of 14 July 2004. Putting forward arguments identical to the ones concerning the first half of the apartment (see paragraph 11 above), the courts found that the applicants' title to the second half of the property was likewise null and void. 15. The applicants did not apply for compensation bonds for that half of the apartment, as they were entitled to. 16. On several occasions after 1997 the first applicant requested to be provided with municipal housing but was informed that no such housing was available. By 2003 the two applicants and the second applicant's family were still living in the disputed flat. In December 2003 they vacated it and rented another apartment. In 2004 the second applicant bought another flat and her family and the first applicant moved in there. 17. The relevant background facts and domestic law and practice have been summarised in the Court's judgments in the cases of Velikovi and Others v. Bulgaria (nos. 43278/98, 45437/99, 48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01, and 194/02, 15 March 2007) and Tsonkovi v. Bulgaria (no. 27213/04, §§ 14-15, 2 July 2009).
| 0
|
train
|
001-94293
|
ENG
|
RUS
|
CHAMBER
| 2,009
|
CASE OF PISHCHALNIKOV v. RUSSIA
| 2
|
Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award
|
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
|
6. The applicant was born in 1959 and lived, until his arrest, in the town of Revda in the Sverdlovsk Region. Prior to the events described below the applicant had never been accused of or charged with any crime. 7. On 15 December 1998 the applicant was arrested on suspicion of aggravated robbery. According to the Government, a police investigator apprised the applicant of the rights of an accused, including the right to be assisted by counsel. The Government insisted that the record of the applicant’s arrest contained a line which read as follows: “[the applicant] needs services by a retained lawyer Mr L.” The Government did not produce a copy of the arrest record, despite the Court’s request to that effect. The applicant confirmed that he had made a handwritten note in the arrest record, asking to be assisted by counsel, Mr L. He had also included Mr L.’s phone number and home address in the record. The applicant stressed that after the investigator had drawn up the arrest record, he had commenced interrogating the applicant about his participation in the robbery on 10 December 1998. As a consequence of the interrogation the applicant confessed to “[having gone] to a motorway together [with six other individuals] to seize a cargo by fraud”. The applicant also noted that one of his accomplices had had a gun which he had planned to use as a threat. 8. On 16 December 1998 an investigator again interrogated the applicant about the circumstances surrounding the robbery. According to the applicant, the investigator disregarded his request for legal assistance and proceeded to questioning. During that interrogation the applicant described in detail the preparations for the robbery, his meetings with other co-accused and the subsequent events on 10 December 1998. He also confessed to having participated with his co-accused in other criminal activities, including a murder, kidnapping, hijacking and unlawful possession of weapons. The Government did not produce a copy of the interrogation record drawn up on 16 December 1998. 9. On the following day the Sverdlovsk Regional Prosecutor-Criminalist performed an investigative experiment aimed at verifying the applicant’s statements made during the questioning on 15 and 16 December 1998. In the course of the experiment the applicant was taken to various places where he and his accomplices had allegedly planned or committed criminal offences. In each location the applicant, in the presence of attesting witnesses, answered the prosecutor’s questions pertaining to various criminal activities committed by the criminal group in which the applicant had taken part. It appears from the record of the investigative experiment that the prosecutor commenced the experiment by asking the applicant whether he agreed to participate in the experiment in the absence of a lawyer. The applicant did not object. The prosecutor further informed the applicant of his constitutional right not to make self-incriminating statements and asked whether he was willing to show the crime scenes, describe his and his accomplices’ actions and reproduce his actions at the crime scene. The applicant agreed and signed the record. 10. On 18 December 1998 the Achitskiy District Prosecutor authorised the applicant’s detention on remand. The detention was subsequently extended on a number of occasions by a prosecutor or a court. 11. On 24 December 1998 a senior investigator of the Sverdlovsk Regional Prosecutor’s office charged the applicant with aggravated robbery. The indictment record was served on the applicant in the presence of free legal aid counsel, Ms K. On the following day the senior investigator, in the presence of counsel, Ms K., informed the applicant of his procedural rights, including the right to free legal aid. The applicant made a handwritten note in the record, stating that he was in need of free legal aid. 12. During subsequent interrogations on 15 January, 1, 10, 16 and 25 February, 29 March, 15 April and 30 August 1999 the applicant refused legal assistance, each time making handwritten notes in the interrogation records to that effect. He also noted that his refusal was not due to lack of financial resources but his fear of a possible “information leak”. The Government provided the Court with copies of the first few pages of the interrogation records, containing the applicant’s handwritten notes. The pages pertaining to the statements which the applicant had made during the questioning were not enclosed. 13. On 27 October 1999 an investigator from the Sverdlovsk Regional Prosecutor’s office questioned the applicant about his involvement in forgery of documents in August 1998. On the applicant’s request Mr B., legal aid counsel, was called to assist him. The applicant confessed to having forged two national passports, but did not admit to having used them. 14. On 9 November 1999 the applicant, assisted by legal aid counsel, Mr Sh., studied reports of various expert examinations. Two days later he was again questioned in the absence of a lawyer. The first two pages of the interrogation record, presented to the Court by the Government, contain the applicant’s signature confirming his knowledge of the accused’s procedural rights and his refusal of legal assistance. 15. The Government, supporting their assertion with extracts of interrogation records bearing the applicant’s handwritten notes, submitted that during the remaining three interrogations on 17 November, 6 and 22 December 1999 the applicant had refused legal assistance. The Government noted that the refusal was not conditioned by the applicant’s lack of financial resources. 16. On 30 December 1999 the applicant was served with the final version of the bill of indictment comprising all charges. In particular, the prosecution authorities accused the applicant of having participated in a stable armed criminal group and having committed criminal offences within that criminal group, including several counts of aggravated robbery, hijacking, theft, aggravated kidnapping, unlawful deprivation of liberty, forgery of documents, murder, attempted manslaughter, torture and unlawful possession of weapons. Following the service of the bill of indictment an investigator questioned the applicant. Mr B. was appointed to act as the applicant’s counsel. The interrogation record, provided to the Court by the Government, consisted of a three-page printed template, in which the dates, the investigator’s and applicant’s names, the applicant’s personal data and his statements made during the interrogation were filled in by hand. The relevant part read as follows (the pre-printed part in roman script and the part written by hand in italics): “Before the inquiry [the applicant] is informed that by virtue of the requirements of Article 149 of the RSFSR Code of Criminal Procedure and on the basis of Articles 46, 47, 48, 49, 77, 141-1, 151, 152, 154, 202, 202-2 of the RSFSR Code of Criminal Procedure he has a right: to defend himself, to know what he is charged with and to give explanations about the charges brought, to submit evidence, to lodge requests, to complain to a court about the unlawfulness and ill-foundedness of his arrest and detention, to study records of investigative actions in which he participated, [to study] materials which were submitted to a court as evidence of the lawfulness and well-foundedness of the authorisation and extensions of [his] detention on remand and, after the end of the pre-trial investigation, [to study] all materials of the criminal case file, to copy any and in any amount information out of [the case file], to be assisted by counsel from the moment when the arrest record or a detention order or a bill of indictment is served on [him], to have private meetings with counsel, to lodge complaints with a court against the arrest or extension of detention and to participate in a court hearing when [those complaints] are examined, to participate in trial hearings, to challenge [the bench, prosecutor, other participants of criminal proceedings], to appeal against investigators’, interrogators’, prosecutors’ and courts’ actions and decisions, to defend his rights and lawful interests by any other means and measures which do not run contrary to the law, and [he] also [has] the right [to make pleadings at the end of the trial] as a defendant. Moreover, [the applicant] was informed that by virtue of Article 51 of the Constitution of the Russian Federation, no one is obliged to make self-incriminating statements and [statements] incriminating his/her spouse and close relatives, whose list is determined by the federal law. [the applicant’s signature] According to Article 17 of the RSFSR Code of Criminal Procedure I was informed of my right to make statements in my native language and to be assisted by an interpreter. I speak Russian. I do not need the services of an interpreter and want to make statements in Russian. [the applicant’s signature] Before the interrogation [the applicant] stated: I need to be assisted by counsel appointed by a Bar Association. [the applicant’s signature] I can give the following explanation in relation to the questions put to me: The content of the charges against me was explained to me. I partially admit my guilt of having committed crimes under Article 327 § 3 and Article 327 § 2 of the Criminal Code of the Russian Federation. In fact, I forged two passports of USSR citizens. One of [the passports] was issued in the name of Mr M., and the other one [was issued] in the name of Mr Z. I glued pictures of myself in those passports and forged the cameo printing “USSR Passport” with a wooden homemade engraving, which I had made myself. I bought Mr Z.’s passport in Revda town railway station from Mr Z. for 50 Russian roubles; [I] took Mr M.’s passport from my house where it was kept. In my house, that is at the [following address]: ... where I lived temporarily. [I] note that my mother lives permanently at that address. I have never used passports in the names of Mr Z. and Mr M. I do not confess to [having committed] other criminal offences with which I am charged. By virtue of Article 51 of the Russian Constitution I will no longer make any statements. My words recorded correctly and read by me. [the applicant’s and his lawyer’s signatures].” 17. No further investigative actions were performed until 26 January 2000, when the applicant, in the presence of counsel, Mr B., was served with a copy of the decision on the closing of the pre-trial investigation. Between 7 February and 20 June 2000 the applicant and counsel B. studied the case file. 18. On 14 August 2000 the applicant and his co-defendants were committed to stand trial before the Sverdlovsk Regional Court. The Regional Court received the case file on the same day. 19. According to the Government, it was not until 24 April 2001 that the Sverdlovsk Regional Court fixed the first trial hearing for 29 May 2001. Ms Ya. was appointed to act as the applicant’s lawyer at the trial. 20. At the hearing on 29 May 2001 the Regional Court adjourned the proceedings until 4 June 2001 to allow the defendants to study the case file materials. 21. Between 4 and 11 July 2001 the Regional Court held eight hearings. The following hearing, fixed for 11 July 2001, was postponed due to a co-defendant’s illness. The proceedings were stayed until 7 August 2001. 22. Between 7 August and 18 December 2001 sixty-five hearings were held. The Sverdlovsk Regional Court heard a number of witnesses. A victim of a car hijacking, Ms Lo., asked to be dismissed from the proceedings and for her statements given at the pre-trial investigation to be taken into account. She noted that her pre-trial statements were true, but she did not want to testify in open court as she was afraid of the applicant and his co-defendants. The Regional Court found that Ms Lo.’s fears were justified and dismissed her from the proceedings. 23. In October 2001 the applicant lodged a complaint with the Regional Court alleging ineffective legal representation and asking to appoint another counsel or, in the alternative, to be allowed to defend himself. The applicant asserted that Ms Ya. had no knowledge of the criminal case file and had not held any private meetings with him to discuss the strategy of his legal defence. On 22 October 2001 the Sverdlovsk Regional Court dismissed that request, finding that Ms Ya. was an experienced and well-qualified lawyer who defended the applicant effectively. The Regional Court also noted that by virtue of Article 50 § 2 of the RSFSR Code of Criminal Procedure the participation of a lawyer was mandatory in the trial hearings, having regard to the gravity of the charges against the applicant. At the same time, the applicant had a right to retain counsel of his own choosing, but he refused to do so. Therefore, there were no grounds to dismiss Ms Ya. from the proceedings. 24. On 17 January 2002 the Sverdlovsk Regional Court, composed of one professional judge and two lay judges, found the applicant guilty of aggravated murder, torture, kidnapping, unlawful deprivation of liberty, theft, robbery, attempted robbery, car hijacking, participation in a criminal group and forgery of documents. The Regional Court sentenced him to twenty-two years’ imprisonment. While holding the applicant guilty on a charge of having taken part in a criminal group and having committed a number of criminal offences within it, the Regional Court noted that the co-defendants, including the applicant, denied their guilt in open court. However, it cited their statements given during the pre-trial investigation in support of its findings of guilt. In particular, it gave a detailed account of the applicant’s statements made on 15 and 16 December 1998, in which the latter confessed his guilt to a number of criminal offences. At the same time the Regional Court excluded from evidence the records of the remaining applicant’s interrogations carried out in the absence of counsel, finding that the counsel’s presence during the interrogations had been mandatory and the applicant’s refusals of legal assistance could not be accepted. The Regional Court reached a similar conclusion in respect of the majority of the interrogations performed with other co-defendants, finding as follows: “refusals of legal assistance handwritten by [the accused] in the [interrogation] records due to the fear of a leak of information should be considered involuntary as in reality lawyers were not appointed during the interrogations”. 25. The applicant appealed against the conviction. In his appeal statement he complained, inter alia, that he had been denied legal assistance during the pre-trial investigation and that his legal defence during the trial had been ineffective. 26. According to the Government, on 14 March 2002 a Sverdlovsk Regional Court judge held that the applicant and his co-defendants could study the case file materials from 22 to 27 March 2002. In addition, from 29 May to 11 October 2002 the applicant studied four volumes of the case file. 27. In August 2002 the applicant asked for legal assistance for preparation of the appeal statement. He also asked for his sister to be appointed as his “public defender”. In reply, on 12 August 2002 a judge of the Sverdlovsk Regional Court informed the applicant that the Russian law did not provide him with the right to be assisted by a relative during appeal proceedings. The judge, however, noted that he could have asked a court to provide him with free legal assistance. According to the Government, such a request was never lodged by the applicant. 28. On 2 December 2002 the case file was sent from the Sverdlovsk Regional Court to the Supreme Court of the Russian Federation for an examination. 29. On 8 August 2003 the Supreme Court of the Russian Federation amended the judgment of 17 January 2002. The Supreme Court discontinued the proceedings against the applicant on the charges of torture, unlawful deprivation of liberty and one count of attempted robbery because his participation in those criminal offences had not been proved. The Supreme Court also reduced the applicant’s sentence by two years. While upholding the remainder of the applicant’s conviction, the Supreme Court endorsed reasons given by the Regional Court, once again relying on the statements made by the applicant on 15 and 16 December 1998. The applicant was not assisted by a lawyer at the appeal hearing. 30. Article 47 of the old CCrP read as follows: “A lawyer should be called to take part in a case at the moment when charges are brought or, if a person suspected of a criminal offence is arrested or detained before charges are brought against him, at the moment when the arrest record or a detention decision is read out to him. If the lawyer chosen by a suspect or an accused is unable to appear within twenty-four hours after the arrest or detention has been effected, an interrogator, investigator, or a prosecutor may offer the suspect or accused the possibility to retain another lawyer or provide him with a lawyer through the assistance of the Bar Association.” 31. Article 48 of the Code established that a lawyer should be called by an accused, his legal representative or other persons on a request or with the consent of the accused. An investigator or court should to provide the suspect or the accused with counsel at his request. In cases where counsel chosen by the accused was not available for a long period of time, the investigator or the court could suggest that the accused choose another counsel or, as an alternative, appoint another counsel for the accused. 32. If the accused was charged with criminal offences punishable by death penalty, participation of counsel was imperative in court proceedings and was also mandatory in the pre-trial investigation from the moment when charges were brought. In such a case, if the accused, his legal representative or other persons on his request did not invite counsel, an investigator, prosecutor or court should ensure the accused’s legal representation in the case (Article 49). 33. An accused could refuse legal assistance at any moment of the criminal proceedings. If the accused was charged with criminal offences punishable by death penalty, such a refusal was not binding for a court, an investigator or a prosecutor (Article 50). 34. Article 51 of the new CCrP, in so far as relevant, reads as follows: “1. Participation of legal counsel in the criminal proceedings is mandatory if: 1) the suspect or the accused has not waived legal representation in accordance with Article 52 of this Code; 2) the suspect or the accused is a minor; 3) the suspect or the accused cannot exercise his right of defence by himself owing to a physical or mental handicap; 3.1) the court proceedings are to be conducted [in the absence of the accused] in accordance with Article 247 § 5 of this Code; 4) the suspect or the accused does not speak the language in which the proceedings are conducted; 5) the suspect or the accused faces serious charges carrying a term of imprisonment exceeding fifteen years, life imprisonment or the death penalty; 6) the criminal case falls to be examined by a jury trial; 7) the accused has filed a request for the proceedings to be conducted [without a hearing] under Chapter 40 of this Code; 2. ... 3. In the circumstances provided for by paragraph 1 above, unless counsel is retained by the suspect or the accused, or his lawful representative, or other persons on request, or with consent, of the suspect or the accused, it is incumbent on the investigator, prosecutor or the court to ensure participation of legal counsel in the proceedings.” 35. Article 52 of the Code provides that a suspect or an accused may refuse legal assistance at any stage of criminal proceedings. Such a waiver may only be accepted if made on the initiative of the suspect or the accused. The waiver must be filed in writing and must be recorded in the official minutes of the relevant procedural act. The refusal of legal assistance may not strip the suspect or accused of the right to ask to be assisted by counsel during further procedural actions in the criminal case. The admission of a lawyer may not lead to the repetition of the procedural actions which have already been performed by that time. 36. Article 373 of the Code provides that the appeal instance examines appeals with a view to verifying the lawfulness, validity and fairness of judgments. Under Article 377 §§ 4 and 5 of the Code, the appeal instance may directly examine evidence, including additional material submitted by parties. 37. Article 376 of the Code provides that upon receipt of the criminal case and the statements of appeal, the judge fixes the date, time and place for a hearing. The parties shall be notified of the date, time and place of the hearing no later than fourteen days before the scheduled hearing. The court determines whether the remanded convict should be summoned to the hearing. If the remanded convict has expressed the wish to be present at the examination of his appeal, he has the right to participate in person or to state his case via video link. The manner of his participation in the hearing is to be determined by the court 38. Article 413 of the Russian Code of Criminal Procedure, setting out the procedure for re-opening of criminal cases, reads, in so far as relevant, as follows: “1. Court judgments and decisions which became final should be quashed and proceedings in a criminal case should be re-opened due to new or newly discovered circumstances. ... 4. New circumstances are: ... (2) a violation of a provision of the European Convention for the Protection of Human Rights and Fundamental Freedoms committed by a court of the Russian Federation during examination of a criminal case and established by the European Court of Human Rights, pertaining to: (a) application of a federal law which runs contrary to provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms; (b) other violations of provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms; (c) other new circumstances.” 39. Rule 93 of the Standard Minimum Rules for the Treatment of Prisoners (Resolution (73)5 of the Committee of Ministers of the Council of Europe) provides: “An untried prisoner shall be entitled, as soon as he is imprisoned, to choose his legal representation ... and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him and to receive, confidential instructions. At his request, he shall be given all necessary facilities for this purpose. ... Interviews between the prisoner and his legal adviser may be within sight but not within hearing, either direct or indirect, of a police or institution official.” 40. Furthermore, the recommendation of the Committee of Ministers to Member States of the Council of Europe on the European Prison Rules (Rec. (2006)2), adopted on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies, in so far as relevant, reads as follows: “Legal advice 23.1 All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice. 23.2 Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense. ... 23.5 A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security.” 41. Article 14 § 3 (b) of the International Covenant on Civil and Political Rights (ICCPR) provides that everyone charged with a criminal offence is to be entitled “[t]o have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing”. 42. Article 48 of the Charter of Fundamental Rights states that “[r]espect for the rights of the defence of anyone who has been charged shall be guaranteed”. Article 52 § 3 further states that the right guaranteed under Article 48 is among those who have the same meaning and the same scope as the equivalent right guaranteed by the European Convention on Human Rights.
| 1
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train
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001-77356
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ENG
|
FRA
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CHAMBER
| 2,006
|
CASE OF L.L. v. FRANCE
| 1
|
Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed
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András Baka;Elisabet Fura;Jean-Paul Costa;Mindia Ugrekhelidze
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4. The applicant was born in 1957 and lives in France. 5. On 5 February 1996 the applicant’s wife filed a divorce petition with the appropriate tribunal de grande instance. In an interlocutory decision of 26 March 1996, the family-affairs judge, finding that the couple were not reconciled, gave the petitioner leave to bring divorce proceedings against her husband and ruled on the interim arrangements. The judge granted parental responsibility for the children, who were born in 1985 and 1988, jointly to their father and mother, decided that they should habitually live with their mother and made provisions for the applicant’s right of visiting contact. The judge also ordered a welfare report together with a medical and psychological examination of all the members of the family. The welfare report, filed on 9 July 1996, revealed that the applicant was present and active as a father and had developed a sound relationship with his children. It recommended that he be granted broad rights of visiting and staying contact. 6. On 25 September 1996 the applicant’s wife brought divorce proceedings against him before the same tribunal de grande instance. She alleged that her husband had repeatedly subjected her to acts of violence and that he had chronic alcoholism. 7. In a judgment of 4 September 1998, the tribunal de grande instance granted the divorce on grounds of fault by the applicant alone, confirmed the interim arrangements indicated in the interlocutory decision, acknowledged the father’s poor financial situation and exempted him from child maintenance obligations. It ruled as follows: “The wife has produced duly substantiated medical certificates attesting to the reality of the acts of violence to which she has been subjected and of which the only plausible origin lies in her husband’s behaviour towards her. Her husband, as she has also shown, suffers from alcoholism, and this may reasonably be said to constitute the primary cause of his behaviour. These acts imputable to the husband constitute serious and repeated breaches of his marital duties and obligations and have led to an irretrievable breakdown in the marriage. It is appropriate to grant the petition and pronounce the divorce on grounds of fault by the husband alone. ...” 8. The applicant appealed against the judgment before the appropriate Court of Appeal, requesting that the divorce be granted on grounds of fault by both spouses and seeking a more extensive right of contact with his children. As to the grounds of divorce, he alleged that he had been subjected to aggressive behaviour and harassment by his wife and disputed her claim that he was an alcoholic. In this connection, he principally requested the exclusion from the case file of a document from his medical records that his wife had, according to him, obtained by fraudulent means and on which she had relied to show that he was an alcoholic. The document in question was an operation report of 2 April 1994 concerning a splenectomy which the applicant had undergone. It had been sent on 20 April 1994 in a letter from Doctor C. (a specialist in digestive surgery) to the applicant’s general practitioner. The applicant claimed, however, that he had never provided his wife with a copy of the document, nor had he released the doctor who signed it from his duty of medical confidentiality in that connection. As to the ancillary arrangements decided by the court below, he considered that the restrictions on his right of contact were unjustified, arguing that the welfare report and the additional documents he had produced proved his attachment to his children and the guarantees he was able to give in order to receive them. The applicant’s ex-wife, for her part, reiterated the complaints she had made before the court below. She also denied that she had obtained a medical document fraudulently, alleging that her husband had entrusted her with “the management of paperwork”, rejected any accusation of violence, and considered that the applicant’s demands, in respect of his right of contact, were premature as he was living with his parents and had not yet overcome his drink problem. 9. In a judgment of 21 February 2000, the Court of Appeal upheld the provisions of the judgment appealed against as regards the granting of the divorce, the exercise of parental responsibility and the children’s habitual residence, giving the following reasoning: “– The granting of the divorce: ... Whilst certain testimony she has produced, concerning manifest drunkenness and resulting violent behaviour on the part of her husband at family gatherings, is very dated and not useful for the proceedings, she has nevertheless submitted to the Court testimony from two of his sisters concerning Mr [L.L.]’s alcohol addiction and his resulting aggressiveness. Mr [L.L.]’s alcoholism has been confirmed by medical documents and in particular a letter of 20 April 1994 to his general practitioner from Doctor C. – and there is no evidence to suggest that it was obtained fraudulently by his wife – referring to ‘a bout of acute pancreatitis with a background of alcoholism’ and indicating that the consequences of the pancreatitis could only be brought under control if the subject gave up alcohol. Mrs [L.L.] also produced medical certificates dated 26 July 1994, 2 September 1994, 15 September 1994 and 2 February 1996 in which various injuries were recorded – in particular a perforated eardrum – and from which violent acts by the husband must necessarily be inferred, as no other explanations have been suggested by Mr [L.L.]. This conduct ... constitutes a serious and repeated breach of marital duties, leading to an irretrievable breakdown in the marriage, and the judgment appealed against must accordingly be upheld in so far as it granted the divorce petition filed by the wife. ...” 10. As regards the applicant’s request for the extension of his rights of visiting and staying contact, the court considered it necessary to order, as an interlocutory measure, a medical and psychological report on the family group. After the expert’s report had been filed, on an undetermined date, the Court of Appeal, on 7 June 2001, granted the applicant’s request and accorded him a right of contact with which he was satisfied. 11. On 14 June 2000 the applicant wrote a letter to the President of the Court of Cassation in which he expressed his intention to appeal on points of law against the judgment of 21 February 2000, considering that the “legislation [had] not been correctly applied”. As regards the medical documents produced in the case, he criticised the courts that had ruled on his case for using those documents in spite of his protests, and added that such a practice was in breach of the Criminal Code since “judges [could not] require hospital records to be produced without risking the disclosure of facts protected by professional confidentiality”. 12. For the purposes of his appeal on points of law, the applicant filed a request for legal aid with the Court of Cassation’s Legal Aid Board. His request was rejected by the Board on 10 May 2001, then by the President of the Court of Cassation on 11 July 2001, on the ground that “it [did] not appear from an examination of the material in the case file that a ground of appeal on points of law [could] be argued with any real prospect of success”. 13. In the meantime, following a report of ill-treatment filed by the applicant with the Department for Prevention and Social Services, the children’s judge at the tribunal de grande instance, on 25 October 2000, initiated the procedure providing, in respect of the couple’s children, for a measure of guidance in the home community. That measure was extended on 4 December 2001 for a further one-year period. 14. At the material time the relevant provisions of the Civil Code read as follows: “Everyone has the right to respect for his private life. ...” “The proceedings on the cause of action, the consequences of the divorce and on the interim arrangements shall not be public.” “Facts relied on as grounds for divorce or as a defence to a divorce petition may be established by any type of evidence, including confessions.” “A spouse may not produce in the proceedings any letters exchanged between his or her spouse and a third party that he or she may have obtained by duress or fraud.” “Reports drawn up at the request of a spouse shall be declared inadmissible as evidence in the event of trespass on domestic premises or unlawful interference with private life.” 15. Articles 259 and 259-1 of the Civil Code were amended by Law no. 2004-439 of 26 May 2004, which came into force on 1 January 2005. Those Articles now read as follows: “Facts relied on as grounds for divorce or as a defence to a divorce petition may be established by any type of evidence, including confessions. However, evidence from descendants may never be heard in respect of the complaints submitted by the spouses.” “A spouse may not produce in the proceedings any evidence that he or she may have obtained by duress or fraud.” 16. In divorce proceedings, evidence of the complaints submitted is unrestricted and may be adduced by any means, unless it is shown that it has been obtained by duress or fraud (Article 259-1 of the Civil Code) or that reports drawn up at the request of a spouse have given rise to unlawful interference with private life or trespass on domestic premises (Article 2592 of the Civil Code). In this connection, where, for the purposes of adducing preliminary evidence of a spouse’s breach of his or her duty of fidelity, a report establishing adultery has been drawn up by a bailiff, with judicial authorisation, at the domicile of the other party to the adulterous relationship, such an act constitutes lawful interference with private life (Court of Cassation, Second Civil Division, 5 June 1985, Bulletin civil (Bull. civ.) no. 111). Similarly, a report drawn up without judicial authorisation, at the request of the husband, on premises of which he has possession, may be taken into consideration by the tribunals of fact (Court of Cassation, Second Civil Division, 14 December 1983). However, having regard to Article 9 of the Civil Code, the Court of Cassation has held that where a person has been spied on, watched and followed for several months, interference with that person’s private life, by a private detective acting on instructions to identify aspects of his or her way of life that might support a request for the discontinuance of a compensatory financial provision paid by the person’s former spouse, is disproportionate to the aim pursued (Court of Cassation, Second Civil Division, 3 June 2004, Bull. civ. no. 273). Conversely, having regard to Article 259-1 of the Civil Code, a court of appeal which held, on the basis of the evidence which it alone was empowered to assess, that a relationship detrimental to a husband carried on between his wife and a third party could be established by e-mails and by a private investigation report, rightly inferred therefrom, absent any evidence of duress or fraud, that serious and repeated breaches of marital duties were thus substantiated (Court of Cassation, First Civil Division, 18 May 2005, Bull. civ. I no. 213). In the same vein, a private investigation report is admissible when corroborated by other evidence such as comments written in a diary (Court of Cassation, Second Civil Division, 3 March 1983, unreported) or witness statements. As regards letters exchanged between one of the spouses and a third party within the meaning of the former Article 259-1 of the Civil Code, a court, in order to declare inadmissible letters from a wife to third parties, together with her diary, is not entitled to find that their production breached her privacy unless the husband obtained those documents by fraud or duress (Court of Cassation, Second Civil Division, 29 January 1997, Juris-classeur périodique 1997, Bull. civ. II no. 28). It has been held, however, that a diary should be declared inadmissible on the basis of Article 8 of the Convention (Caen tribunal de grande instance, judgment of 9 June 2000). 17. The relevant provisions of the new Code of Civil Procedure read as follows: “Registrars and custodians of public registers shall be required to issue a copy or an extract therefrom to any applicant, subject to the exercise of their rights.” “In the event of refusal or where no response is obtained, the president of the tribunal de grande instance, or, where the refusal emanates from a registrar, the president of the court to which his office is attached, seised by way of application, shall adjudicate, after hearing representations from the applicant and the registrar or custodian, or after giving them notice to appear. Appeals shall be lodged, examined and determined as in non-contentious matters.”
| 1
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train
|
001-79053
|
ENG
|
TUR
|
CHAMBER
| 2,007
|
CASE OF SOLMAZ v. TURKEY
| 2
|
Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
| null |
4. The applicant was born in 1966 and lives in Ankara. 5. On 23 January 1994 the applicant was arrested and placed in police custody by officers from the Anti-Terrorist Branch of the Istanbul Security Headquarters, on suspicion of being involved in the activities of an illegal armed organisation, namely the TKP/ML (Türkiye Komünist Partisi/Marksist Leninist, Turkish Communist Party / Marxist Leninist). 6. On 7 February 1994 he was brought before the public prosecutor and then the investigating judge at the Istanbul State Security Court. The same day, the investigating judge remanded the applicant in custody. 7. On 31 March 1994 the public prosecutor filed an indictment charging the applicant and four others with membership of an illegal armed organisation and involvement in activities which undermined the constitutional order of the State. 8. At the time of the events, a similar case concerning certain activities of the TKP/ML was pending before the third chamber of the Istanbul State Security Court. Following a jurisdictional conflict between two chambers of the court, on 14 March 1995 the Court of Cassation decided to join the applicant's case to the one pending before the third chamber. Consequently, the number of accused was increased to sixteen people. 9. The applicant did not attend a number of hearings. 10. In the course of the proceedings, the court held forty-eight hearings. At the end of each hearing the State Security Court rejected the applicant's requests for release pending trial, having regard to the nature of the offence, the state of the evidence and the content of the case file. 11. On 12 June 2000 the Istanbul State Security Court convicted the applicant as charged and sentenced him to life imprisonment. 12. On 15 May 2001 the Court of Cassation quashed the decision for procedural reasons. The case was remitted to the Istanbul State Security Court for further examination and the applicant remained in detention. The case was resumed with 15 accused, including the applicant. 13. On 8 February 2002 the applicant's lawyer requested the court to release the applicant pending trial due to his poor health. He submitted a medical report certifying that Mr Solmaz was suffering from Wernicke-Korsakoff syndrome (a brain disorder caused by thiamine deficiency, usually associated with alcoholism). The court dismissed the lawyer's request, maintaining that the applicant could be treated in prison. Moreover, it held that, considering the nature of the offence, the state of the evidence and the content of the file, the applicant should continue to be detained pending trial. 14. Following an objection by the applicant's lawyer, the court reconsidered its decision of 8 February 2002. On 18 February 2002, relying on a medical report and considering the length of the period which the applicant had already spent in detention, the court ordered his release pending trial. It further held that it was likely that the final decision of the court would be in favour of the applicant. 15. State Security Courts were abolished by constitutional amendments introduced on 7 May 2004. Subsequently, the applicant's case was resumed before the Istanbul Assize Court. 16. After holding seventeen hearings, on 31 January 2005 the Istanbul Assize Court convicted the applicant and sentenced him to life imprisonment in accordance with Article 146 of the Criminal Code. 17. However, on an unknown date the Court of Cassation quashed the decision of the first-instance court once again. The case was resumed before the Istanbul Assize Court, where it is still pending. 18. Article 63 of the Criminal Code (Law no. 5237) provides: “ Any term served due to circumstances which occurred before the judgment became final and which resulted in the restriction of personal liberty shall be deducted from the sentence. (...)”
| 1
|
train
|
001-4769
|
ENG
|
GBR
|
ADMISSIBILITY
| 1,999
|
TOOMEY v. THE UNITED KINGOM
| 4
|
Inadmissible
|
Nicolas Bratza
|
The applicant is a British citizen, born in 1958 and he is currently in prison in Derbyshire. A. The facts of the case, as submitted by the parties, may be summarised as follows. On 1 December 1983 the applicant pleaded guilty to assault occasioning actual bodily harm and to wounding with intent. Both charges related to unprovoked and serious assaults on two different women, the latter victim having been beaten and stabbed in the neck three times by the applicant. The applicant received a life sentence on the latter charge and no separate sentence on the former. The trial judge had before him a medical report on the applicant which showed an abnormal encephalogram with symptoms of disturbed behaviour associated with abnormal electrical activity in the temporal lobe of the brain. A psychiatric report dated 21 November 1993 considered that anticonvulsive drugs were required for this condition, that antidepressants were required for his recurrent depression and that he needed observation in secure surroundings where he could have further tests, surveillance and study. The trial judge made it clear that the imposition of the life sentence was to ensure that the applicant would not be a liberty until those responsible for his supervision were satisfied that the risk he posed to the public, and particularly to young women, was gone. The Court of Appeal rejected his appeal against sentence by judgment dated 7 June 1984. That court described the attacks as “horrifying” and noted that, while the applicant had initially denied the attacks, he had then stated that he had committed them in revenge for a sexual assault on him by a man when he was 18 years old. The applicant was subsequently diagnosed as suffering from a psychopathic disorder within the meaning of the Mental Health Act 1983 and in July 1985 he was transferred under section 47 of the 1983 Act to a psychiatric hospital. In April 1989 the applicant was transferred back to the prison system because he was not deemed suitable for treatment. Following a Parole Board review, he was transferred in January 1992 to HM Channing Wood prison which was a progressive move to less secure Category C conditions. The applicant completed his non-vocational industrial skills qualifications there. Following another Parole Board review, he was transferred in March 1994 to open conditions in HM Leyhill prison where he completed a “supervised resettlement and lifer skills” course. On 7 September 1995 a discretionary life panel (“DLP”) of the Parole Board reviewed the applicant's case. A number of very positive reports were before the DLP, all referring to his past sexual identity problems and all (but one) recommending without reservation his release on licence. The report of the Governor of HM Leyhill prison noted that the applicant accepted full responsibility for his behaviour and sincerely regretted what he had done and concluded that the risk posed by the applicant on release would be minimal. The principal officer in the “lifer unit” at HM Leyhill prison indicated that the applicant had been working in the community and had had two home leaves all of which had gone well. His behavioural record was excellent and his performance was first class. The psychologist's report dated 20 March 1995 considered the applicant's attitude to his offences to be appropriate. It detailed, under the heading “Insight into offence related behaviour”, the applicant's sexual identity problems which included a prior and long period of transsexualism and a homosexual relationship in prison. However, it was noted that the applicant had worked through these matters and had now come to terms with his male heterosexual identity. The psychiatric report dated 27 March 1995 considered that the applicant had been angry because of his frightening childhood, his being sexually assaulted when he was young, his serious speech impediment, he felt trapped at the time of the offences in an unhappy common-law marriage and as a result of his transsexual feelings. It was felt that a combination of this anger and his inability to communicate was the explosive combination that led to the offences. That report detailed the reasons for his sexual identity issues and, noting that these issues had been resolved by the applicant and that he had a stable relationship for a number of years with a woman, the psychiatrist could not see how he could be a danger on release. Two probation officer reports were equally supportive of the applicant's release. A third probation report did provisionally express some reservations about the depth of the applicant's understanding of his offences referring, inter alia, to his sexual identity problems and noting that such problems were considered in many previous reports to have been one of the main factors in the applicant's offences. The DLP directed the applicant's release on licence, one of the conditions being that he reside at a probation hostel. The applicant was conditionally released on 18 September 1995. On 22 November 1995 the probation service submitted a report outlining certain concerns about the applicant's behaviour. It was noted that the applicant had been observed by hostel staff taking an undue interest in a woman residing opposite the hostel. The probation service had also found a bread knife, a pair of binoculars, a pair of handcuffs, women's clothing, women's clothing catalogues and a fetishist catalogue in the applicant's room. Concern was also expressed about the applicant's relationship with prostitutes. Given his offences and his history of mental instability, the probation service no longer felt in a position to be able to supervise him safely in the community and recommended his immediate recall. On 23 November 1995 the applicant's licence was revoked by the Secretary of State under Section 39(2) of the Criminal Justice Act 1991 and he was taken to prison. The DLP confirmed his recall on 1 December 1995. On the applicant's initiative, his case was re-examined by the DLP on 27 March 1996, the DLP hearing the applicant and his counsel together with evidence from a psychologist and psychiatrist. The DLP found no convincing explanation from the applicant for most of the matters noted in the probation service report. At the request of the applicant's counsel, the panel recommended that certain investigations be carried out. These included a full neurological and a full neuro-psychological assessment, EEG and CAT scans, an investigation of the applicant's sexual identity and possible fetishism and, thereafter if appropriate, investigation of a possible sexual motive for the offences for which he had been convicted in 1983. The panel also recommended assessment for the Sex Offenders Treatment Programme (“SOTP”) and consideration of the applicant's transfer for treatment if a sexual motive for his offences was established. These recommendations were accepted by the Secretary of State. Prior to his transfer to HM Albany prison, the applicant requested clarification from the prison authorities of whether he was being transferred to HM Albany prison to take part in the SOTP or to be assessed for such a course. The reply stated that “you are going to do a SOTP course”. On 24 July 1997 the applicant was moved to HMP Albany prison. On 8 and 15 September 1997 the applicant requested copies of the results of various tests he had already undergone and information on further tests to be done. He was informed, inter alia, that he was on the waiting list for the Penile Polygraph (PPG) assessment. Further to another query the applicant was furnished, on 1 October 1997, with certain results of previous tests and with the question and answer leaflet on the PPG test (detailed above at “Relevant domestic law and practice”). On 29 September 1997 the applicant met with a senior psychologist who explained to him the proposed PPG procedure and the nature of the material which it was planned to use. The purpose of doing so was to ensure that the applicant agreed to the PPG assessment and was prepared for it in order to avoid extreme reactions during the test which would limit its usefulness. The applicant was reticent but agreed to participate in the test. On 3 October 1997 the applicant underwent his first PPG test and it lasted 1 hour and 20 minutes. A female trained technician conducted the tests. The applicant was put in a small room without windows and with bolts both inside and outside the door. Two electrodes were attached to his left index and middle finger. A video recorder was adjusted to the level of his face and the operator left the room although monitoring of the applicant was possible via a camera and a microphone. The applicant then had to attach a sensor clip to his penis and to leave his underpants and trousers removed throughout the test. The applicant was shown three categories of material. The first category (designed to discover any age preferences) was a set of slides comprising nude images of young children, pubescent and adult males and females. The images were produced in the United States for the purpose of the PPG assessment and all images were single frontal nudes, either sitting, standing or prone but not posed in a deliberately erotic fashion. The second category was a set of video sequences depicting consensual sex, rape and non-sexual violence. The sequences were also produced for the PPG assessment. The third category was a set of slides depicting young men and women in more erotic poses than in the first set of slides, elderly naked women in relatively non-erotic poses and women in bondage poses. The latter images were all obtained from soft-core pornographic magazines such as could be openly and legally published in specialist shops. The slides were left on for about 20 seconds and each was shown approximately six times. Each video lasted about a minute. The videos and slides were shuffled, being shown in no particular order. The television on which the slides and videos were shown was at eye level about 18 inches from his face and the applicant's head was kept steady by a headrest on the back of the chair. The test then continued with a 'key score' pad, the applicant being requested to score from 0-9 his sexual attraction to the same slides which he was again shown, each slide being shown six times. His second PPG test was conducted on 6 October 1997. It lasted 40 minutes, was similar to the first but the applicant was shown slides only. The slides were each shown six times and in no particular order. The document headed “PPG results” for 3 October 1997 noted that the applicant had consented to the test because he wanted a transfer from Albany Prison. As regards the slides, it was recorded that the greatest response of the applicant was to male children and that his responses to adults was low. As to the videos, it was noted that his response to aggression was higher than would be expected. It was also noted that the applicant was not happy with the violent scenes as it brought back bad memories of the offences. The general remarks recorded in his test results after 6 October 1997 was that his preferences were “non-deviant” given that his greatest responses was to adult females. In a report dated 19 November 1997 a forensic psychologist from Albany prison assessed the applicant based on the PPG test results and other formal and informal assessment procedures. It was noted that the applicant did not have an “index” conviction including a sex offence, an index offence which included an unconvicted sex offence, a previous conviction for a sex offence nor any other indications that his sexual behaviour could, at any point, be deemed inappropriate. However, given the reasons for his recall, the report focussed upon behavioural trends present which may or may not imply a future sex offence. The test disclosed no strong indication that there were risk factors and indicated that he did not have a deviant PPG profile. In the circumstances, together with the absence of any indication of substance abuse or of any relevant previous convictions of note, the conclusion was that the applicant presented a low risk case of re-offending. As to the items found in his possession prior to recall, this report noted they provided no substantive evidence on which to base a risk of re-offending. It was noted that the initial PPG assessment demonstrated a mysogynistic profile rather than one which is directly indicative of his deriving sexual pleasure from inflicting aggressive action upon others. Given this initial assessment, the second PPG test had been tailored to focus on that mysogynistic profile and the second test had indicated that his profile was non-deviant. The report therefore concluded that the principle concern in the applicant's case was his resentment of females rather than a pro-active desire to harm them for sexual gratification. As to the applicant's convictions, the psychologist noted that although there was an opportunity for, there was no evidence of, sexual interference with the victims. It was considered not insignificant that the victims were both women but the offences should not be considered for that reason sexual assaults. That psychologist did not consider the applicant a candidate for the SOTP. However, given the applicant's deep seated resentment of females in his life, it was highly recommended that the applicant continue the Enhanced Thinking Skills Programme he had begun and pursue other relevant treatment programmes. B. Relevant domestic law and practice A document entitled “Your questions and answers about the PPG” produced by the prison authorities reads as follows: “What is the PPG? It is a test that helps us to understand the direction and extent of a man's sexual interest. What is the point of the test? It is important for us to know if you are aroused inappropriately, as it will help us to tailor the treatment to best help you. How does it work? You will be asked to put a clip around your penis. You will be able to feel it in place but it will not hurt. The clip can detect changes in the size of your penis. Who will carry out the test? The test will be carried out by a trained psychologist. Your privacy will be respected at all times, and when you are undergoing the test you will be sitting alone in a separate room. Do I have to do the test? It is an important part of the Sex Offender Programme. We feel that we cannot successfully treat people's offending if we do not have full information about the nature and extent of their sexual interest. What will I have to do? After you have fitted the PPG clip you will sit in front of a television and you will be shown some pictures of males and females of various ages. You will also be shown some movies. The pictures you will be shown are the same for everybody, and nothing is more explicit than the kinds of things you might ordinarily see on the TV or in the newspapers. Is it safe? Every care is taken to ensure your safety. The equipment is made to very high standards and is regularly tested. It would be impossible for it to give you a shock - even in the unlikely event of something breaking down the voltages used are very low and quite safe. The equipment is fully sterilised every time it is used and so no diseases can be passed on. Will I be given electric shocks. No. Electric shock treatment IS NOT USED. Are the results confidential? The PPG is an important part of the Sex Offender Programme and it is important that the Tutors have as much information about the people on the programme as is possible. The programme staff however will NOT gossip about your results to other staff or to inmates. What if the test shows an interest that does not exist? Men can have an abnormal sexual interest for a lot of reasons, and just because they have an unusual interest it does not necessarily mean that they will act on it. But if someone has offended in a particular way and his PPG results show a sexual interest in that direction we know that to help him avoid further offending we must help him to do something about the sexual interest. Can the PPG prove that I did (or didn't) commit an offence? NO. It is not possible to say that someone is guilty of an offence simply because they show sexual interest in that direction. The point of a PPG is to help plan the treatment of someone who is known to have committed an offence.”
| 0
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train
|
001-105449
|
ENG
|
SRB
|
ADMISSIBILITY
| 2,011
|
NASKOVIC v. SERBIA
| 4
|
Inadmissible
|
András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque
|
1. The applicant, Mr Igor Nasković, is a Serbian national who was born in 1982 and is currently serving his sentence in the Niš Penitentiary (kazneno-popravni zavod). He was represented before the Court by Mr M. Jovanović, a lawyer practising in Niš. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 8 April 2004 the District Court in Gnjilane, Kosovo, found the applicant guilty of murder and illegal possession of firearms, and sentenced him to 18 years’ and 3 months’ imprisonment. 4. On an unspecified date thereafter this judgment became final. 5. The applicant started serving his sentence in Kosovo, but on 9 December 2004 and upon his own request he was transferred to the Sremska Mitrovica Penitentiary, pursuant to the Agreement concluded between the Federal Republic of Yugoslavia and the United Nations Interim Administration Mission in Kosovo (hereinafter “the Agreement”; see paragraphs 44-50 below). 6. On 13 September 2007 the applicant was transferred once again, this time to the Niš Penitentiary. 7. On an unspecified date the applicant filed a request to be transferred back to a prison in Kosovo based on Article 2 § 2 of the Agreement (see paragraph 44 below). 8. On 4 August 2010 the Directorate for the Enforcement of Criminal Sanctions (hereinafter “the Directorate”), as a department within the Ministry of Justice (see Article 12 § 2 at paragraph 27 below), rejected this request, noting that it had been based on family-related and health reasons. The Directorate firstly observed that the applicant had only complained about the pain in his ankles, in which respect he had been duly provided with adequate medication. Secondly, the Niš Penitentiary had its own prison hospital and, if needed, the applicant could also be taken to other medical institutions outside of the penitentiary. Thirdly, the Niš Penitentiary was the closest prison to Kosovo, which was where the applicant’s family lived. Fourthly, the Niš Penitentiary was best placed to secure the applicant’s rehabilitation. Finally, the Agreement did not establish the applicant’s “right to be transferred” to a prison of his choice. On the contrary, any transfer depended on the consent of the parties to the Agreement. 9. On 5 February 2011 the applicant filed a fresh request to be transferred to Kosovo. Therein he explained that his entire family lived there and could not afford to visit him on a regular basis in Niš, nor for that matter, in view of the postal costs involved, even send him packages. The applicant further maintained that the quality of medical services provided in the Niš Penitentiary was not adequate. 10. On 29 March 2011 the Directorate rejected this transfer request. For the most part, it restated the reasons given on 4 August 2010, adding, inter alia, that the applicant had had regular contact with his family, albeit with some “technical” difficulties recently. Lastly, the Directorate noted that family reasons could not be decisive in the assessment of a transfer request, and recalled that the applicant had initially been transferred from Kosovo upon his own request. 11. On 4 April 2011, not having yet received the Directorate’s decision of 29 March 2011 and relying on Article 116 § 3 of the Enforcement of Criminal Sanctions Act 2005 and Article 208 § 2 of the General Administrative Proceedings Act (see paragraphs 27 and 29 below), the applicant filed an appeal with the Minister of Justice wherein, inter alia, he complained about the failure of the Directorate to consider his request of 5 February 2011. 12. Having been served with the Directorate’s decision of 29 March 2011, on 14 April 2011 the applicant filed an appeal with the Minister of Justice against it. Therein he stated that: (i) the Directorate was not competent to consider the transfer request; (ii) it should instead have properly been examined by another department within the Ministry of Justice; (iii) the Directorate had not complied with the procedures set forth in the Agreement; and (iv) the impugned reasoning was incoherent since the applicant’s family lived in Kosovo, some 120 kilometres from Niš, and had had to negotiate a certain administrative procedure whenever leaving its territory. 13. It would seem that on 18 April 2011 the applicant filed another submission with the Minister of Justice in support of his appeal of 14 April 2011. 14. On 20 April 2011, and in view of the Directorate’s ruling of 29 March 2011, the Minster of Justice rejected the applicant’s appeal of 4 April 2011, deeming it moot. The appeal of 14 April 2011 is apparently still pending. 15. On 20 September 2010 the applicant started a hunger strike, seeking his transfer to a prison in Kosovo. 16. As of 5 October 2010 the applicant also refused to take any water. 17. On 19 October 2010 the applicant discontinued the strike altogether. 18. On 17 January 2011 the applicant again started a hunger strike, seeking his transfer to Kosovo. 19. On 17 March 2011, following respiratory, kidney and orientation problems, as well as weight loss (more than fourteen kilograms in all), the applicant discontinued the hunger strike. 20. However, on 12 April 2011, having received the Directorate’s decision of 29 March 2011, the applicant decided to resume the strike, which included his refusal to take either food or water. 21. The applicant thereafter apparently lost consciousness on several occasions, received an infusion and experienced kidney pains. 22. On 20 April 2011 the applicant informed his lawyer that, fearing even more serious consequences, he had started taking water and would discontinue his hunger strike shortly. 23. On 5 May 2011 the applicant’s lawyer informed the court that his client had indeed discontinued the strike altogether. 24. The applicant maintained that throughout the strikes referred to above, he had been examined by the prison doctor on a daily basis, but that when he had needed urgent medical assistance no such assistance had been provided. 25. The applicant seems to have also been subjected to blood tests periodically, as well as to blood pressure and weight monitoring. The applicant was repeatedly warned by the prison medical staff that the strike was seriously endangering his health. 26. Lastly, the applicant stated that it was never his intention to commit suicide, but merely to be transferred to a prison in Kosovo. 27. The relevant provisions of this Act read as follows: “This Act governs, unless specifically provided otherwise by law, the procedure of enforcement of criminal sanctions ...” “... [Convicted persons] are entitled to the protection of fundamental rights guaranteed by the Constitution, ratified international agreements, generally accepted rules of international law, and this Act.” “ ... [Convicted persons are entitled to] ... judicial review of individual ... [decisions] ... related to their rights and duties, in accordance with the provisions of this Act. “The Directorate for the Enforcement of Criminal Sanctions ... [hereinafter ‘the Directorate’] ... shall organise, implement and supervise the enforcement of imprisonment ... The ... [Directorate] ... is an administrative authority within the Ministry of Justice of the Republic of Serbia.” “Convicted persons are entitled to receive visits from ... [their family members and others in accordance with the conditions set forth by this Act] ...” “Convicted persons shall have the right to receive packages ...” “Convicted persons are entitled to medical care according to the general rules on health care, as well as the provisions of this Act. Convicted persons who cannot receive adequate medical treatment ... [in prison] ... shall be transferred to the Special Prison Hospital or another health [care] institution ...” “Medical treatment of a convicted person may only be effected with his consent. Forced feeding of a convicted person shall not be allowed. Exceptionally, if a convicted person seriously impairs his health or his life, by refusing medical treatment or food, ... measures shall be applied as determined by a doctor.” “The [prison] doctor ... shall be obliged to: ... (4) examine on a daily basis a convicted person who is ill or is refusing food or water ...” “A convicted person mаy, for the purpose of exercising his rights, file a request with ... [a person authorised by the prison to deal with the matter at issue] ... The [authorised] person referred to in paragraph 1 of this Article must, within five days as of receipt of the request, provide the convicted person with a written and reasoned response. A convicted person shall have the right to lodge a complaint with the prison governor concerning any breach or irregularity suffered by him whilst in prison. The prison governor, or another person authorised by him, shall consider the convicted person’s complaint, and shall decide upon it within 15 days. A convicted person who receives no such ... [decision] ... or is not satisfied with the decision rendered shall have the right to file an appeal with the Head of the Directorate within a period of eight days. The Head of the Directorate shall be obliged to rule on this appeal within a period of 30 days as of its receipt.” “Should a convicted person consider that his right has been breached by the prison governor personally, he may file a complaint with the Head of the Directorate. Should the Head of the Directorate, or another person authorised by him, ascertain that the complaint was not brought for reasons cited in paragraph 1 [of this Article], the complaint shall be forwarded to [another] competent body and the convicted person shall be informed thereof. The Head of the Directorate, or another person authorised by him, may investigate the merits of the complaint by means of looking into the relevant prison records, [and/or] by interviewing the prison governor[,] ... the prison staff ... [or] the convicted person concerned ... [, as well as] ... other convicted persons without the presence of prison staff. Should the complaint be deemed well-founded, the Head of the Directorate shall order that the breach of the convicted person’s right be rectified.” Should [the Head of the Directorate] consider that the breach of a convicted person’s right was caused by the actions of a member of the prison staff, ... [he] ... shall inform in writing the prison governor, as well as the authorised prison supervisor, and, should he consider that the breach was caused by the action of the prison governor personally, he shall [likewise] inform the authorised prison supervisor.” “A convicted person shall have the right to complain to the authorised prison supervisor, without the presence of prison staff. The content of the complaint shall be confidential.” “Upon request of a convicted person or the proposal of the prison governor, and where there are good reasons for so doing, the Head of the Directorate may transfer the convicted person from one institution to another. The Head of the Directorate may [also], for reasons of security, transfer a convicted person ex officio. A convicted person may file an appeal against the decision of the Head of the Directorate referred to in paragraphs 1 and 2 of this Article with the Minister of Justice, within three days as of ... [its receipt] ... An appeal against the decision of the Head of the Directorate shall not postpone its enforcement.” “A convicted person whose transfer request has been rejected may not re-submit the request before six months have elapsed following the adoption of the decision of the Head of the Directorate in response to his earlier request.” “A convicted person shall be entitled to judicial recourse against the final decision ... limiting or violating one of his rights set forth under this Act. Judicial recourse referred to in paragraph 1 of this Article shall be secured through an administrative dispute.” “An action seeking judicial redress shall be filed within three days as of receipt of the decision in question. The court of competent jurisdiction shall rule on the action referred to in paragraph 1 of this Article within 30 days as of its receipt.” “The enforcement of detention [in an ongoing criminal case] is subject to supervision by the president of the District Court that has jurisdiction for the territory where the main premises of the detention facility are located.” 28. Article 208 § 1 provides, inter alia, that in simple matters an administrative body shall be obliged to issue a decision within one month as of when the claimant lodged his or her request. In all other cases, the administrative body shall render a decision within two months thereof. 29. Article 208 § 2 enables the claimant whose request has not been decided within the periods established in the previous paragraph to lodge an appeal as if his or her request has been denied. Where an appeal is not allowed, the claimant shall have the right to directly initiate an administrative dispute. 30. Articles 4 and 6 provide, inter alia, that an “administrative act” is an act/decision adopted by a State body in the determination of one’s rights and obligations concerning “an administrative matter”. 31. Article 8 § 1 provides that administrative disputes shall be adjudicated by the Administrative Court. 32. Articles 14 and 15 provide, inter alia, that an administrative dispute may be instituted against an administrative act/decision rendered at second instance, as well as against one issued at first instance should no appeal lie against it. Moreover, an administrative dispute may also be instituted, under conditions set forth by this Act, in situations where a competent State body has failed to decide on a party’s request or has failed to rule on appeal at second instance. 33. Article 19 § 1 provides, inter alia, that should an appellate body fail to issue a decision upon a claimant’s appeal within sixty days the claimant may repeat the request, and if the appellate body declines to rule within an additional period of seven days the claimant may institute an administrative dispute. 34. Article 19 § 2 provides, inter alia, that should a first instance administrative body fail to issue a decision upon the claimant’s request within a period provided in the General Administrative Proceedings Act (see paragraph 28 above), in matters where an appeal has been excluded, the claimant may repeat the request and if the first instance body declines to rule within an additional period of seven days the claimant may institute an administrative dispute before a court of law. 35. Article 41 provides, inter alia, that the court shall consider the lawfulness (zakonitost) of the impugned administrative decision, as well as any reasons for its possible nullity (ništavost). 36. Article 42 § 1 provides, inter alia, that should the court rule in favour of the claimant, the impugned administrative decision shall be quashed fully or partially, and the matter shall be remitted to the competent administrative authority for re-examination. 37. Articles 43 provides, inter alia, that should the court rule in favour of the claimant, it shall also, where the established facts of the case and its nature so warrant, have the power to decide on the merits of the claimant’s original request (spor pune jurisdikcije). 38. Article 43 § 2 provides that the court may not rule on the merits in cases where an administrative decision has been adopted by the competent body in the exercise of its discretion. 39. Article 43 § 5 provides, inter alia, that in cases where repeated administrative proceedings, following the quashing of an impugned decision adopted earlier, would cause the claimant serious harm, the court shall be obliged to rule on the merits of the claimant’s original request, providing that the relevant facts have been established before the court itself. 40. Article 44 provides that where an administrative dispute has been brought under Article 19 the court shall, should it rule in favour of the claimant, order the administrative body in question to decide upon the claimant’s original request. However, should the established facts of the case and its nature make it possible, the court shall also have the power to decide on the merits thereof. 41. The Supreme Court has frequently considered, on their substance, requests filed by convicted persons, involving various issues regulated by the Enforcement of Criminal Sanctions Act 2005 (see, for example, judgments U. nos. 1658/06, 1717/06, 1334/06, 1165/06 and 1884/06). 42. Article 170 provides that a “constitutional appeal may be lodged against individual decisions or actions of State bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been exhausted or have not been prescribed.” 43. The relevant provisions of this Act read as follows: “The decisions of the Constitutional Court shall be final, enforceable and binding.” “A constitutional appeal may be lodged against an individual decision or an action of a State body or an organisation exercising delegated public powers which violates or denies human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies have already been exhausted or have not been prescribed or where the right to their judicial protection has been excluded by law. A constitutional appeal may be lodged even if all available remedies have not been exhausted in the event of a breach of an applicant’s right to a trial within a reasonable time.” “A constitutional appeal may be lodged by any individual who believes that any of his or her human or minority rights or freedoms guaranteed by the Constitution have been violated or denied by an individual decision or an action of a State body or an organisation exercising delegated public powers.” “A constitutional appeal may be lodged within thirty days of receipt of the individual decision or the date of commission of the actions ... [in question] ...” “When the Constitutional Court finds that an ... individual decision or action has violated or denied a human or minority right or a freedom guaranteed by the Constitution, it shall annul the ... decision in question or ban the continuation of such action or order the implementation of other specific measures as well as the removal of all adverse consequences within a specified period of time. The decision of the Constitutional Court accepting a constitutional appeal shall constitute a legal basis for requesting compensation or the removal of other adverse consequences before a competent body, in accordance with the law.” “... [An applicant who has obtained a Constitutional Court decision in his or her favour] .., may lodge a compensation claim with the Commission for Compensation in order to reach an agreement in respect of the amount ... [of compensation to be awarded] ... If the Commission for Compensation does not rule favourably in respect of a compensation claim or fails to issue a decision within thirty days from the date of its submission, the applicant may file a civil claim for damages before the competent court. If only partial agreement has been achieved, a civil claim may be filed in respect of the remainder of the amount sought. The composition and operation of the Commission for Compensation shall be regulated by the Minister of Justice.” 44. Article 2 § 2 provides, inter alia, that a convicted person may be transferred from a prison supervised by one party to the Agreement to a prison supervised by the other party. The convicted person at issue shall be entitled to express his interest to be transferred in accordance with the Agreement. 45. Article 2 § 3 provides that the transfer may formally be requested by one of the parties to the Agreement. 46. Under Article 3 § 2, a convicted person may be transferred to Kosovo if, inter alia, the following conditions are met: (i) the criminal offence is punishable by the criminal law of both parties; (ii) the sentencing judgment is final; (iii) the convicted person still has at least six months of the sentence to serve; and (iv) the convicted person, as well as the parties to the Agreement, have all consented to the transfer in question. It is lastly stated that when it comes to transfers of convicted persons to Kosovo, special priority shall be granted to those who were born in Kosovo, as well as those whose family members live there. 47. Article 4 § 1 provides that all convicted persons in respect of whom the Agreement may be applicable shall be informed thereof. 48. Article 4 § 5 provides that a convicted person shall be informed, in writing, about any and all decisions adopted by the parties to the Agreement in respect of the transfer. 49. Article 13 provides that the Agreement shall be applicable to criminal sanctions imposed before as well as after its entry into force. 50. Article 15 § 2 provides that the Agreement shall enter into force on the date of its signature by the parties. 51. Rule 17.1 provides that “[p]risoners shall be allocated, as far as possible, to prisons close to their homes or places of social rehabilitation”. 52. Rule 17.3 provides that “[as] far as possible, prisoners shall be consulted about their initial allocation and any subsequent transfer from one prison to another”.
| 0
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train
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001-139345
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ENG
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AZE
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ADMISSIBILITY
| 2,013
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AHMADOV v. AZERBAIJAN
| 4
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Inadmissible
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Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
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1. The applicant, Mr Abbas Hasan oglu Ahmadov (Abbas Həsən oğlu Əhmədov), is an Azerbaijani national, who was born in 1957 and lives in Baku. 2. He was represented before the Court by Mrs A. Tagiyeva, a lawyer practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 7 March 2005 police officers took the applicant and his brother from the applicant’s home to the Surakhani District Police Station in connection with the investigation of the murder of an acquaintance of the applicant with whom he had had a brief business relationship in Moscow one year before. After their arrival at the police station, the applicant and his brother were arrested for hooliganism and, on 8 March 2005, the Surakhani District Court sentenced them to seven days’ administrative detention. 5. According to the applicant, he was heavily beaten and ill-treated in police custody with the aim of extracting a confession from him. He did not however give any self-incriminating or confession statement. 6. On 10 March 2005 the applicant was heard by the investigator as a witness in connection with the murder case. He was questioned in particular about his relationship with the victim. According to the record of questioning, the applicant stated that he had fallen in the street on 7 March 2005 before his arrest by the police. 7. According to the medical record drawn up on 29 March 2005, on 10 March 2005 an X-ray examination of the applicant’s ribcage was carried out. The reason of this examination was not specified in the record. It was noted in the record that the applicant had not been examined or registered by a doctor. The medical record which is composed of two sentences reads as follows: “On 10 March 2005 an X-ray examination of the ribcage was carried out. He was not examined or registered by a doctor.” The record did not mention the results of the X-ray examination. 8. At the end of the seven days’ administrative detention the applicant’s brother was released, but the applicant remained detained on suspicion of involvement in the murder. 9. On 13 March 2005 the applicant was questioned by the investigator as a suspect. It was suspected that the applicant and a friend of his (A.M.) had contracted two other suspects (V.O. and Q.H.) to murder the victim in exchange for a certain sum of money. According to the record of the questioning of 13 March 2005, the applicant denied his involvement in the murder, stating that he had never ordered the murder of the victim. He also stated that there had been no conflict between him and the victim; however A.M. had had a conflict with the victim. The applicant did not raise any complaint concerning his alleged ill-treatment by the police. 10. On 13 March 2005 V.O. and Q.H. were also questioned by the investigator. In their submissions, V.O. and Q.H. admitted that they had murdered the victim, who was a taxi driver. On the day of the murder, they had taken the victim’s taxi as clients and, once outside the city, had asked the victim to stop the car and stabbed him with a knife. V.O. and Q.H. stated that the applicant and A.M. had contracted them to kill the victim in exchange for money. A.M. was questioned on the same day by the investigator and he described the applicant as the person behind the murder. 11. On 15 March 2005 the applicant maintained his initial position that he had never ordered the victim’s murder. Also on 15 March 2005, V.O. and Q.H. were again questioned by the investigator. In their submissions, they reiterated their previous statements, stating that the applicant had pointed out the victim’s taxi to them and that the applicant and A.M. were behind the murder. On the same date, A.M. again made an incriminating statement against the applicant. 12. On the basis of the investigation the applicant was charged with having committed the offence of premeditated murder. 13. Following his sons’ arrest the applicant’s father complained to the prosecution authorities that they had been ill-treated by the police. He claimed that his sons had been heavily beaten and ill-treated in police custody and that police officers had asked him for a bribe in the amount of 20,000 US dollars (USD) in order to release his sons from the police station. He said that he had not had enough money to pay the sum demanded and had managed to pay only USD 6,000. According to the applicant’s father, the applicant’s brother was released following the payment of the latter amount to police officers at the Surakhani District Police Station, but the applicant remained in detention as he could not pay the total amount of the bribe. 14. By a decision of 15 April 2005 the investigator at the Baku City Prosecutor’s Office instituted criminal proceedings under Article 309 of the Criminal Code (excess of authority) on the basis of the complaints by the applicant’s father. 15. On 15 August 2005 the investigator at the Baku City Prosecutor’s Office decided to terminate the criminal proceedings under Article 309 of the Criminal Code. The investigator found that the applicant’s father had failed to prove his allegations. As regards the complaint relating to the applicant’s ill-treatment in police custody, the investigator confirmed the existence of injuries to the applicant’s left ribcage and left ear. However, he stated that these injuries were due to a fall that the applicant had had in the street before his arrest. In this connection, the investigator noted that the applicant had stated when he was heard as a witness that he had fallen in the street. The investigator also relied on the submissions of the police officers, who denied ill-treating the applicant. The relevant part of the decision reads as follows: “It appears from the record drawn up on 7 March 2005 by the policeman on duty A. Aliyev at Police Station No. 30 of the Surakhani District Police Office that at his arrival at the police station Ahmadov Abbas Hasan oglu stated that he had had a fall in Nakhchivanski street where he lived and had hurt his left ribcage and left ear. In this connection, a record was drawn up in the presence of Ahmadov Intigam Hasan oglu [the applicant’s brother] and the officers at the police station and it was signed by I. Ahmadov and A. Ahmadov. A. Ahmadov who was questioned as a witness during the investigation of the criminal case carried out by the Surakhani District Prosecutor’s Office stated that he had had a fall. The head of Police Station No. 30 of the Surakhani District Police Office Mammadov Fuad Nariman oglu stated that ... after his arrival at the police station Abbas [the applicant] stated that he had been injured because of a fall and he was suffering and that a record was drawn up on 7 March 2005 at the police station and Abbas and Intigam signed it. Neither during their transportation to the police station, nor during their stay there, were Abbas and Intigam subjected to physical force and they did not sustain injuries... The deputy head of Police Station No. 30 of the Surakhani District Police Office Jamalov Natig Alihuseyn oglu confirmed the submissions of F. Mammadov. The agents of Police Station No. 30 of the Surakhani District Police Office Tagiyev Azer Abbaseli oglu, Mustafayev Kamandar Ahmad oglu, Seferov Shikar Cavab oglu and Mahmudov Elshan Bakhtiyar oglu submitted that they had gone on 7 March 2005 at 10 p.m. to Nakhchivanski street 93, in Baku city, where I. Ahmadov and A. Ahmadov resided, to invite them to come to the police station. I. Ahmadov and A. Ahmadov who came to the police station at their request committed acts of hooliganism in front of the police station and this fact was documented and the relevant record on the existence of the injuries on the person of A. Ahmadov when he was taken to the police station was drawn up. They did not use physical force against anyone... Therefore, it was not established during the investigation that A. Ahmadov and I. Ahmadov ... had been beaten in the police station...” 16. The applicant did not appeal against the above decision to terminate the criminal proceedings. 17. In the meantime, the charges of premeditated murder against the applicant had been brought before the Assize Court for examination. During these proceedings the applicant protested his innocence, submitting that he had been beaten by the police and that a criminal investigation against the police officers in this respect was pending before the prosecuting authorities. In the course of the trial V.O. and Q.H. likewise stated that they had been beaten and ill-treated in police custody, maintaining that their testimony in the pre-trial investigation had been extracted by this ill-treatment. On 15 July 2005 the Assize Court ordered an examination of V.O. and of Q.H. by a forensic expert. According to the forensic reports of 22 July 2005, there was no sign of ill-treatment on their person. 18. On 2 August 2005, i.e. prior to the termination of the criminal investigation concerning the applicant’s alleged ill-treatment (see paragraph 15 above), the Assize Court found the applicant, A.M., V.O. and Q.H. guilty of premeditated murder. The applicant was convicted under Articles 32.4, 120.2.1 and 120.2.5 of the Criminal Code (complicity in premeditated murder) and sentenced to fourteen years’ imprisonment. The relevant part of the judgment reads as follows: “The submissions of Abbas Ahmadov [the applicant] that A.M., V.O. and Q.H. were partial towards him in their statements which indicate that he had ordered the murder of the victim; that V.O. and Q.H. killed the victim at the request of A.M. because the latter had had a conflict with the victim and the submissions of A.M. that V.O. and Q.H. killed the victim at the request of Abbas [the applicant] in exchange for 300,000 Azerbaijani manats and deleting a rental debt of 50,000 Azerbaijani manats because there had been a conflict between the applicant and the victim in Moscow and the victim refused his consent to the marriage between his sister and the applicant’s brother were examined and the submissions of Abbas Ahmadov [the applicant] were not confirmed by any other evidence in the case file. ... The video recordings and other documents in the case file confirm that the statements of V.O., Q.H., Abbas Ahmadov [the applicant] and A.M. were freely taken by the investigator in the presence of their lawyers. The arguments put forward by Abbas Ahmadov and A.M. in support of their defence which were completely and objectively examined in detail during the court investigation should be dismissed as they are unjustified and rebutted. The statement and the documents written by V.O. in favour of Abbas Ahmadov [the applicant], as well as the statement given by V.O. in the courtroom, have been examined in the court investigation and they could not be accepted as evidence because they had been done under pressure as V.O.’s family lived in a house belonging to Abbas Ahmadov [the applicant].” The judgment was silent as to the applicant’s alleged ill-treatment. 19. The applicant appealed against the Assize Court’s judgment maintaining his innocence and reiterating that he had not been involved in the murder in question. 20. According to the record of the hearing held on 5 October 2005 before the Court of Appeal, V.O. stated that he had not intended to kill the victim but had just wanted to frighten him. He further stated that the applicant did not know anything about the murder and that A.M. was behind the murder. Q.H. also retracted his previous testimony against the applicant at the hearing. In his submissions before the court, A.M. denied his involvement in the murder, but admitted that he had pointed out the victim’s taxi to V.O. and Q.H. However, he described the applicant as the person behind the murder. 21. On 25 October 2005 the Court of Appeal upheld the Assize Court’s judgment. The relevant part of the judgment which is almost identical in its wording to the first-instance court’s judgment reads as follows: “The submissions of Abbas Ahmadov [the applicant] that A.M., V.O. and Q.H. were partial towards him in their statements which indicate that he had ordered the murder of the victim; that V.O. and Q.H. killed the victim at the request of A.M. because the latter had had a conflict with the victim and the submissions of A.M. that V.O. and Q.H. killed the victim at the request of Abbas [the applicant] in exchange for 300,000 Azerbaijani manats and deleting a rental debt of 50,000 Azerbaijani manats because there had been a conflict between the applicant and the victim in Moscow and the victim refused his consent to the marriage between his sister and the applicant’s brother were examined and the submissions of Abbas Ahmadov [the applicant] were not confirmed by any other evidence in the case file. ... The video recordings and other documents in the case file confirm that the statements of V.O., Q.H., Abbas Ahmadov [the applicant] and A.M. were freely taken by the investigator in the presence of their lawyers. The arguments put forward by Abbas Ahmadov and A.M. in support of their defence which were completely and objectively examined in detail during the court investigation should be dismissed as they are unjustified and rebutted. The statement and the documents written by V.O. in favour of Abbas Ahmadov [the applicant], as well as the statement given by V.O. in the courtroom, have been examined in the court investigation and they could not be accepted as evidence because they had been done under pressure as V.O.’s family lived in a house belonging to Abbas Ahmadov [the applicant].” 22. On 18 April 2006, i.e. approximately eight months after the proceedings concerning the alleged ill-treatment of the applicant had been terminated (see paragraph 15 above), the Supreme Court quashed the Court of Appeal’s judgment of 25 October 2005 and remitted the case for fresh examination. The relevant part of the judgment reads as follows: “After having heard the lawyer’s submissions in favour of the applicant’s cassation appeal and the applicant’s submission in favour of his own cassation appeal and against the other co-accused, as well as the prosecutor’s submissions against all the cassation appeals and having examined the arguments and the facts of the case, the panel of the court considers that the appeals should be partially granted, the judgment of the Court of Appeal should be quashed and the case should be sent for a new appellate examination. In accordance with Article 419.1 of the Code of Criminal Procedure of the Republic of Azerbaijan, the cassation court examines the cassation appeal and protest on the merits and verifies only the lawfulness of the applicability of the criminal law and provisions of this Code on legal issues. The panel of the court considers that although a number of violations of procedural law had been committed at the investigation stage of the proceedings, these violations had not been fully examined and duly assessed at the two court instances. In accordance with Article 125.2.2 of the Code of Criminal Procedure, information, documents and other items obtained through the use of violence, threats of violence, deceit, torture or other cruel, inhuman or degrading acts shall not be accepted as evidence in a criminal case. It appears from the case file that A. Ahmadov sustained moderate bodily injury because of the use of physical force against him at the investigation stage, and criminal proceedings were instituted in this connection by the Baku City Prosecutor’s Office. It follows that the statements were extracted from him by force during the investigation and that, as he was not willing to give the statements the investigator wanted, he was subjected to physical force. Moreover, the detainees V.O. and Q.H. also stated in their cassation appeals that their testimony had been extracted from them by force at the investigation stage. Section 6 of the decision of the Plenum of the Supreme Court on Activity of Courts in the Field of Protection of Human Rights and Liberties in the Administration of Justice of 10 March 2000 provides that unlawfully obtained evidence cannot be used in the administration of justice and for this reason, when examining cases, the courts guided by the provisions of the criminal procedural law, as well as the explanations of Section 3 of the decision of the Plenum of the Supreme Court on Judgment of Court of 27 December 1996, shall not in any case use unlawfully obtained evidence. As it transpires from the case file the detainees V.O. and Q.H. did not confess in their statements that they had been ordered to kill the victim and only V.O. stated that he had been ordered to frighten the victim for preventing him from going to Moscow. Although in his statements made at the investigation stage he submitted that he had received this order from the detainees A. Ahmadov [the applicant] and A.M., in his statement made during the examination of the case at the first-instance court and in his appeal to the appellate court, he noted that this order had been given solely by A.M. However, instead of dismissing these submissions by examining them with other evidence, both court instances refused to consider this evidence without any justification concluding that these statements had been transferred to him by the relatives of A. Ahmadov [the applicant]... Moreover the panel of the court considers that the motive for the crime was not completely and clearly established...” 23. The Court of Appeal re-examined the criminal case. At the hearings before the Court of Appeal the applicant denied his involvement in the murder of the victim. He maintained that he had been beaten by the police and that he had never said that he had fallen in the street. 24. In the course of the proceedings before the Court of Appeal, V.O. and Q.H. stated that the murder of the victim had not been ordered by the applicant and A.M., and that their statements to that effect given during the investigation had been extracted by force. However, they also stated that the applicant and A.M. had asked them to beat and frighten the victim in order to prevent him from going to Moscow. V.O. and Q.H. lastly stated that they had not intended to kill the victim and had only stabbed him in the leg, but that the victim had died as a result of the injuries to his leg. In his submission before the Court of Appeal, A.M. also stated that the applicant had only asked V.O. and Q.H. to beat and frighten the victim. 25. On 19 February 2007 the Court of Appeal delivered a new judgment on the merits. The relevant part of the judgment reads as follows: “The panel of the court concludes ... that the statements of V.O. and Q.H. given at the investigation stage, according to which Abbas [the applicant] and A.M. ordered them to kill the victim, were not true. In accordance with Article 125.2.2 of the Code of Criminal Procedure, information, documents and other items obtained through the use of violence, threats of violence, deceit, torture or other cruel, inhuman or degrading acts shall not be accepted as evidence in a criminal case. It appears from the case file that the detainees were subjected to violence, that they were beaten and sustained injuries, and that a criminal investigation was instituted in this connection. For this reason, the panel of the court decides under Article 125.2.2 of the Code of Criminal Procedure not to admit the statements given during the investigation by V.O. and Q.H. The panel of the court, based on the above-mentioned facts, considers that the detainees’ actions were not correctly classified by the first-instance court and that Abbas Ahmadov [the applicant] and A.M. did not intend to kill the victim and they did not give such an order. The detainees Q.H. and V.O. also did not intend to kill the victim and did not want such a consequence. They only intended to frighten the victim.” The Court of Appeal convicted the applicant on the basis of the testimony given before the court by the other accused and reclassified his conviction under Articles 32.4 and 126.3 of the Criminal Code (complicity in the premeditated infliction of physical damage by a group of persons and resulting in the victim’s death). The applicant was sentenced to nine years’ imprisonment. 26. On an unspecified date the applicant lodged a cassation appeal claiming his innocence. 27. On 29 May 2007 the Supreme Court upheld the Court of Appeal’s judgment of 19 February 2007 and dismissed the applicant’s cassation appeal. It appears from the Supreme Court’s decision of 29 May 2007 that the applicant complained before the cassation court about the assessment of the evidence by the lower court claiming his innocence. This part of the judgment reads as follows: “In the cassation appeal lodged by the advocate of the detainee A. Ahmadov [the applicant] it was requested that the appellate court’s judgment of 19 February 2007 be quashed and that the criminal proceedings be closed. The appeal was supported by the allegations that A. Ahmadov [the applicant] had been convicted on the basis of the incorrect statement of the other accused A.M., that the preliminary investigation in connection with this case had been biased, that A. Ahmadov’s [the applicant] involvement in the crime had not been proved in court by reliable evidence, that the court had not correctly assessed the evidence, had not taken into consideration the statement of V.O. and Q.H. according to which A. Ahmadov had not ordered them to kill the victim, had incorrectly concluded that A. Ahmadov had participated in the crime and that the judgment of the Court of Appeal was not based on reliable evidence”. As to the reasoning of the Supreme Court, the relevant part of the judgment reads as follows: “The appellate instance court examined the appeal by conducting a court investigation. It correctly determined the facts of the case, the degree of participation of the detainee A. Ahmadov [the applicant] in the commission of the crime and his role in this regard and correctly classified his acts by the criminal law by completely and objectively examining in detail the arguments of the appeal, by analysing and assessing, as required by the law, the collected evidence. In order to reach this conclusion, the appellate court in its decision, in support of its finding that A. Ahmadov had committed the crime, also referred to the statements of A.M., Q.H. and V.O., clarified the contradictions between these statements and correctly assessed them. Moreover, the appellate court also substantiated its findings on this case by testimonies of witnesses and other objective facts of the case.” 28. Article 46 (III) of the Constitution of the Republic of Azerbaijan reads as follows: “No one shall be subjected to torture or ill-treatment. No one shall be subjected to degrading treatment or punishment. ...” 29. Article 63 (IV) of the Constitution provides: “Unlawfully obtained evidence shall not be used in the administration of justice.” 30. Information, documents and other items, if there is no doubt as to their accuracy, their source and the circumstances in which they were obtained, may be accepted as evidence (Article 125.1). Article 125.2 of the CCrP provides that information, documents and other items cannot be accepted as evidence in a criminal case if they were obtained in the following circumstances: if the accuracy of the evidence is or may be affected by the fact that the parties to the criminal proceedings were deprived of their rights protected by law, or those rights were restricted through a violation of their constitutional human or civil rights and liberties or of other requirements of this Code (Article 125.2.1); through the use of violence, threats of violence, deceit, torture or other cruel, inhuman or degrading acts (Article 125.2.2); and where the rules governing investigations or other procedures have been seriously violated (Article 125.2.7). Article 125.3 of the CCrP provides that information, documents and other items obtained in the circumstances described in Article 125.2 of the Code are to be regarded as invalid and may not be used to prove any circumstance with a view to determining a charge correctly. 31. Chapter LII of the Code of Criminal Procedure (“the CCrP”) lays down the procedure by which parties to criminal proceedings could challenge actions or decisions of the prosecuting authorities before a court. Article 449 provides that the victim or his counsel can challenge actions or decisions of the prosecuting authorities concerning, inter alia, refusal to institute criminal proceedings or to terminate criminal proceedings. The judge examining the lawfulness of the prosecuting authorities’ actions or decisions can quash them if he or she finds them to be unlawful (Article 451). The decision of the judge on the lawfulness of the prosecuting authorities’ actions or decisions can be disputed before an appellate court in accordance with the procedure established in Articles 452-453 of the CCrP. 32. The relevant part of the decision of the Plenum of the Supreme Court reads as follows: “... Unlawfully obtained evidence cannot be used in the administration of justice. For this reason, when examining cases courts ... shall not under any circumstances use unlawfully obtained evidence. The court, if it considers that evidence submitted by the prosecution or the investigating authority has been unlawfully obtained, shall give an opinion on the acts of the person having violated the law which excludes in all cases such impugned evidence from the body of evidence in the case ...”
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train
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001-93401
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ENG
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NLD
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ADMISSIBILITY
| 2,009
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BLAGOJEVIC v. THE NETHERLANDS
| 2
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Inadmissible
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Alvina Gyulumyan;Corneliu Bîrsan;Elisabet Fura;Josep Casadevall;Luis López Guerra
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1. The applicant, Mr Vidoje Blagojević, is a Serbian national who was born in 1950. He is currently detained in a prison in Norway, serving a fifteen-year prison sentence imposed by the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (also known as the International Criminal Tribunal for the Former Yugoslavia, hereafter the ICTY). He was represented before the Court by Mr V. Domazet, a lawyer practising in Niš (Serbia). 2 3. On 30 October 1998 the ICTY’s Prosecutor issued an indictment against the applicant. This indictment charged the applicant, who had commanded a brigade of the Bosnian Serb Army (Vojska Republike Srpske, “VRS”) in Eastern Bosnia, with genocide and in the alternative complicity in genocide, extermination as a crime against humanity, murder as a crime against humanity and a violation of the laws and customs of war, and persecutions on political, racial and religious grounds as a crime against humanity. This indictment was amended on 27 October 1999 to include two further charges, namely deportation as a crime against humanity and inhumane acts based on forcible transfer as a crime against humanity. The indictment was kept sealed until the applicant’s arrest. 4. The applicant was arrested by the Stabilisation Force (SFOR) on 10 August 2001 and transferred to the custody of the ICTY the same day. 5. On 16 August 2001 the applicant made his initial appearance in open court, assisted by duty counsel, Mr Van der S. He pleaded not guilty to all charges. On the same day the applicant was ordered placed in detention on remand until further order. 6. The applicant claimed to lack the means to retain counsel and subsequently qualified to have counsel assigned. The ICTY’s Registrar assigned Mr K., pursuant to the applicant’s request, on 5 September 2001. On 25 September 2002 Ms T. was assigned as co-counsel, based on the request of Mr K. 7. On 27 November 2002 the applicant lodged a motion for the replacement of Ms T. By a decision dated 9 December 2002 the Trial Chamber refused to do so, finding that leading counsel Mr K. had expressed confidence in Ms T. and that Ms T. was not incompetent or acting in any way contrary to the applicant’s interests. 8. On 27 March 2003 the applicant again sought the replacement of Ms T. In addition, stating that he had lost confidence in Mr K. who had failed to consult him when choosing Ms T. as co-counsel, he requested the replacement of his entire legal team. On 8 April 2003 the ICTY’s Registrar issued a decision refusing both requests, citing a lack of substantive grounds relating to Ms T.’s peformance or professional ethics and pointing out that a replacement of counsel could cause delays in the proceedings which would affect the applicant’s right to an expeditious trial. 9. Following a statement made by the applicant on 5 May 2003 to the effect that he considered his entire defence team fired, the Trial Chamber on 9 May 2003 instructed the Registrar to appoint independent counsel for the purpose of assisting the applicant in his dispute with his assigned defenders. 10. In the meantime the applicant’s case had been joined with that of another accused, Major J. The trial opened on 14 May 2003. 11. The Registrar appointed the lawyer Mr Sj. in the role of independent counsel on 23 May 2003. On 5 June 2003 Mr Sj. filed a motion seeking that the Trial Chamber instruct the Registrar to appoint a new defence team for the applicant due to an absence of trust and communication with the current team. This was denied by the Trial Chamber on 3 July 2003; however, the Trial Chamber requested that the Registrar appoint a legal representative to assist the applicant and his defence team during the trial process in order to re-establish a relationship of trust. 12. Mr Sj. lodged an appeal against the Trial Chamber’s decision. On 15 September 2003 the Appeals Chamber dismissed the appeal. In so doing it considered that the applicant had failed to demonstrate any error of the Trial Chamber in its impugned decision that would warrant the interference of the Appeals Chamber and that it was in the interests of justice that the applicant retain his assigned counsel, and that the applicant’s trial had been adjourned pending the outcome of his appeal. 13. On 5 April 2004 the Trial Chamber gave a judgment on motions for acquittal lodged by both accused. It acquitted the applicant of planning, instigating and ordering the crimes with which he was charged, with the exception of genocide. This document names Mr K. and Ms T. as the applicant’s counsel. 14. The Trial Chamber rendered a single judgment against both the applicant and Major J. on 17 January 2005. This judgment too names Mr K. and Ms T. as the applicant’s counsel. It found the applicant guilty of complicity to commit genocide, aiding and abetting murder as a crime against humanity and as a violation of the laws or customs of war and of aiding and abetting deportation as a crime against humanity and inhumane acts based on forcible transfer as a crime against humanity. The Trial Chamber then sentenced him to eighteen years’ imprisonment, putting the time which he had spent in ICTY’s custody to his credit towards the sentence. 15. Both the applicant and the prosecution appealed. 16. The Appeals Chamber gave judgment on 9 May 2007. The judgment names the applicant’s counsel as Mr Vladimir Domazet, who is also his representative in the proceedings before the Court. The judgment contains the following passages (footnote references omitted): “17. Blagojević submits that the Trial Chamber violated his right to counsel of his choice when it refused to replace his entire defence team after the breakdown in trust and communication between him and his assigned counsel. This submission consists of two principal arguments. First, Blagojević maintains that, even as a participant in the International Tribunal’s legal aid system, he has a right to counsel of his choice. This argument has no merit. An accused who lacks the means to remunerate counsel shall have the right to have counsel assigned to him by the Registrar from the list drawn up in accordance with Rule 45(B), provided that there is no impediment to the assignment of that counsel. While there is the additional limitation placed on the right of an indigent accused to choose counsel in so far as the choice is limited to the list of counsel maintained in accordance with Rule 45, as previously explained in this case, the Registrar normally takes account of an accused’s preferences in assigning counsel, as was done in the present case, but it is also within the Registrar’s discretion to override that preference in the interests of justice. Once counsel has been properly assigned, as was the case here, counsel has a professional obligation to continue representing the accused and may only be withdrawn or replaced, if sufficient cause exists. 18. Second, Blagojević disputes the conclusion of the Appeals Chamber and Trial Chamber that he was not justified in resisting his assigned legal representation and that he did not show good cause for removing his assigned counsel. Blagojević contends that the breakdown was not, in fact, unilateral because his counsel falsely accused him of trying to engage in fee-splitting. Blagojević argues that this ‘false and tendentious accusation’ destroyed all possibility of re-establishing any form of cooperation between them because in his view his counsel had accused him of being a ‘common criminal’. Though the Appeals Chamber found this argument to be without merit at the pre-trial stage, Blagojević points to an exchange at a status conference during the trial where Mr. [K.], in his view, acknowledged and apologized for making false accusations against him, thereby vindicating his refusal to deal with his counsel. 19. The Appeals Chamber previously explained that the matter of alleged fee-splitting had no bearing on the Trial Chamber’s decision to maintain Blagojević’s assigned counsel. The Appeals Chamber nonetheless considered the nature and possible impact of such an allegation on the lawyer-client relationship ‘for completeness and to ensure finality’. The Appeals Chamber noted that the assigned counsel did not breach any client confidence by raising the issue of fee-splitting, as he was ethically bound to bring such issues to the attention of the Registrar. The Appeals Chamber also determined that this issue should not unduly impact the relationship, in particular, noting that Mr. [K.] did not place blame on Blagojević for attempting to enter into a feesplitting arrangement and instead explained that it resulted from ‘family pressures’. The Appeals Chamber observed that this was consistent with Blagojević’s own explanation. A review of the transcripts of the status conference pointed to by Blagojević does not, contrary to his submissions, indicate that Mr. [K.] admitted to falsely accusing him of trying to engage in fee-splitting. Rather, Mr. [K.] simply made clear, consistent with the submissions previously considered by the Appeals Chamber, that he never accused Blagojević himself of trying to engage in feesplitting. 20. In addition, Blagojević seeks to reopen the issues considered and decided in the interlocutory appeal by arguing that the Appeals Chamber and Trial Chamber failed to appreciate that the breakdown of his relationship with his counsel would last throughout the trial and prevent him from playing any meaningful role in his defence. However, Blagojević’s submissions before trial clearly indicated that he considered the breakdown irreparable. Nonetheless, Blagojević correctly notes that both the Appeals Chamber and Trial Chamber expressed measured optimism that the situation between him and his counsel would improve. This view resulted from the determination that there was no objective basis for Blagojević to be dissatisfied with his counsel’s performance. Blagojević has not called this conclusion into question. More importantly, however, Blagojević’s argument on this point fails to address the key aspect of the Appeals Chamber’s earlier holding. In dismissing Blagojević’s interlocutory appeal, the Appeals Chamber stated: [sub-quotation] In circumstances such as this, where an Appellant unjustifiably resists legal representation from assigned Counsel, Counsel’s professional obligations to continue to represent the accused remain. The Appeals Chamber is satisfied that Counsel in this case is committed to representing the Appellant, and that the Appellant will receive a fair trial with the assistance of his assigned Counsel. In dismissing the Appellant’s appeal, the Appeals Chamber wishes to make it clear to the Appellant that he has now exhausted all avenues available to him to voice his objections that he has not been accorded that to which he has no justifiable reason to demand. The Tribunal will not entertain a demand by an Appellant for that to be granted to him to which he has established no legal entitlement. [end of sub-quotation] 21. Blagojević’s own submissions under the present ground of appeal reflect that the continued breakdown during the trial and the resulting complaints about the conduct of his defence also resulted from his unilateral refusal to communicate with his counsel, rather than from any action on the part of his counsel and Defence team. The Trial Chamber’s decision on Blagojević’s request to testify is exemplary of Mr. [K.]’s continued willingness to meet with and assist him and of Blagojević’s unilateral resistance to any cooperation. The Appeals Chamber considers that an appellant cannot premise a request for a new trial on a claim of a total breakdown in communication in circumstances where the appellant unjustifiably refused to cooperate with his or her assigned counsel throughout the trial proceedings.” 17. The Court understands fee-splitting to be an arrangement under which an accused who has been granted legal aid makes his consent to be represented by assigned counsel conditional on payment to him or her of a portion of the legal aid fees paid to counsel. The judgment includes the following quotation of Mr K. from the transcript of a status conference during the trial (footnote 65 on page 9): “I just want to reiterate, one, I have done nothing for which I need to explain or apologise. I have never divulged any attorney/client privileges, nor have I ever accused Mr. Blagojević of making any attempts to fee split as he seems to indicate. I’ve never accused him of that, nor has he ever made any efforts himself. So I want to make sure that’s very clear on the record. I have nothing more, Your Honour. ” 18. The Appeals Chamber went on to dismiss the prosecution’s appeal in its entirety and to allow the applicant’s appeal in part. It reversed the Trial Chamber’s conviction of complicity in genocide and reduced the sentence to fifteen years’ imprisonment, subject to credit being given for the period which the applicant had already spent in detention. 19. One judge, Judge S., appended a partly dissenting opinion in which he expressed the view that the applicant’s steadfast refusal to recognise Mr K. as his counsel ought to have been respected and that the applicant ought to have been granted a retrial. 20. The Kingdom of the Netherlands ratified the Charter of the United Nations on 10 December 1945. As relevant to the present case, it provides as follows: We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom, And for these ends to practice tolerance and live together in peace with one another as good neighbours, and to unite our strength to maintain international peace and security, and to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and to employ international machinery for the promotion of the economic and social advancement of all peoples, Have resolved to combine our efforts to accomplish these aims Accordingly, our respective Governments, through representatives assembled in the city of San Francisco, who have exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as the United Nations. The Purposes of the United Nations are: 1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; 2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace; 3. To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and 4. To be a centre for harmonizing the actions of nations in the attainment of these common ends. The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles. 1. The Organization is based on the principle of the sovereign equality of all its Members. 2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter. 3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. 4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. 5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action. 6. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security. 7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII. 1. In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. ... The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter. The Security Council may establish such subsidiary organs as it deems necessary for the performance of its functions. The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures. The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations. Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations. All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security. Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided. The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. They shall be concluded between the Security Council and Members or between the Security Council and groups of Members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes. ... The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine. Such decisions shall be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies of which they are members. The Members of the United Nations shall join in affording mutual assistance in carrying out the measures decided upon by the Security Council. ... In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” 21. The ICTY was established by United Nations Security Council Resolution S/RES/827 of 25 May 1993, which reads as follows: “The Security Council, Reaffirming its resolutions 713 (1991) of 25 September 1991 and all subsequent relevant resolutions, Having considered the report of the Secretary-General (S/25704 and Add.1) pursuant to paragraph 2 of resolution 808 (1993), Expressing once again its grave alarm at continuing reports of widespread and flagrant violations of international humanitarian law occurring within the territory of the former Yugoslavia, and especially in the Republic of Bosnia and Herzegovina, including reports of mass killings, massive, organized and systematic detention and rape of women, and the continuance of the practice of ‘ethnic cleansing’, including for the acquisition and the holding of territory, Determining that this situation continues to constitute a threat to international peace and security, Determined to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them, Convinced that in the particular circumstances of the former Yugoslavia the establishment as an ad hoc measure by the Council of an international tribunal and the prosecution of persons responsible for serious violations of international humanitarian law would enable this aim to be achieved and would contribute to the restoration and maintenance of peace, Believing that the establishment of an international tribunal and the prosecution of persons responsible for the above-mentioned violations of international humanitarian law will contribute to ensuring that such violations are halted and effectively redressed, Noting in this regard the recommendation by the Co-Chairmen of the Steering Committee of the International Conference on the Former Yugoslavia for the establishment of such a tribunal (S/25221), Reaffirming in this regard its decision in resolution 808 (1993) that an international tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991, Considering that, pending the appointment of the Prosecutor of the International Tribunal, the Commission of Experts established pursuant to resolution 780 (1992) should continue on an urgent basis the collection of information relating to evidence of grave breaches of the Geneva Conventions and other violations of international humanitarian law as proposed in its interim report (S/25274), Acting under Chapter VII of the Charter of the United Nations, Approves the report of the Secretary-General; Decides hereby to establish an international tribunal for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia between 1 January 1991 and a date to be determined by the Security Council upon the restoration of peace and to this end to adopt the Statute of the International Tribunal annexed to the above-mentioned report; Requests the Secretary-General to submit to the judges of the International Tribunal, upon their election, any suggestions received from States for the rules of procedure and evidence called for in Article 15 of the Statute of the International Tribunal; Decides that all States shall cooperate fully with the International Tribunal and its organs in accordance with the present resolution and the Statute of the International Tribunal and that consequently all States shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute, including the obligation of States to comply with requests for assistance or orders issued by a Trial Chamber under Article 29 of the Statute; Urges States and intergovernmental and non-governmental organizations to contribute funds, equipment and services to the International Tribunal, including the offer of expert personnel; Decides that the determination of the seat of the International Tribunal is subject to the conclusion of appropriate arrangements between the United Nations and the Netherlands acceptable to the Council, and that the International Tribunal may sit elsewhere when it considers it necessary for the efficient exercise of its functions; Decides also that the work of the International Tribunal shall be carried out without prejudice to the right of the victims to seek, through appropriate means, compensation for damages incurred as a result of violations of international humanitarian law; Requests the Secretary-General to implement urgently the present resolution and in particular to make practical arrangements for the effective functioning of the International Tribunal at the earliest time and to report periodically to the Council; Decides to remain actively seized of the matter.” 22. Annexed to the resolution was the “Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991”. Elements of the Statute relevant to the case before the Court are the following: 1. The judge of the Trial Chamber to whom the indictment has been transmitted shall review it. If satisfied that a prima facie case has been established by the Prosecutor, he shall confirm the indictment. If not so satisfied, the indictment shall be dismissed. ... 1. All persons shall be equal before the International Tribunal. 2. In the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to article 22 of the Statute [protection of victims and witnesses]. 3. The accused shall be presumed innocent until proved guilty according to the provisions of the present Statute. 4. In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality: (a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) to be tried without undue delay; (d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) to have the free assistance of an interpreter if he cannot understand or speak the language used in the International Tribunal; (g) not to be compelled to testify against himself or to confess guilt. 1. The Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor on the following grounds: (a) an error on a question of law invalidating the decision; or (b) an error of fact which has occasioned a miscarriage of justice. 2. The Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial Chambers. 1. The Convention on the Privileges and Immunities of the United Nations of 13 February 1946 shall apply to the International Tribunal, the judges, the Prosecutor and his staff, and the Registrar and his staff. 2. The judges, the Prosecutor and the Registrar shall enjoy the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law. 3. The staff of the Prosecutor and of the Registrar shall enjoy the privileges and immunities accorded to officials of the United Nations under articles V and VII of the Convention referred to in paragraph 1 of this article. 4. Other persons, including the accused, required at the seat of the International Tribunal shall be accorded such treatment as is necessary for the proper functioning of the International Tribunal. The International Tribunal shall have its seat at The Hague.” 23. As relevant to the case before the Court, the Agreement between the United Nations and the Kingdom of the Netherlands concerning the Headquarters of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law committed in the Territory of the Former Yugoslavia since 1991 (“Headquarters Agreement”) reads as follows: “The United Nations and the Kingdom of the Netherlands, Whereas the Security Council acting under Chapter VII of the Charter of the United Nations decided, by paragraph 1 of its resolution 808 (1993) of 22 February 1993, inter alia ‘that an international tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991’; Whereas the International Tribunal is established as a subsidiary organ within the terms of Article 29 of the Charter of the United Nations; Whereas the Security Council, in paragraph 6 of its resolution 827 (1993) of 25 May 1993 further inter alia decided that ‘the determination of the seat of the International Tribunal is subject to the conclusion of appropriate arrangements between the United Nations and the Netherlands acceptable to the Council’; Whereas the Statute of the International Tribunal, in its Article 31, provides that ‘the International Tribunal shall have its seat at The Hague’; Whereas the United Nations and the Kingdom of the Netherlands wish to conclude an Agreement regulating matters arising from the establishment and necessary for the proper functioning of the International Tribunal in the Kingdom of the Netherlands; Have agreed as follows. ... This Agreement shall regulate matters relating to or arising out of the establishment and the proper functioning of the Tribunal in the Kingdom of the Netherlands. The General Convention and the Vienna Convention shall be applicable mutatis mutandis to the Tribunal, its property, funds and assets, to the premises of the Tribunal, to the Judges, the Prosecutor and the Registrar, the officials of the Tribunal and persons performing missions for the Tribunal.” The expressions “General Convention” and “Vienna Convention” refer to the Convention on the Privileges and Immunities of the United Nations adopted by the General Assembly of the United Nations on 13 February 1946 and the Vienna Convention on Diplomatic Relations of 18 April 1961, respectively (Article I (u) and (v) of the Headquarters Agreement). 1. The premises of the Tribunal shall be under the control and authority of the Tribunal, as provided in this Agreement. 2. Except as otherwise provided in this Agreement or in the General Convention, the laws and regulations of the host country shall apply on the premises of the Tribunal. 3. The Tribunal shall have the power to make regulations operative on the premises of the Tribunal for the purpose of establishing therein the conditions in all respects necessary for the full execution of its functions. The Tribunal shall promptly inform the competent authorities of regulations thus enacted in accordance with this paragraph. No law or regulation of the host country which is inconsistent with a regulation of the Tribunal shall, to the extent of such inconsistency, be applicable within the premises of the Tribunal. 4. Any dispute between the Tribunal and the host country, as to whether a regulation of the Tribunal is authorised by this Article, or as to whether a law or regulation of the host country is inconsistent with any regulation of the Tribunal authorised by this Article, shall be promptly settled by the procedure set out in Article XXVIII, paragraph 2 of this Agreement [i.e. arbitration]. Pending such settlement, the regulation of the Tribunal shall apply and the law or regulation of the host country shall be inapplicable on the premises of the Tribunal to the extent that the Tribunal claims it to be inconsistent with its regulation. 1. The host country shall not exercise its criminal jurisdiction over persons present in its territory, who are to be or have been transferred as a suspect or an accused to the premises of the Tribunal pursuant to a request or an order of the Tribunal, in respect of acts, omissions or convictions prior to their entry into the territory of the host country. 2. The immunity provided for in this Article shall cease when the person, having been acquitted or otherwise released by the Tribunal and having had for a period of fifteen consecutive days from the date of his or her release an opportunity of leaving, has nevertheless remained in the territory of the host country, or having left it, has returned.” 24. The ICTY’s Rules of Procedure and Evidence, as in force on 15 September 2003 and as relevant to the case before the Court, provided as follows: (A) Whenever the interests of justice so demand, counsel shall be assigned to suspects or accused who lack the means to remunerate such counsel. Such assignments shall be treated in accordance with the procedure established in a Directive set out by the Registrar and approved by the permanent Judges. ... ... (G) A suspect or an accused electing to conduct his or her own defence shall so notify the Registrar in writing at the first opportunity. (A) (i) A Chamber may, after a warning, refuse audience to counsel if, in its opinion, the conduct of that counsel is offensive, abusive or otherwise obstructs the proper conduct of the proceedings. (ii) The Chamber may also determine that counsel is no longer eligible to represent a suspect or accused before the Tribunal pursuant to Rule 44 and 45. ...” 25. The member States of the North Atlantic Treaty Organisation (NATO) have entered into an agreement (Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces, London, 19 June 1951, as supplemented by the Supplementary Agreement of 1959 (subsequently amended in 1971, 1981 and 1993) – “NATO Status of Forces Agreement”). It regulates, among other things, criminal jurisdiction over members of their armed forces serving on each other’s territory. Article VII of this Agreement provides as follows: “1. Subject to the provisions of this Article, a. the military authorities of the sending State shall have the right to exercise within the receiving State all criminal and disciplinary jurisdiction conferred on them by the law of the sending State over all persons subject to the military law of that State; b. the authorities of the receiving State shall have jurisdiction over the members of a force or civilian component and their dependents with respect to offences committed within the territory of the receiving State and punishable by the law of that State. 2. a. The military authorities of the sending State shall have the right to exercise exclusive jurisdiction over persons subject to the military law of that State with respect to offences, including offences relating to its security, punishable by the law of the sending State, but not by the law of the receiving State. b. The authorities of the receiving State shall have the right to exercise exclusive jurisdiction over members of a force or civilian component and their dependents with respect to offences, including offences relating to the security of that State, punishable by its law but not by the law of the sending state. c. For the purposes of this paragraph and of paragraph 3 of this Article a security offence against a State shall include: i. treason against the State; ii. sabotage, espionage or violation of any law relating to official secrets of that State, or secrets relating to the national defence of that State. 3. In case where the right to exercise jurisdiction is concurrent the following rules shall apply: a. The military authorities of the sending State shall have the primary right to exercise jurisdiction over a member of a force or of a civilian component in relation to i. offences solely against the property or security of that State, or offences solely against the person or property of another member of the force or civilian component of that State or of a dependent; ii. offences arising out of any act or omission done in the performance of official duty. b. In the case of any other offence the authorities of the receiving State shall have the primary right to exercise jurisdiction. c. If the State having the primary right decides not to exercise jurisdiction, it shall notify the authorities of the other State as soon as practicable. The authorities of the State having the primary right shall give sympathetic consideration to a request from the authorities of the other State for a waiver of its right in cases where that other state considers such waiver to be of particular importance. 4. The foregoing provisions of this Article shall not imply any right for the military authorities of the sending State to exercise jurisdiction over persons who are nationals of or ordinarily resident in the receiving State, unless they are members of the force of the sending State. 5. a. The authorities of the receiving and sending states shall assist each other in the arrest of members of a force or civilian component or their dependents in the territory of the receiving State and in handing them over to the authority which is to exercise jurisdiction in accordance with the above provisions. b. The authorities of the receiving State shall notify promptly the military authorities of the sending State of the arrest of any member of a force or civilian component or a dependent. c. The custody of an accused member of a force or civilian component over whom the receiving state is to exercise jurisdiction shall, if he is in the hands of the sending State, remain with that State until he is charged by the receiving State. 6. a. The authorities of the receiving and sending States shall assist each other in the carrying out of all necessary investigations into offences, and in the collection and production of evidence, including the seizure and, in proper cases, the handing over of objects connected with an offence. The handing over of such objects may, however, be made subject to their return within the time specified by the authority delivering them. b. The authorities of the Contracting parties shall notify one another of the disposition of all cases in which there are concurrent rights to exercise jurisdiction. 7. a. A death sentence shall not be carried out in the receiving State by the authorities of the sending State if the legislation of the receiving state does not provide for such punishment in a similar case. b. The authorities of the receiving State shall give sympathetic consideration to a request from the authorities of the sending State for assistance in carrying out a sentence of imprisonment pronounced by the authorities of the sending State under the provision of this Article within the territory of the receiving State. 8. Where an accused has been tried in accordance with the provisions of this Article by the authorities of one Contracting Party and has been acquitted, or has been convicted and is serving, or has served, his sentence or has been pardoned, he may not be tried again for the same offence within the same territory by the authorities of another Contracting Party. However, nothing in this paragraph shall prevent the military authorities of the sending State from trying a member of its force for any violation of rules of discipline arising from an act or omission which constituted an offence for which he was tried by the authorities of another Contracting Party. 9. Whenever a member of a force or civilian component of a dependent is prosecuted under the jurisdiction of a receiving State he shall be entitled: a. to a prompt and speedy trial; b. to be informed, in advance of trial, of the specific charge or charges made against him; c. to be confronted with the witnesses against him; d. to have compulsory process for obtaining witnesses in his favour, if they are within the jurisdiction of the receiving State; e. to have legal representation of his own choice for his defence or to have free or assisted legal representation under the conditions prevailing for the time being in the receiving State; f. if he considers it necessary, to have the services of a competent interpreter; and g. to communicate with a representative of the Government of the sending State and when the rules of the court permit, to have such a representative present at his trial. 10. a. Regularly constituted military units or formations of a force shall have the right to police any camps, establishment or other premises which they occupy as the result of an agreement with the receiving State. The military police of the force may take all appropriate measures to ensure the maintenance of order and security on such premises. b. Outside these premises, such military police shall be employed only subject to arrangements with the authorities of the receiving State and in liaison with those authorities, and in so far as such employment is necessary to maintain discipline and order among the members of the force. 11. Each Contracting Party shall seek such legislation as it deems necessary to ensure the adequate security and protection within its territory of installations, equipment, property, records and official information of other Contracting Parties, and the punishment of persons who may contravene laws enacted for that purpose.” 26. An additional agreement concluded in 1995 (Agreement among the States Parties to the North Atlantic Treaty and the other States participating in the Partnership for Peace regarding the Status of their Forces, Brussels, 19 June 1995) extends the territorial application of this provision to non-NATO member States participating in the Partnership for Peace. 27. On 18 September 1998 the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of the Netherlands, acting in pursuance of a resolution of the Security Council under Chapter VII of the United Nations Charter (Resolution 1192 of 27 August 1998), concluded an agreement under which the Netherlands Government undertook to host a Scottish Court for the purpose and the duration of a trial under Scots law and procedure of two Libyan nationals accused of bombing a civilian passenger aircraft over Lockerbie, Scotland, in 1988 (Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of the Netherlands concerning a Scottish trial in the Netherlands (with annexes), [2002] 2062 United Nations Treaty Series – UNTS – pp. 81 et seq.). The Scottish Court in the Netherlands existed until 2002.
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train
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001-59931
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ENG
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GRC
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CHAMBER
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CASE OF YAGTZILAR AND OTHERS v. GREECE
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Violation of Art. 6-1 regarding the right of access to court;Violation of Art. 6-1 regarding the length of proceedings;Violation of P1-1
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András Baka
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7. In 1925 the Greek State occupied an olive grove of a total area of 3,877,000 sq. m in Chalkidiki (northern Greece) and assigned it to the Refugees’ Relief Committee (Επιτροπή Περιθάλψεως Προσφύγων) with a view to settling refugees from Asia Minor there following the mandatory exchange of populations with Turkey under the 1923 Treaty of Lausanne. The land was occupied without any compensation being paid to the owners of the olive grove, of whom the applicants are the heirs. The basis for the occupation was a government ordinance of 14 February 1923 authorising the expropriation and occupation of land before any compensation was paid to its owners. The ordinance was subsequently ratified by a constitutional resolution of 15 September 1924; its content was also incorporated into Article 119 of the 1927 Constitution. 8. On 21 August 1933, by decision no. 81/1933 of the Expropriations Committee of Chalkidiki (Επιτροπή Απαλλοτριώσεων Χαλκιδικής), the Greek State expropriated the land in question. 9. On 8 December 1933 the applicants lodged an application with the appropriate courts for compensation owed them by the State, which had in the meantime taken over from the Refugees’ Relief Committee. Following that application the following judgments, among others, were delivered: (i) interlocutory decision (προδικαστική) no. 28/1934 of the Chalkidiki Court of First Instance ordering a number of expert assessments; (ii) final decision no. 28/1936 of the Chalkidiki Court of First Instance assessing the final unit amount of compensation at 2,008 drachmas (GRD) per square metre; the parties appealed against that decision; (iii) interlocutory judgment no. 54/1938 of the Salonika Court of Appeal setting aside the decision and ordering the parties to produce supplementary evidence; (iv) decision no. 4/1939 of the President of the Chalkidiki Court of First Instance recognising that the applicants were entitled to the compensation assessed; (v) judgment no. 155/1939 of the Salonika Court of Appeal quashing judgment no. 54/1938 and ordering the case to be remitted to the Chalkidiki Court of First Instance; (vi) decision no. 89/1940 of the Chalkidiki Court of First Instance assessing the final unit amount of compensation at GRD 2,720 per square metre; the parties appealed against that decision, but the hearing was not held until 23 January 1961; in the meantime, on 29 April 1959, the applicants had lodged a further application with the Court of Appeal for an assessment of the compensation amount; (vii) judgment no. 96/1961 of the Salonika Court of Appeal ordering a fresh expert assessment, which was begun in 1971 and completed in 1977; at a hearing on 13 February 1979 the applicants claimed GRD 110,000 per square metre and the State raised an objection on the ground that their right to compensation had lapsed; (viii) interlocutory judgment no. 654/1979 of the Salonika Court of Appeal dismissing the objection raised by the State and ordering the applicants to justify their assessment of the value of their land; (ix) judgment no. 1718/1981 of the Salonika Court of Appeal dismissing a further objection raised by the State that the right to compensation had lapsed and assessing the final unit amount of compensation at GRD 50,000 to GRD 180,000 per square metre; the State lodged an appeal on points of law against that judgment, raising the same objection again; (x) judgment no. 1305/1983 of the Third Division of the Court of Cassation, setting aside the Court of Appeal’s judgment on procedural grounds and remitting the case to the Fourth Division; subsequently, on 12 December 1983, the applicants lodged a fresh application with that court for a compensation amount to be assessed; (xi) judgment no. 1684/1984 of the Fourth Division of the Court of Cassation ordering the case to be remitted to the Chalkidiki Court of First Instance to determine the merits of the applications lodged by the applicants on 29 April 1959 and 12 December 1983. 10. On 29 June 1988 the applicants resumed the proceedings before the Chalkidiki Court of First Instance. They also lodged a further application for a final unit amount of compensation to be assessed. They sought GRD 400 per square metre. In its observations in reply of 20 March 1989, the State pleaded again that the applicants’ right to compensation had lapsed. 11. A hearing was held on 22 March 1989. On 22 May 1989 the court ordered the applicants to justify their assessment of the value of their land. On 21 November 1991 the applicants requested the judge rapporteur to set a date for the hearing of witnesses. An expert assessment was also carried out. 12. On 28 February 1992 the applicants asked the court to set a hearing date. The hearing was held on 7 October 1992. 13. On 4 December 1992 the court decided to adjourn its examination of the case on the ground that an investigative measure (αυτοψία) had not been carried out (decision no. 239/1992). 14. On 16 June 1994 the applicants asked the court to fix a hearing date. The hearing was held on 1 September 1994. 15. On 24 October 1994 the Chalkidiki Court of First Instance dismissed as unfounded the objection raised by the State that the applicants’ right to compensation had lapsed and determined the final unit amount of compensation at GRD 395 per square metre (decision no. 233/1994). 16. On 4 January 1995 the State lodged an appeal against that decision. It again raised the same objection. 17. On 17 July 1995 the Salonika Court of Appeal set aside decision no. 233/1994 on the ground that the lower court had incorrectly dismissed the objection raised by the State that the applicants’ claim was statute-barred. Indeed, the Court of Appeal considered that the applicants’ right to compensation had lapsed since at least 1971. Giving judgment on the merits, it dismissed the applicants’ application of 29 June 1988 on the ground that as their claim was statute-barred, they no longer had locus standi (judgment no. 3156/1995). 18. On 6 December 1995 the applicants lodged an appeal on points of law. In their statement of grounds of appeal they submitted that the Court of Appeal had misinterpreted the facts and the constitutional and legislative provisions relating to the limitation of actions, and had wrongly assessed the evidence. They added that, in any event, the objection had already been dismissed by judgments nos. 654/1979 and 1718/1981 of the Salonika Court of Appeal. The applicants stressed, lastly, that they had never received any compensation for the expropriation of their land and that the objection now raised against them contravened the principle of good faith and infringed in particular their right to peaceful enjoyment of their possessions. 19. On 15 July 1997 the Court of Cassation, after examining all the grounds of appeal on points of law submitted by the applicants, dismissed their appeal on the ground that it was ill-founded (judgment no. 1302/1997).
| 1
|
train
|
001-120063
|
ENG
|
TUR
|
CHAMBER
| 2,013
|
CASE OF ÇAKIR AND OTHERS v. TURKEY
| 4
|
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
|
Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen
|
5. The applicants’ birth years are indicated in the annex below. They all live in Sinop. 6. On various dates in 2005 and 2006 the applicants brought separate sets of proceedings against their employer, claiming compensation for their unpaid salaries. 7. In 2006, 2007 and 2008 respectively, the Sinop Civil Court of General Jurisdiction, sitting as a Labour Court, delivered its judgments, ruling in favour of the applicants. The court stated that in addition to the compensation, the employer company had to pay proportional court fees ranging from 66 to 785 Turkish liras (TRY). 8. On 20 October 2008 the applicants requested copies of the writs of execution in order to enforce the judgments in their favour, as the employer company had not paid the required court fees. They argued that the company had gone bankrupt and that they would not be able to obtain the compensation awarded to them by the court at a later date. 9. On 6 November 2008 the Sinop Civil Court of General Jurisdiction rejected the applicants’ request. The court stated that pursuant to section 28(1)(a) of the Law on Fees (Law no. 492), the writs could not be served on the applicants unless all the fees were paid, either by the employer company or by the applicants themselves in the event that the former failed to do so. 10. The judgments in favour of the applicants have not been executed to date. 11. At the time of the events, section 28(1)(a) of the Law on Fees read: “Section 28(1) – Time-limit for the payment of fees The proportional fees set out in scale no. 1 shall be paid within the following periods: (a) One quarter of the fees for the judgment and the writ shall be paid beforehand and the rest shall be paid within two months of the judgment’s delivery ... The writ shall not be served on the party concerned unless the [court] fees for the judgment and the writ of execution are paid ...” 12. Decision of the Constitutional Court and the subsequent change in section 28(1)(a) of the Law on Fees In a decision dated 14 January 2010, the Constitutional Court repealed the provision in the second sentence of section 28(1)(a). The court indicated that to put the burden of paying the court fees on the party whose case had been accepted and who had been held exempt from those very fees by the first-instance court’s judgment was incompatible with the right of access to court and, in particular, with the right to have a judgment executed. In this respect, the higher court pointed out that the repealed provision referred to proportional fees, which were calculated on the basis of the main amount at issue. Subsequently, in July 2010 section 28(1)(a) was amended. Following that change, the second sentence reads as follows: “... Failure to pay the court fees for the judgment and the writ of execution would not prevent the execution of the judgment, its service on the parties or the parties’ right to have recourse to appeal proceedings.”
| 1
|
train
|
001-82290
|
ENG
|
POL
|
CHAMBER
| 2,007
|
CASE OF NOWAK v. POLAND
| 4
|
No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)
|
Nicolas Bratza
|
4. The applicant was born in 1971 and lives in Brzeg. 5. On 21 May 1999 the Brzeg District Court (Sąd Rejonowy) issued a “wanted” notice in respect of the applicant and several other men in connection with an investigation into allegations made by six women, some of whom were minors, that a group of several men had raped them, threatened them, beaten them and forced them to take drugs. The warrant for arrest was issued after the prosecution service had established that the applicant had gone into hiding and the police had unsuccessfully attempted to arrest him. 6. On 21 July 1999 the police attempted to arrest the applicant. However he managed to escape trying in the process to run over police officers while driving away. Two other men sought under the arrest warrant issued in connection with the same investigation were apprehended and arrested. 7. On 9 August 1999 the applicant was arrested by the police. At the time of arrest he was in possession of a firearm and a forged identification document. On 13 August 1999 the Opole District Court ordered that the applicant be remanded in custody in view of the reasonable suspicion that he had committed the following offences: repeated group rape with aggravated cruelty while acting in an organised criminal gang; leading an organised gang; supplying minor victims with drugs; forging an identification document; and destroying a police car. The court also found that, given that he had absconded in the past, there was a risk that the applicant might go into hiding again and try to influence the victims. 8. The applicant appealed against the decision ordering his detention on remand but his appeal was dismissed on 3 September 1999 by the Opole Regional Court (Sąd Okręgowy). 9. On 18 October 1999 the Opole Regional Court prolonged the applicant's detention relying on the reasonable suspicion of his having committed the offences and on the complexity of the investigation which had not yet been terminated by the prosecutor. 10. On 13 December 1999 the court decided that the applicant's detention should be prolonged. It considered that, in addition to the strong suspicion against the applicant, the severity of the sentence that might be imposed and the risk of his tampering with evidence and influencing witnesses justified holding him in custody. In addition, the court relied on the risk that, given that he had absconded in the past, he might go into hiding again. The court also observed that only detention on remand would secure the applicant's appearance at the trial. 11. On 16 December 1999 the applicant was indicted before the Opole Regional Court. It appears that the first hearing was held on 26 April 2000. In 2000 the trial court held in total 13 hearings. 12. Subsequently, the applicant's detention was prolonged by decisions of 12 June and 13 November 2000 and 15 May 2001. The decisions were based on the reasons given for his detention on previous occasions. 13. Afterwards, as the length of the applicant's detention had reached the statutory timelimit of 2 years laid down in Article 263 § 3 of the Code of Criminal Procedure (Kodeks postępowania karnego), the Regional Court applied to the Wrocław Court of Appeal (Sąd Apelacyjny) asking for the applicant's detention to be prolonged beyond that term. On 28 June 2001 the Wrocław Court of Appeal allowed the application and prolonged his pretrial detention. The Court of Appeal based its decision on the reasonable suspicion that the applicant had committed serious offences and on the risk that he might interfere with the course of justice. The court further considered that the complexity of the case constituted a special circumstance justifying his remaining in custody. 14. On 7 November 2001 the Wrocław Court of Appeal again decided to prolong the pre-trial detention of the applicant, finding that the initial reasons for the detention were still valid. Furthermore, the court examined the course of the proceedings before the Opole Regional Court and agreed that the case was particularly complex and time-consuming, given the number of accused and the considerable amount of evidence which had to be examined. It considered that the trial court had acted diligently as it had taken evidence from nineteen witnesses during the last seven hearings. 15. On 13 February 2002 the Court of Appeal prolonged the applicant's detention until 15 May 2002 16. Nevertheless, the trial court again applied to prolong the applicant's detention. On 8 May 2002 the Court of Appeal granted the application. However, it criticised the Regional Court for the delay in the case and requested the trial court “to take adequate and more intensive action to finish the trial”. The court further took into account that the accused were partly responsible for the length of the proceedings because they had lodged vexatious applications for new evidence to be heard and had not complied with time-limits for filing new submissions. 17. The applicant's numerous applications for release and appeals against decisions prolonging his detention were to no avail. 18. The Opole Regional Court held 23 hearings in 2001 and 21 hearings in 2002. On 31 July 2002 the Opole Regional Court gave a judgment in which it found the applicant guilty of several counts of repeated group rape with aggravated cruelty and false imprisonment committed while acting in an organised criminal gang. The applicant was also convicted of administering an unknown psychotropic substance to some of the victims and use of a forged identity document. The court acquitted the applicant of being the leader of the organised criminal gang. The applicant was sentenced to 11 years' imprisonment. The applicant and other coaccused appealed. 19. On 2 June 2003 the Wrocław Court of Appeal gave a judgment. It amended the first-instance judgment with respect to the applicant reducing his prison sentence to 10 years and 8 months. The applicant lodged a cassation appeal with the Supreme Court (Sąd Najwyższy). 20. On 11 March 2005 the Supreme Court dismissed the cassation appeal as manifestly ill-founded. 21. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its prolongation, release from detention and rules governing other, socalled “preventive measures” (środki zapobiegawcze) are stated in the Court's judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
| 0
|
train
|
001-118645
|
ENG
|
HUN
|
CHAMBER
| 2,013
|
CASE OF BAKSZA v. HUNGARY
| 4
|
Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review)
|
András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen
|
5. The applicant was born in 1974 and lives in Gödöllő. 6. The applicant, married and father of a minor, was arrested on 18 January 2006, because the police found several suspicious spare car parts, car documents and various tools in his vehicle. On the same day he was interrogated on suspicion of attempted aggravated larceny, allegedly committed in respect of a van. 7. On 20 January 2006 the prosecution proposed the applicant’s pre-trial detention. Relying essentially on the above material evidence, it was of the view that there was reasonable suspicion that the applicant and his accomplice, together with other unknown helpers, were active in the car theft business. 8. On the same day, the Dunakeszi District Court ordered the applicant’s pre-trial detention, referring to, but not substantiating, the risks of absconding, collusion and repetition of crime. An accomplice was detained as well. 9. The applicant appealed, challenging the suspicion against him and pointing out that his settled background – he had never been convicted before, had legal income, and supported several family members – rendered unlikely the risks of absconding and repetition of crime. The Pest County Regional Court dismissed the appeal on 27 January 2006, without addressing in detail the applicant’s arguments. 10. On 13 February 2006 the applicant’s detention was prolonged. The decision referred to eight counts of larceny. In his appeal, the applicant pointed out that the material evidence relating to one of the thefts was in no way capable of connecting him to the vehicle in question, whereas in respect of the remaining seven counts, he had not formally been implicated as a suspect. 11. On 28 February 2006 the Regional Court dismissed the appeal. Without addressing in detail the defence’s arguments, the court pointed out that it could not assess the evidence at that stage of the proceedings. 12. On 24 April 2006 the applicant requested his release. He argued that the living conditions of those supported by him had deteriorated. His request was to no avail. 13. Subsequently, the applicant’s detention was repeatedly prolonged at the statutory intervals. The reasoning in the decisions was largely identical to that in the previous ones, and the discrepancy in the counts of theft with which the applicant was charged persisted. His requests for release were to no avail. 14. On 10 July 2006 the prosecution again proposed the prolongation of the applicant’s detention. This time, reasonable suspicion was invoked in respect of four counts of car theft. The reasons for the applicant’s proposed detention remained the same. 15. On 14 July 2006 the District Court held a hearing and sustained the prosecution’s motion, while including in the decision the suspicion of another car theft. The applicant’s appeal and subsequent requests for release were to no avail. 16. On 29 August 2006 an expert was appointed to examine whether or not the material evidence found in the applicant’s car was capable of connecting him to any car theft. 17. Further prolongations took place on 19 October and 16 November 2006, with essentially unchanged reasoning. The applicant’s ensuing requests for release or a less stringent measure were unsuccessful. 18. On 21 December 2006 the applicant was charged with further counts of car theft. 19. On 15 January 2007 the Pest County Regional Court prolonged the applicant’s detention. The underlying reasons were the same as before. In his appeal, the applicant complained that the expert opinion had never been communicated to him. 20. After further prolongations, on 16 May 2007 a bill of indictment was preferred. The applicant was charged with altogether 17 counts of car theft or attempted car theft and one count of forgery of documents. The applicant’s detention was maintained, with reference to the risk of absconding and repetition of crime. 21. The first hearing took place on 21 November 2007. The applicant’s detention was upheld because, in the trial court’s view, the potential severe sanction gave rise to a risk of absconding. No reason was given as to the risk of repetition of crime. 22. The applicant’s subsequent requests for release or a less stringent measure were to no avail. 23. Apart from the one of 10 July 2006, none of the prosecution’s motions to have the applicant’s detention prolonged had made any specific reference to the actual evidence which underlay the alleged risks held against him. The applicant’s lawyer repeatedly complained about having no access to these pieces of evidence – in particular, on 17 July and 20 November 2006 – however, this omission was not redressed; and the courts did not refute the defence’s allegations of having no access. 24. Of the altogether twenty-four decisions on the applicant’s detention, only one contained separate arguments in respect of each of the two co-detainees. 25. The authorities prolonging the applicant’s pre-trial detention considered the possibility of applying less stringent measures on 8 May 14 July and 16 November 2006, but eventually they did not avail themselves thereof. 26. The applicant was finally released on 2 June 2008. A prohibition on leaving his domicile was imposed on him. 27. On 24 May 2011 the applicant was convicted at first instance. The case is currently in the appeal stage. 28. Act no. XIX of 1998 on the Code of Criminal Procedure provides as follows: “(1) Pre-trial detention ordered prior to filing the indictment may continue up to the decision of the court of first instance during the preparations for the trial, but may never be longer than one month. The pre-trial detention may be extended by the investigating judge by three months at the most on each occasion, but the overall period may still not exceed one year after the order of pre-trial detention. Thereafter, pre-trial detention may be extended by the county court acting as a single judge by two months at the most on each occasion, in compliance with the procedural rules pertaining to investigating judges.” “(1) If the period of the pre-trial detention ordered or maintained after filing the indictment a) exceeds six months and the court of first instance has not delivered a conclusive decision, the justification of such pre-trial detention shall be reviewed by the court of first instance, b) exceeds one year, the justification of such pre-trial detention shall be reviewed by the court of second instance. (2) After the lapse of the time period specified in subsection (1) b), the justification of the pre-trial detention ordered or maintained after filing the indictment shall be reviewed by the court of second instance, or, if the procedure is held before the court of third instance, by the court of third instance, at least once in every six months.” “(3) At the session the party [that is, the prosecution] having submitted the motion [on ordering or prolonging pre-trial detention] shall present the evidence substantiating the motion in writing or orally. Those present shall be granted the opportunity to examine – within the limits set forth in section 186 – the evidence of the party having submitted the motion. If the notified party does not attend the session but had submitted his observations in writing, this document shall be presented by the investigating judge.” “(1) Any person having the right to be present at an investigatory action may forthwith inspect the minutes taken. (2) The suspect, the counsel for the defence and the victim may inspect the expert opinion during the investigation as well, but they may only inspect other documents if this does not injure the interests of the investigation. (3) The suspect and the counsel for the defence shall be entitled to receive a copy of the documents they may inspect. (4) The copy of the documents produced, obtained, filed or attached in the course of the investigation and containing the testimony or personal data of the victim or the witness shall not indicate the personal data of either the victim or the witness. No copy may be issued of the draft decisions of the prosecutor or the investigating authority. No copy may be issued of the documents created in the course of communications between the prosecutor and the investigating authority pursuant to sections 165 and 165/A, except for the documents that contain the legal standpoint of the prosecutor and the investigating authority in relation to the case – including particularly the document containing the prosecutor’s instruction concerning the conduct of the investigation, provided that the specific investigation was conducted – provided that this does not interfere with the interests of the investigation.”
| 1
|
train
|
001-79771
|
ENG
|
FIN
|
CHAMBER
| 2,007
|
CASE OF HUOHVANAINEN v. FINLAND
| 2
|
No violation of Art. 2
|
Nicolas Bratza
|
6. The applicant was born in 1964 and lives in Liperi. 7. On 2 December 1994 the applicant's 27-year-old brother J. was shot dead at six metres' range by the police following a two-day siege. The following events led up to the shooting: 8. On the evening of Wednesday 30 November 1994 J. threatened a taxi driver with a gun, forcing him to abandon his car. J. pointed his gun, which had a silencer on it, at the driver's chest and then pushed it against his abdomen with force causing loss of breath. While on the ground the driver was forced to put his hands up and his clothes were searched. He was then ordered to lie on the ground face down. When he tried to look up, J. held the gun to the back of his head and said “if you move, you know what this gun will do”. Finally, J. let the taxi driver go having taken a torch from the car. 9. Later that night, J. shut himself in his rented house on the island of Ängeslandet in the municipality of Kirkkonummi. He did not take any hostages. The island was subsequently evacuated. 10. According to the Government, the island comprises several hundred hectares of woods with several inhabited houses. It was sealed off from the mainland by the police. The area of the siege was not illuminated by lights other than those coming from J.'s house. There was daylight between 8 a.m. and 4 p.m. At night, there was no moonlight due to cloud. There was not enough snow, either, to provide enhanced visibility. In fact, the greater part of the operation was conducted in darkness. The temperature was around zero. 11. There were two bridges to the mainland. The island could also be left by boat or by walking in the shallow water or on the ice which covered some of the water. The house stood near the water and had doors and windows on all sides. The ground was uneven and covered with rocks, tree trunks and densely growing bushes. The surrounding area did not provide the police officers with cover. Some of them had visual cover only. 12. According to the applicant, the Government deliberately described the scene of the events as more difficult than it actually was. The location of the house was secluded. The trees surrounding it had been cut down by two armoured vehicles at the scene. There was no direct access to the woods from the bedroom door in the north-eastern part of the house. 13. According to the Government, a total of 50-60 police officers took part in the police operation. According to the applicant, more than 100 police officers and other officials participated in the two-day siege. 14. The house was surrounded by the police. During the night and in the early hours of Thursday 1 December 1994 the police gathered information from various sources. Having learnt that J. had been convicted of criminal activities, they contacted the police in his former home town. The police at the scene were informed that he had previously been involved in an armed siege, that he had been admitted to a psychiatric institution and that he was considered to be especially hostile towards the police. The police also contacted the psychiatric institution where J. had received treatment and were informed that it would be very difficult to conduct negotiations with J., who was extremely impulsive, paranoid, aggressive and incapable of co-operating. In order to draw up a profile of J., further information was received from two psychiatrists and one psychologist, from police officers who had been involved in J.'s previous siege and from his family and acquaintances. 15. At the beginning of the operation the instructions regarding the use of force were first to apprehend J. by issuing instructions to him, to refrain from using weapons and to act within the limits of self-defence: 1. In a self-defence situation each police officer decides for him or herself on the use of force. 2. If the suspect comes out without a gun, he shall be issued with instructions and be apprehended using a police dog if necessary. 3. If the suspect comes out with a gun, he shall first be given instructions and if possible the police dog shall be used. If he approaches carrying a gun, shots may be aimed at his legs as a last resort. The suspect must not be allowed to exit the cordoned area. 16. The border guard provided assistance in the form of a patrol boat and a helicopter. Units from the fire department were at the scene and an air ambulance was initially on stand-by and was moved closer at a later stage. 17. The police acquired the construction plan of the house but as a search at night would have been too risky it was postponed until the morning. At first light, the police started to approach the house in a line. A police dog and handler were on duty but when J. was spotted in the woods, armed, they were too far away to act and they lost sight of him. After J. had been sighted around and in the house and the situation had escalated, the search plan was abandoned altogether. 18. The police tried several times to contact J. by telephone, without success. From around noon a psychologist from the Police Academy was present to assist in the negotiations. However, no telephone calls were successfully put through. 19. Due to the lack of appropriate maps, the difficult surroundings and the safety hazards facing the police officers, the search was continued using a helicopter, which later spotted J. near the house. Following the sighting, the police moved closer to the house. The proper siege began at around noon. At that time there were 32 police officers present. 20. At about 2 p.m. the officer in charge at the scene, Superintendent T., requested the Ministry of the Interior to authorise the use of the Special Police Task Force. The request was granted and 23 specially trained police officers joined the police at the scene under the instruction of their commander, Superintendent H. Upon arrival, H. was informed by Superintendent T. of the instructions on the use of force. 21. The police moved closer to the building to establish direct contact with J., whereupon he fired shots in the air. Additional shots were fired by J. during the day some of which at the police officers at the scene. In addition to attempts to make direct contact, the negotiators tried repeatedly to reach J. by telephone, by leaving messages on his answering machine and by sending faxes. During the afternoon and early evening three short phone calls were successfully put through. However, J. refused to negotiate. At around 4 p.m. he said “many will go with me once I come out” and “I will count to ten and there will be nobody in the bushes”, whereupon he exited the house and shot in the air repeatedly. At 4.10 p.m. he stated “I will teach [you] a third and final lesson”. At 4.46 p.m. J. called the negotiator to say that he had fired his gun “because he did not know who [they] were”. 22. Around that time J.'s brother O. arrived at the scene. He informed the police that J. owned a 22 calibre small-bore rifle and a very heavy 45-70 calibre sporting gun. J. was also said to be an excellent shot, having practised shooting as a hobby. J. could not however be reached by telephone at the time. 23. At the scene, the police spotted J. carrying two long-barrelled weapons. The operation was scaled up, with enhanced security measures put in place to protect the police officers and any other persons in the area. At 9.15 p.m. O. called to inform that J. had called him and promised to let him into the house at dawn. During the evening and night J. was heard moving around outside in the darkness. The police had several lights trained on the house, but J. shot them all. At around 10 p.m. J. fired several shots in the air and at the police. The helicopter, which was training a searchlight on the house, was hit by J.'s small-bore rifle and had to perform an emergency landing in a nearby field. At around 11 p.m. J. shouted something at the police about a blasting operation, which made them suspect that he might also have explosives in his possession. 24. The closest Special Task Force hideout was located about 15 metres from the house at the edge of the woods. The police considered it impossible to surround the house from farther away without losing sight of it. Moving the operation further away from the house would have enabled J. to move around and possibly to enter other houses. 25. In the early hours of Friday 2 December 1994 the police used audible flares to locate J. and keep him indoors, from where he fired repeatedly through the windows and the skylight. He aimed some of the shots at the police. At 2.27 a.m. there were about 50 police officers on the island. At around 7 a.m. a police officer, S.K., from J.'s former home town (situated over 500 kilometres from the scene of the events) telephoned to inform that J. had called him. At about that time, J. was shooting around him. At 9 a.m. the negotiators managed to make contact with J., who demanded a written assurance that he would not be committed to a psychiatric institution. The request was refused. At 10 a.m. S.K. called J. At 11 a.m. the afore-mentioned psychologist arrived at the scene. At noon J. called S.K. The police's subsequent attempts to make contact failed. 26. The senior police officers assessed the situation in the light of the following incidents which had taken place during the previous night and during the morning. J. had shot at the police over a hundred times, having an excellent shooting position from the roof, which was accessible to him from the skylight. After the operation 14 bullet holes were found in a 15 x 20 cm-sized searchlight situated next to a police hideout. The rock providing cover to the command centre also had dozens of bullet marks on it. The police officers' gear did not give them adequate protection. The police officers' attempts to remain as invisible to J. as possible, the attempts at negotiation and the cutting-off of the telephone lines by the police to allow a night's rest, did not have any effect on J.'s behaviour. The police considered it too dangerous to allow the situation to continue another night, as J. was able to leave the house undetected when it was dark. 27. The senior police officers had lengthy discussions on whether to abandon the siege. However, they decided that public order and safety could not be guaranteed if the operation was abandoned. The use of a police dog was rejected as too risky, since the dog could not operate without the handler and there was no cover for the dog handler near the house. After weighing up the different possibilities, the officer in overall charge obtained executive assistance from the defence forces in the form of two armoured personnel carriers (nos. 31 and 51) with drivers. It had also been suggested by a psychologist at the aforementioned psychiatric institution that “a show of strength in the form of military force and vehicles might allow J. to retreat honourably”. The armoured vehicles also allowed closer monitoring of the house and made possible the use of tear gas and, if necessary, the evacuation of injured persons. 28. Around noon, when repeated negotiation attempts had failed, the officer in charge at the scene, Superintendent T., ordered the use of tear gas to break J.'s resistance. The order was carried out from armoured vehicle no. 51. The gas had no visible effect on J. As his whereabouts in the house were unknown, Superintendent T. ordered the window panes and curtains to be removed some two hours later in order to prevent surprise attacks. Armoured vehicle no. 51 remained at the corner of the green and yellow sides, 5.8 metres from the bedroom door, with a view to observing and effecting an arrest. Shortly after the removal of the window panes J. was spotted on the roof. 29. During the day the police tried repeatedly to reach J. by telephone. However, he did not answer their calls. When it got dark, the searchlights were switched on, whereupon J. fired his gun. At around 4 p.m. J.'s brother O. arrived at the scene but it was considered too dangerous to let him approach the house. The same considerations applied to having the afore-mentioned police officer S.K., who arrived at the scene at 6.20 p.m., approach the house. Meanwhile, at around 5 p.m. the police used a megaphone to make contact with J., without success. 30. At about 6 p.m. J. fired shots towards the armoured vehicles and the border guard boat apparently with a view to shooting the searchlights. In addition, he threw a gas canister and at least two “Molotov cocktails”. At the same time it appears that J. set the house on fire. J. was seen walking around inside carrying a rucksack and breaking glass and furniture in an uncontrolled manner. The police estimated that the situation had become more dangerous and more difficult as it seemed that J. was planning an escape. His conduct was becoming increasingly hostile and self-destructive. His life was deemed to be in danger from the fire. 31. At that point, abandoning the operation was not an option owing to the serious threat posed by J. The use of a dog was impossible under the circumstances, as was the sending of an action team into the burning house. It was decided that the only possible way to stop and apprehend J. in the dark and smoke-filled conditions before he could escape was to order a police officer to shoot with a shotgun aimed at J.'s leg, although shooting was considered extreme and a last resort. 32. At 6.26 p.m. flares were used to have the scene lit. The Special Task Force commander, Superintendent H., and the officer in charge at the scene, Superintendent T., decided that J. should be shot at, on the firm understanding that he be hit only in the leg. The goal of the shooting operation was to rescue J. from the burning building without endangering the other persons at the scene. Senior Constable T.L. was assigned the task of firing the shot. The manner in which he carried out the order was left to his discretion. He chose a shotgun in order to cause as little injury as possible. According to the Government, the shotgun was chosen also in order to minimise the danger to the police officers and rescue personnel on the opposite side of the house. The officer in overall charge, Provincial Chief Inspector K.A., authorised the change of instructions on the use of force at 6.31 p.m., whereupon T.L. fired one 9 x 9 millimetre lead shot through the porthole of armoured vehicle no. 31 at 18 metres' range. J. was hit in the right hand and the upper part of the right thigh. J. was issued with instructions to surrender. 33. The shot had no visible effect on J., who continued to throw objects into the fire and to move around inside the house. No further shooting was authorised since it had proved ineffective. According to the subsequent indictment, J. did not fire his gun after he had been hit. 34. By 6.56 p.m. the house was ablaze. Thirty seconds later the Special Task Force commander, Superintendent H., estimated that J. would exit the house within two minutes if he intended to come out at all before its expected collapse. Due to the noise of the fire no further contact with J. was possible. The police expected him to leave the house either through the bedroom window from which the glass had been removed or through the bedroom door. According to the subsequent indictment, the only way out had been the lower part of the door on the so-called green side of the house. 35. At about 7 p.m. J. broke the glass on the lower part of the bedroom door and cleared the frame of shattered glass with his weapon. He started to crawl out through the opening, which was about 80 centimetres high. He was carrying two weapons. At that point he was hit by two shots fired simultaneously by Senior Constables A. and L., from armoured vehicle no. 51 at six metres' range. Both shots were aimed at J.'s shoulder and arm, but owing to his position, the firing angle through the porthole of the armoured vehicle and the short time available, he was hit in the head. 36. According to the Government, in the final stage of the siege there had been a total of 19 police officers surrounding the building. Out of these, seven officers were inside the armoured vehicles. According to the applicant, the total number had been greater. 37. The prompt resuscitation efforts at the scene were unsuccessful and J. died at 7.35 p.m. The site was sealed off and an investigation was started immediately. 38. During the siege a log was kept of the decisions made and actions taken. Due to the geographical conditions not all the radio conversations were recorded on tape, but the later part of the siege was recorded on audio tape and the use of tear gas was also recorded on video tape. Although the area was sealed off for the crime-scene investigation, some evidence may have been destroyed when the fire was extinguished. Despite this, it was possible to collect details of the bullet holes in and around the building. The investigation, which started immediately, was carried out by the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen), which is one of the national units of the Finnish Police. The National Bureau of Investigation specialises in investigating and preventing serious, organised and international crime. At the national level, it is responsible for criminal intelligence and identification of new types of crime. The National Bureau of Investigation also develops criminal-investigation techniques and provides training in the aforementioned subjects. On 2 December 1994 the investigation into the cause of J.'s death began. 39. At the particular request of J.'s family, certain additional lines of inquiry were followed during the pre-trial investigation. The autopsy report and the results of all the forensic and other investigations, as well as the reports on the siege, were included in the pre-trial documentation, together with a large number of witness statements. 40. Having received the investigation report concerning the cause of death, the National Bureau of Investigation, on 8 February 1995, began to investigate whether anyone involved in the siege had acted in an unlawful manner. 41. In 1995 the decisions made and the actions taken during the operation were studied by a permanent investigation team set up by the Ministry of the Interior. The tasks of the team include investigation of the tactics, plans and actions of particularly dangerous police operations. Occupational safety requirements are considered and improvements suggested where necessary. In addition, the team has an educational role, creating educational material for police forces and giving advice on future operations where appropriate. 42. The investigation team studied the operation in question hour by hour, drew conclusions and made recommendations on the basis of the investigation. The team drew attention in particular to the inadequacies of the police officers' protective equipment and stressed the importance of improving their occupational safety in future operations. The report was finalised within one year of the operation in question. 43. Meanwhile, on the evening of 2 December 1994 the local police issued a press release stating that the situation at the scene had become extremely serious as the suspect had been firing at the police with the apparent intention of breaking through the cordon in order to escape. The police had made tactical use of gas, but the suspect had continued to direct heavy fire at the police and had thrown fire bombs both outside and inside the house, causing the house to catch fire. Finally, the armed suspect had run out of the building. The situation had become so serious that the police had been forced to act. There had been an exchange of fire as a result of which the suspect had been hit and had died. 44. On 2 February 1995 the National Bureau of Investigation issued a press release stating that according to the investigations so far three police officers had each fired once at J. It also stated that there were grounds for investigating whether J. had committed suicide in an unusual manner. 45. At the District Prosecutor's request, the National Bureau of Investigation conducted an additional investigation during the consideration of the charges. 46. On 26 September 1995 the District Prosecutor decided to charge the commander of the Special Task Force, Superintendent H., with negligent homicide and negligent breach of official duty. The indictment was to the following effect. Upon his arrival at the scene, H. had received the afore-mentioned instructions on the use of force (see paragraph 15 above). It was H.'s responsibility to inform his subordinates of the instructions on the use of force. H. duly informed his men, but added the following: “If, despite everything, [the suspect] tries to break through the cordon of police officers, he must be stopped. In the last resort, this may be done by shooting at him in the upper body.” The District Prosecutor considered that H.'s own adaptation of the instructions on the use of force, according to which his men had the right under certain conditions to shoot J. in the upper body, was a fundamental change in orders which H. did not have the right to give without the explicit approval of the officer in charge at the scene or the officer in overall charge. H. must therefore be considered to have breached his official duties on account of his negligence in relaying the instructions to his men. Having regard to the fact that H. was to be considered as having sought to clarify the instructions for his men rather than to deliberately alter them, the District Prosecutor took the view that his conduct, although reprehensible, should be considered only as negligence in the performance of duty. Towards the end of the chain of events of 2 December 1994, just before 7 p.m., J. broke the glass on the lower part of the bedroom door and was about to exit the building with no apparent intention of surrendering to the police, apparently intent on escaping, armed, through the police cordon. At that moment he was hit by two shots fired simultaneously from armoured vehicle no. 51 at six metres' range by two police officers, Senior Constables A. and L. They considered, as did their superior officer, that there was no other way of stopping J., who received a fatal shot to the head. A. and L. were acting on the orders of their superior officer, Sergeant R. Accordingly, the District Prosecutor considered that H. had negligently caused J.'s death, having provided his men with an arbitrary interpretation of the instructions on the use of force, which A. and L. had tried to act upon. 47. On 15 November 1995 the District Prosecutor decided not to bring charges against the officer in overall charge, Provincial Chief Inspector K.A., and the officer in charge at the scene, Superintendent T., for negligent breach of official duty, finding that the shooting of J. in the legs had been justifiable under Chapter 3, Article 8 of the Criminal Code. He also decided not to prefer charges for negligent breach of official duty against A. and L., who had both fired shots at six metres' range. He found that the decision to stop J. by using a gun had been in line with the instructions on the use of force, and justified in the circumstances. While it could be argued that the shots had been fired too early, it was unreasonable in the circumstances to direct criticism at A. and L. 48. Lastly, he decided against bringing charges of manslaughter against Sergeant R., finding that he had given an order to take lawful action against J. There was no evidence that he had ordered A. and L. to shoot to kill. 49. The District Prosecutor therefore concluded that the evidence did not warrant the prosecution of any of the persons involved in the siege, with the exception of the commander of the Special Task Force, Superintendent H., whom he had decided to prosecute by his decision of 26 September 1995. 50. On 22 February 1997 the District Prosecutor also decided against bringing charges of endangering others and committing an offence in the performance of duty against Sergeant R. in his capacity as the superior of the police officer who had fired tear gas into the house. 51. Following the District Prosecutor's decision not to bring charges, J.'s family brought a private prosecution. It appears that some of them were granted free legal assistance. In April 1996 they brought charges against Senior Constable T.L. for aggravated assault and abuse of office, on the ground that he had shot at J. at 18 metres' range, inflicting bodily harm. They also preferred charges against Senior Constables A. and L. for manslaughter and aggravated abuse of office, on the ground that they had shot J. in the head at six metres' range with a 9 x 9 millimetre lead shot, in a situation where he had manoeuvred only his upper body through the door opening. Lastly, Sergeant R. was charged with manslaughter in his capacity as A. and L.'s superior officer, who had ordered them to shoot. The complainants also claimed damages from the State. 52. In the proceedings against the commander of the Special Task Force, Superintendent H., J.'s family did not submit any claims. 53. The District Court held two hearings in November 1995 and took forensic and oral evidence. The members of the Special Task Force involved in the siege appeared before the court and gave evidence to the effect that they had understood their commander, Superintendent H.'s, orders as relating to a self-defence situation in the strict sense. The officer in charge at the scene, Superintendent T., testified that at 6.37 p.m. he had heard Superintendent H. say on the police radio that J. could be shot in the legs when he appeared and that if his gun was pointed towards the police he should be shot dead. T. had been about to correct the order but he had then heard Superintendent H. correct it himself by saying that J. should not be shot dead but shot in the upper body. T. had accepted the change of order and perceived it as an operational tactic in a genuine self-defence situation. He had therefore not intervened. T. considered that H.'s order was in line with the instructions on the use of force. 54. A. gave evidence to the effect that, had J. managed to get up on his feet, he would have posed an immediate threat to the life or health of the police officers in the cordon. A. had perceived the situation as requiring self-defence and had therefore fired his gun. He had done so independently and irrespective of H.'s amendment to the instructions on the use of force. 55. L. gave evidence to the effect that the sector of fire had been too narrow to await a possibility to shoot at J.'s legs. When exiting the house J. had posed a threat to the police officers in the cordon. Due to J.'s position it had not been possible to aim at his legs. L. had perceived the situation as requiring self-defence. H's amendment to the instructions on the use of force had not influenced his judgment. 56. On 18 December 1995 the District Court (käräjäoikeus, tingsrätten) of Raasepori dismissed the charges. It observed that the forensic reports revealed that J.'s death had been caused by a shot fired at six metres' range. It was not known which of the shots fired by Senior Constables A. and L. had brought about his death. The court observed that the instruction had been given to a trained team of specialists used to working closely together. A. and L. had shot at J. independently of their commander Superintendent H.'s amendment to the instructions on the use of force, because they had perceived the situation as requiring self-defence. 57. The District Prosecutor appealed. On 21 August 1997 the Helsinki Court of Appeal (hovioikeus, hovrätten) upheld the lower court's judgment. The acquittal appears to have become final. 58. The District Court of Raasepori conducted an inspection in an armoured vehicle and heard evidence from about thirty witnesses, including four doctors on the subject of the autopsy, J.'s mental health prior to and during the siege and his treatment in a psychiatric institution; six persons responsible for the forensic investigation; the senior police officers; 11 police officers and other police personnel who had been at the scene or working with the remote units; the drivers of and police officers in the armoured vehicles; a negotiator and a firefighter; three experts on ammunition, weapons and tear gas; and two other persons on the nature of the information provided by the police after the operation. The court also had before it the pre-trial investigation records, the medical reports on J. and the reports and opinions concerning the forensic investigation. It also had audio and video tapes of the siege. 59. The doctors testified that J. had been suffering from a serious personality disorder and paranoia, had had a grandiose perception of himself and had been aggressive and violent. They considered that he had been in need of compulsory care at the time of the events. All these factors had made the situation dangerous and urgent. 60. In his testimony, a forensic medical expert, T., expressed the view that firing a shotgun with lead shots, with a scatter of over 30 centimetres, at six metres' range could be considered tantamount to executing the target. The weapon in question was not a precision weapon. 61. Sergeant R. gave evidence to the effect that J.'s behaviour and the way he had exited the house had made clear his intention not to surrender but to break through the cordon while armed. J. had had to be stopped by having shots fired at him from the armoured vehicle, as the lives of the police officers outside would have been endangered by any cross-fire. Several police officers gave evidence to the effect that J. had come out crouching. He had also been carrying the guns, which were pointing outwards. Senior Constables L. and A had aimed at J.'s shoulder, but had hit him in the head. 62. In its judgment of 22 August 1997 the District Court observed that the scope of the case was not to assess whether the actions of the police taken as a whole had been appropriate to the purpose of the siege. The scope was confined to the examination of the charges. 63. The court dismissed the charges against Senior Constable T.L., finding that he had not exceeded his powers. 64. As to the charges against Senior Constables A. and L., the court noted the following. Several witnesses had given evidence to the effect that the shotguns had been pointing outwards when J. had made his way out of the building, whereas the forensic report had stated that the guns had been found pointing inwards after the fire had been extinguished. A firefighter had testified that the power of the fire brigade's hoses might possibly have altered the shotguns' position. In any event, the court found that the position of the shotguns was not decisive. What was decisive was the fact that J. had brought the guns when making his way out and that A. and L. had been convinced that the guns were pointing towards them. The court also attributed importance to the fact that J. had crawled out through the door although he could have opened it and walked out. The manner of exit strongly suggested that he had not planned on surrendering. On the contrary, the court drew the conclusion that J. had tried to exit the building undetected with a view to breaking through the cordon and escaping into the dark woods. As to whether any blame could be attributed to A. and L. for not waiting one or two seconds before shooting in order to be able to target the lower part of his body, the court observed that the forensic examination and a reconstruction of the events had disclosed that A.'s sector of fire had ended one metre to the left of the doorway and the sector available to L. had ended 0.2 metres to the left of the doorway. Having regard to the narrowness of the sectors of fire and the inside of the armoured vehicle and the fact that J. could have disappeared from their sectors of fire at any moment, the court concluded that A. and L. had fired their guns in self-defence. 65. As to their superior officer, Sergeant R., the court found that A. and L. had acted independently and in self-defence, and that his order to shoot had therefore not caused J.'s death. 66. Accordingly, the District Court dismissed the charges and the other claims. 67. The applicant and his co-complainants appealed, requesting a hearing. On 16 and 17 September 1998 the Helsinki Court of Appeal held an oral hearing during which the defendants and five witnesses were re-examined. In addition, it heard evidence from one new witness proposed by the complainants, making a total of ten witnesses. The court refused the complainants' request to re-examine ten other witnesses as being manifestly unnecessary, since their statements either concerned circumstances that had already been clarified during the proceedings in the lower court or were irrelevant. It appears that the defendants did not adduce any oral evidence and that the Court of Appeal, of its own motion, called three of the witnesses who had been examined before the District Court. 68. By a judgment of 23 March 1999 the Helsinki Court of Appeal upheld the lower court's judgment. With regard to the charges against Senior Constable T.L., it found that he had acted in order to effect J.'s arrest under Chapter 3, Article 8(2) of the Criminal Code, which justified the use of force. As to Senior Constables A. and L. and Sergeant R., it found that, following J.'s appearance, armed, in the doorway the arrest situation had turned into a situation requiring self-defence under Chapter 3, Article 6 of the Criminal Code. Making an assessment based on the circumstances at the scene, the court considered that the shooting had been justified and necessary in order to repel an imminent attack and had fulfilled the requirements of the principle of proportionality. 69. On 8 November 1999 the Supreme Court (korkein oikeus, högsta domstolen) refused the complainants leave to appeal by a majority (two votes to one). 70. The right to life is guaranteed under the Constitution of Finland (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999, section 7). At the material time, it was guaranteed under the then Constitution Act (Suomen hallitusmuoto, Regeringsform för Finland; Act no. 94/191, section 6). Manslaughter carried a minimum sentence of eight years' imprisonment or, under mitigating circumstances, four years (Chapter 21, Article 1 (as amended by Act no. 491/1969) of the Criminal Code (rikoslaki, strafflagen) as in force at the relevant time). A person who caused the death of another through negligence could be sentenced to a fine or to imprisonment for a maximum period of two years for negligent homicide (Chapter 21, Article 8 (as amended by Act no. 578/1995) as in force at the time of the criminal proceedings). Aggravated assault carried a maximum penalty of ten years' imprisonment (Chapter 21, Article 6 (as amended by Act no. 491/69) as in force at the relevant time). In matters other than breaches of official secrecy, public servants acting in an official capacity who, as a result of carelessness or inattention, were in breach of or neglected to fulfil their official duties as set out in the relevant provisions or regulations, were liable to a reprimand or a fine for negligent breach of official duty, unless the act viewed overall, in the light of any harmful effects and of other circumstances, was of minor importance (Chapter 40, Article 11 (as amended by Act no. 792/1989) as in force at the relevant time). Persons committing an act which, though otherwise punishable, was necessary in order to repel a present or imminent unlawful attack against themselves or others, or against their property or that of others, were deemed to have acted in self-defence and were therefore not liable to punishment (Chapter 3, Article 6 (as amended by Act no. 621/1967) as in force at the relevant time). A person committing an act not necessary to repel an attack, protect the sanctity of the home or retrieve his or her property, was liable to either a full or a reduced sentence, at the discretion of the court, for overstepping the bounds of self-defence. If the circumstances were such that the person could not reasonably have been expected to retain his or her self-control, no punishment was imposed (Chapter 3, Article 9, paragraphs 1 (as amended by Act no. 621/1967) and 2 (as amended by Act no. 321/1983). That provision was amended with effect from 1 January 2004. It now provides that an act which is necessary in order to repel a present or imminent unlawful attack constitutes legitimate self-defence, unless it manifestly exceeds what, on the basis of an overall assessment, may be deemed justifiable, taking into account the nature and force of the attack, the identity of the defender and the attacker and the other circumstances. However, if the act oversteps the bounds of self-defence (excessive self-defence), the offender is exempt from criminal liability if the circumstances were such that he or she could not reasonably have been expected to act otherwise, taking into account the danger and the sudden nature of the attack and the situation in general (Chapter 4, Article 4 (as amended by Act no. 515/2003). 71. The Police Act in force at the material time (Act no. 84/1966) provided that the duty of the police was to maintain public order and security (section 1). A police officer had the right to remove or apprehend a person and temporarily keep the person in custody if he or she was causing a disturbance or was posing an immediate danger to public order or security. A police officer had the right to apprehend and temporarily keep in custody a person who, on the basis of his or her threats or other behaviour, was likely to commit an offence. A person could also be taken into custody to protect him or her from imminent danger to his or her life or health (section 19). Where a police officer met resistance in the performance of his or her duty, he or she was entitled to use such force as could be deemed justified in view of the nature of the duty, the seriousness of the resistance and the other circumstances prevailing in the situation (Chapter 3, Article 8, paragraph 1 (as amended by Act no. 621/1967) of the Criminal Code as in force at the relevant time). When a person being apprehended, arrested or detained attempts to avoid capture by resisting or escaping, the use of force is allowed in order to capture him or her, to prevent his or her escaping, or keep order, when such measures can be justified in view of the circumstances (Chapter 3, Article 8, paragraph 2 (as amended by Act no. 621/1967). In a situation where greater force has been used than can be deemed justified, the sentence may be reduced on grounds of mitigating circumstances or, if there are very persuasive reasons for so doing, a decision may be taken not to impose any punishment (Chapter 3, Article 9, paragraph 2, as amended by Act no. 321/1983). The Supreme Court has established precedents concerning the right of self-defence in cases relating to police actions in siege situations (nos. KKO 1988:49, 1993:50 and 2004:75). 72. A public corporation is vicariously liable in damages for injury or damage caused through error or negligence in the exercise of public authority. The same liability also applies to other corporations that perform public duties on the basis of an Act, a Decree or an authorisation given in an Act. However, liability is incurred in the exercise of public authority only if the performance of the activity or task, in view of its nature and purpose, has not met the reasonable requirements laid down for it (Chapter 3, section 2 of the Tort Liability Act (Act no. 412/1974). Damages shall constitute compensation for personal injury and damage to property. Where the injury or damage has been caused by an act punishable by law or in the exercise of public authority, or in other cases where there are especially compelling reasons, damages shall also constitute compensation for economic loss that is not connected to personal injury or damage to property (Chapter 5, section 1). A person who has suffered a bodily harm or other personal injury shall be entitled to damages to cover medical costs and the other costs arising from the injury and to compensate for loss of income and maintenance, pain and suffering, invalidity and other permanent disability (Chapter 5, section 2). The provisions on personal injury apply also to damages for the distress caused by an offence against individual liberty, honour or domestic peace or by another comparable offence (Chapter 5, section 6). 73. The court shall decide what is to be regarded as the truth in the case after having carefully evaluated all the facts submitted to it (Chapter 17, Article 2, paragraph 1 (as amended by Act no. 571/1948) of the Code of Judicial Procedure). 74. The police force operates under the supervision of the Ministry of the Interior. It is a three-tier organisation. At the top is the Police Department of the Ministry of the Interior or the Supreme Police Command. Below are the Provincial Police Commands, the national police units, the police training establishments, the Police Technical Centre and, for operational purposes, the Helsinki Police Department. The third level is the local police, who operate under the relevant Provincial Police Command. The Police Department of the Ministry of the Interior also comprises the Police Advisory Board set up by the Government. Each district police force has its own police advisory committee, appointed by the local council. Provisions on the organisation of the police and the duties of the different police units and advisory committees are laid down by the Police Administration Act (laki poliisin hallinnosta, polisförvaltningslagen; Act no. 110/1992). The national police units also come under the supervision of the Ministry of the Interior. However, the National Bureau of Investigation is separate from the provincial and local police forces. A Special Task Force is maintained by Helsinki Police Department, answerable to the Ministry of the Interior. It has no special privileges and must comply with the legal, operational and ethical standards laid down for the police. It is a part of the police structure and always operates under the command of the unit whose operation it is participating in. The lines of action are decided by the officer in overall charge and, on the ground, the Special Task Force is subordinated to the officer in charge at the scene. The duty of the Special Task Force is to be prepared and equipped for situations where normal police operations fail to produce the desired outcome. Its members are trained to act as a specialist team, and have more elaborate protective equipment than the local police. They receive regular training in special operations such as siege and hostage situations. They are members of the police patrol force. In 1994 special operations and training accounted for approximately twenty per cent of their work time. At the material time, the Special Task Force's equipment did not include protective gear against rifle-calibre weapons. The amount of night-vision equipment which they had was not adequate and their clothing was unsuitable for prolonged operations in winter conditions. 75. 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. Paragraph 9 of the UN Force and Firearms Principles provides, inter alia, that “intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life”. 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.”
| 0
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train
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001-76181
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ENG
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TUR
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CHAMBER
| 2,006
|
CASE OF ERKAN v. TURKEY
| 4
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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 1954 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 21 April 1994 the Ankara Civil Court awarded him additional compensation plus interest at the statutory rate applicable. 7. On 11 December 1995 the Court of Cassation upheld that judgment. 8. On 28 January 1998 the amount of 313,000,000 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).
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train
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001-107550
|
ENG
|
EST
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CHAMBER
| 2,011
|
CASE OF ANDREYEV v. ESTONIA
| 3
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Remainder inadmissible;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
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Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska
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7. The applicant was born in 1961 and lived in Narva until his arrest. He is currently serving a prison sentence. 8. The Viru County Court convicted the applicant of repeated rape, between 2001 and 2005, of his minor daughter, and sentenced him to nine years’ imprisonment. As summary proceedings had been applied, the sentence was reduced by one third. The operative part of the judgment was delivered at a hearing on 3 November 2006. After the applicant had informed the County Court of his intention to appeal, the court delivered the full text of the judgment, which was served on the applicant on 22 November 2006. The operative provisions of the full text had been amended – in addition to the originally delivered operative part, the expulsion of the applicant after his release from prison was ordered and a ten-year prohibition on entering the country was imposed. 9. The applicant lodged an appeal with the Viru Court of Appeal, requesting his acquittal or the mitigation of the sentence, including the overturning of the expulsion order. He asked that the case be heard in his absence but in the presence of his legal-aid lawyer, B., who had also participated in the first-instance hearing. He requested, inter alia, that his former wife, the victim’s mother, be re-examined at the appellate court hearing, and asked his lawyer to put certain questions to her. 10. The Court of Appeal scheduled its hearing for 26 February 2007 and informed the parties and the applicant’s lawyer, B. As B. already had another court hearing scheduled for that date, he asked the court to reschedule the hearing or appoint another lawyer for the applicant. The Court of Appeal appointed K. as counsel for the applicant. According to the record of the Court of Appeal’s hearing, K. challenged the assessment of the evidence and the applicant’s conviction by the first-instance court. In the event that the appellate court nevertheless found that the applicant was guilty, K. asked for a more lenient sentence for him. Lastly, he argued that no reasons had been given in the judgment for the applicant’s expulsion and that therefore the expulsion was unlawful. 11. By a judgment delivered on 5 March 2007 the Court of Appeal upheld the County Court’s judgment. Any intention to appeal to the Supreme Court had to be notified in writing to the Court of Appeal within seven days of the delivery of the judgment. An appeal to the Supreme Court, drawn up by a lawyer, had to be deposited with the Court of Appeal within thirty days of service of its judgment on the defendant. 12. On 7 March 2007 the applicant refused to accept the Court of Appeal’s judgment in Estonian. On 15 March 2007 he received a Russian translation. On the following day he submitted a notice indicating his intention to appeal. 13. On Friday, 13 April 2007 the applicant gave to a prison officer an appeal drawn up by himself addressed to the Supreme Court via the Court of Appeal. It was posted on the following working day, Monday, 16 April 2007. 14. Apparently the applicant had telephoned B. from the prison to ask him to draw up an appeal to the Supreme Court. B. had replied that an appeal to the Supreme Court had to be drawn up by K., the lawyer who had represented the applicant before the Court of Appeal. According to B., he telephoned K. immediately and informed him of the applicant’s wish to lodge an appeal with the Supreme Court. According to the applicant, he also telephoned K. 15. According to K., he did not become aware of the applicant’s wish to appeal to the Supreme Court until he was telephoned by the office of the Court of Appeal on 17 April 2007. He was informed that the applicant had submitted a notice of intention to appeal and that, accordingly, an actual appeal had to be drawn up by a lawyer. On 23 April 2007 K. lodged the appeal. He argued that the original operative part of the judgment was decisive, and the imposition of the additional sentence was unlawful and had to be quashed. He also asked for a reduction of the length of the prison sentence. 16. On 9 May 2007 the Supreme Court rejected the appeal drawn up by the applicant since such an appeal had to be drawn up by a lawyer. It also rejected the appeal drawn up by K. on the applicant’s behalf, noting that the last day for lodging it had been 16 April 2007 and the appeal had arrived at the Court of Appeal too late, on 24 April 2007. 17. On 15 May 2007 K. asked the Supreme Court to restore the time-limit for lodging an appeal. On 23 May 2007 the Supreme Court refused because no acceptable reasons had been put forward. 18. In a letter sent to the Supreme Court on 7 June 2007 the applicant insisted that he had done everything he could in the circumstances and asked the Supreme Court to examine his appeal. On 21 June 2007 the Supreme Court replied by a letter reiterating that the appeals drawn up by the applicant himself and K. had been rejected and K.’s request for the restoration of the time-limit dismissed. 19. Subsequently, the applicant made several complaints to courts, the Ministry of Justice and the Chancellor of Justice expressing his dissatisfaction with the actions of the courts and the conduct of K. in dealing with his case. 20. On 17 September 2007 the applicant made a complaint against K. to the Estonian Bar Association (Eesti Advokatuur). He argued that because of K.’s omissions he had been deprived of his right of defence. 21. On 13 November 2007 the Board of the Bar Association (Advokatuuri juhatus) found that there were indications that a disciplinary offence (distsiplinaarsüütegu) had been committed and proposed that the Court of Honour (aukohus) of the Bar Association initiate proceedings in respect of K. Proceedings commenced on 12 December 2007. The Court of Honour gave its decision on 6 March 2008. It considered that K. had had an obligation to take steps to find out whether the applicant wished to appeal against the Court of Appeal’s judgment. However, K. had taken no such steps between the delivery of the appellate court’s judgment (5 March 2007) and the expiry of the time-limit for lodging an appeal (16 April 2007). The Court of Honour found that K. had breached the requirements of the Code of Conduct (Eetikakoodeks) of the Estonian Bar Association and thus committed a disciplinary offence. He was given a reprimand (noomitus) as a disciplinary penalty. 22. In the meantime, the applicant also made a complaint against B. to the Bar Association. On 13 November 2007 the Board of the Bar Association found that B.’s behaviour showed no elements of a disciplinary offence and would not therefore recommend that the Court of Honour initiate proceedings against him. 23. Subsequently, the applicant applied for legal aid to fund the lodging of a request with the Supreme Court for the criminal proceedings to be reopened (teistmine). Such a request had to be drawn up by a lawyer. On 10 March 2008 the Harju County Court granted the applicant legal aid to obtain a lawyer’s opinion on the prospects of success of a request to the Supreme Court for the reopening of the proceedings and of an application to the European Court of Human Rights. On 8 May 2008 the lawyer appointed gave her opinion, according to which the request and application in question had no reasonable prospects of success. On the following day an assistant judge at the Harju County Court endorsed the lawyer’s opinion and terminated the legal aid granted to the applicant, without extending it to the drawing-up of the request and application referred to above. On 19 September 2008 the Tallinn Court of Appeal dismissed an appeal by the applicant against the County Court’s decision to terminate legal aid. 24. Shortly thereafter the applicant applied for legal aid for the second time. On 19 January 2009 the Viru County Court granted his request. 25. On 29 June 2009 L., a lawyer appointed under the legal-aid scheme lodged a request for the reopening of the criminal proceedings (teistmisavaldus) with the Supreme Court, together with a request for the restoration of the pertinent time-limit. In the request the severity of the prison sentence and the later amendment of the operative provisions of the convicting judgment were complained about. It was argued that such subsequent amendment of the operative provisions had been unlawful. It was submitted that the applicant wished to use his right to challenge the Court of Appeal’s judgment in the procedure for the reopening of the criminal proceedings because he had been unable to exercise his ordinary right to appeal against the said judgment. 26. On 22 July 2009 the Supreme Court declined to accept the request. 27. In the meantime, on 24 October 2007 the Citizenship and Migration Board (Kodakondsus- ja Migratsiooniamet) revoked the applicant’s long-term residence permit in Estonia. The applicant challenged the decision before the Tallinn Administrative Court, which on 11 April 2008 dismissed his complaint. On 30 January 2009 the Tallinn Court of Appeal upheld that judgment. On 2 April 2009 the Supreme Court declined to accept the applicant’s appeal. 28. Article 45 § 4 of the Code of Criminal Procedure (Kriminaalmenetluse seadustik) stipulates that the participation of counsel in court proceedings is mandatory. 29. Pursuant to Article 344 § 3, an appeal in cassation may be filed by an advocate acting as criminal defence counsel. 30. Article 345 § 2 provides that an appeal in cassation must be lodged within thirty days of the date when a party to the proceedings had the opportunity to examine the judgment of the court of appeal. Paragraph 5 provides that, at the request of the appellant, the Supreme Court may restore the time-limit for an appeal in cassation if it was allowed to expire for good reason. 31. Article 347 sets forth the requirements for an appeal in cassation. These requirements include formal ones, such as the personal details of the appellant and details of the judgment appealed against, as well as substantial ones, such as an indication of the appellant’s request and reasoning setting out why he or she considers that the substantive law was incorrectly applied or the criminal procedural law was violated. Pursuant to Article 350, if an appeal in cassation does not meet the requirements set out in Article 347, the Supreme Court gives the appellant a time-limit for amending the appeal; in case of a failure to amend the appeal, or if the appeal has been submitted too late, the Supreme Court rejects the appeal. 32. Article 346 provides that the incorrect application of substantive law and the material violation of criminal procedural law are grounds for appeal in cassation. The latter ground is defined in Article 339 of the Code, which at the material time read as follows: “(1) A violation of criminal procedural law is material if: 1) a decision is made in a criminal matter by an unlawful court panel; 2) a criminal matter is heard in the absence of the accused, except in the cases provided for in Articles 267 § 1 and 334 § 1 of this Code; 3) court proceedings are conducted without the participation of counsel; 4) court proceedings are conducted without the participation of the prosecutor; 5) the confidentiality of deliberations is breached in the making of a judgment; 6) a judgment is not signed by all members of the court panel; 7) a judgment does not contain reasons; 8) the conclusions presented in the conclusion of a judgment do not correspond to the facts established with regard to the subject of proof; 9) a criminal matter is heard in a language in which the accused is not proficient without the participation of a translator or interpreter; 10) a record is not made of a court session, with the exception of matters heard by way of summary proceedings. (2) A court may declare any other violation of criminal procedural law to be material if such violation results or may result in an unlawful or unfounded judgment.” 33. Article 349 of the Code of Criminal Procedure provides as follows: “(1) A panel of three justices of the Supreme Court shall decide on the acceptance of an appeal in cassation on the basis of the material in the criminal file ... . ... (4) An appeal in cassation shall be accepted if at least one justice of the Supreme Court finds that: 1) the allegations made in the appeal in cassation give reason to believe that the appeal court has applied substantive law incorrectly or has materially violated criminal procedural law; 2) the appeal in cassation contests the correctness of the application of substantive law or requests the annulment of the judgment of an appeal court on account of a material violation of criminal procedural law, and a judgment of the Supreme Court is essential for the uniform application of the law. ... (5) Acceptance of an appeal in cassation or refusal to accept an appeal in cassation shall be in the form of a decision of the Supreme Court without any reasons being given.” 34. Chapter 13 of the Code of Criminal Procedure sets out the rules concerning a request for the reopening of criminal proceedings. The relevant parts read as follows: “(1) The grounds for the reopening of proceedings (teistmine) are: 1) the unlawfulness or unfoundedness of a judgment or decision arising from the false testimony of a witness, knowingly wrong opinion of an expert, knowingly false interpretation or translation, or falsification of documents, or fabrication of evidence, which is established by another judgment which has taken effect; 2) a criminal offence committed by a judge in the hearing of the criminal matter under review and which is established by a judgment; 3) a criminal offence committed by an official of the body that conducted the pre-trial proceedings, or a prosecutor in the pre-trial proceedings of a criminal matter, and which is established by a judgment, if the criminal offence could have had an effect on the judgment made in the criminal matter under review; 4) the annulment of a judgment or decision which was one of the bases for the judgment or decision in the criminal matter under review, if this may result in the making of a judgment of acquittal in the criminal matter under review, or in the mitigation of the situation of the convicted offender; 5) any other facts which are relevant to the just adjudication of the criminal matter but which the court was not aware of when making the judgment or a decision in the criminal matter under review and which independently or together with the facts previously established may result in a judgment of acquittal or in mitigation of the situation of the convicted offender or in mitigation of the situation of a third party whose property has been confiscated on the basis of a judgment or decision; 6) the Supreme Court declares, by way of constitutional review proceedings, that the legislation of general application or provision thereof on which the judgment or decision in the criminal matter under review was based is in conflict with the Constitution; 7) the satisfaction of an individual application filed with the European Court of Human Rights against a judgment or decision in the criminal matter under review on account of a violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms or a Protocol thereto, if the violation may have affected the resolution of the matter and it cannot be eliminated or damage caused thereby cannot be compensated for in a manner other than by review.” “... (2) A request for the reopening of proceedings shall be accepted if at least one justice of the Supreme Court finds that the allegations made in the petition give reason to presume the existence of grounds for review. ...” 35. Article 369 of the Code of Criminal Procedure sets forth the requirements for a request for the reopening of proceedings. This provision is in substance similar to Article 347, which concerns appeal proceedings. Article 371 provides that Article 350 also applies to requests for the reopening of proceedings (see paragraph 31 above). 36. Article 431 of the Code of Criminal Procedure provides for issues arising in the implementation of judgments for which there is no specific regulation in the preceding provisions of the Code, and other doubts and ambiguities, to be settled by a decision of the court which gave the judgment or the judge in charge of execution of judgments at the county court responsible for enforcing the judgment. 37. Section 19 § 1 of the State Legal Aid Act (Riigi õigusabi seadus), as in force at the material time, provided that an advocate was not allowed to refuse to provide State legal aid to a person or terminate the provision of legal services to a person before the final adjudication of the matter. 38. In a judgment of 17 March 2003 (case no. 3-1-3-10-02) the Supreme Court, sitting in plenary session, dealt with an application from a person convicted under the Criminal Code (Kriminaalkoodeks) who sought to be released from serving his remaining sentence after a new Penal Code (Karistusseadustik) had entered into force because the new Penal Code provided for a shorter maximum prison term for a similar offence. The Supreme Court considered that the applicant’s petition could not be considered a request for the reopening of the criminal proceedings (teistmine) or a petition for the correction of court errors (kohtuvigade parandamine). The Supreme Court held: “17. ... [T]he fact that Article 15 of the Constitution recognises everyone’s right of recourse to the courts, if his or her rights and freedoms are violated, must not be ignored. [The applicant’s] petition concerns the rights referred to in the Constitution ... . Proceeding from Article 15 of the Constitution, the Supreme Court may refuse to hear [the applicant’s] petition only if [the applicant] has other effective ways to obtain judicial protection of the right of recourse to the courts established in the [above] provision of the Constitution.” The Supreme Court proceeded to analyse whether other possible procedures were available to the applicant and concluded: “18. ... [The Supreme Court] is of the opinion that there is no effective remedy for [the applicant] for the protection of his fundamental right. Taking into account this fact, the fundamental rights at stake, and the duration of the sentence served, the [Supreme Court] can find no justification for refusing to hear [the applicant’s] petition on the merits. [The Supreme Court] also bears in mind the need to give the courts clear guidelines on how to resolve similar cases.” 39. Subsequently, dealing with requests lodged in accordance with the procedure for the reopening of criminal proceedings (teistmine), the Supreme Court has in several cases referred to the judgment referred to in the previous paragraph, for example, in the judgments of its Criminal Chamber of 19 October 2009 (case no. 3-1-2-4-09) and 7 April 2010 (case no. 3-1-2-1-10). In the former case, the Supreme Court noted that the grounds invoked by the prosecutor were not included in the exhaustive list given in Article 366 of the Code of Criminal Procedure. Nevertheless, the Supreme Court found that in that case there was no other effective procedure for verifying whether the applicant’s right to liberty had been infringed; it heard the case and ordered the applicant’s immediate release. 40. In the latter case, the Supreme Court, having also established that there were no grounds for reopening the criminal proceedings, nevertheless analysed whether the applicant’s rights had been violated. Finding that this was not the case, it refused to reopen the proceedings. 41. In a judgment of 2 October 2009 (case no. 3-1-2-3-09) the Criminal Chamber of the Supreme Court dealt with a request for the reopening of proceedings (teistmine), filed on 25 May 2009, in a case where two different versions of the operative provisions of a judgment of a first-instance court existed. According to the operative part of the judgment originally delivered by the first-instance court, seven months of the ten-month prison sentence imposed on the defendant were to be suspended. However, according to the operative provisions of the full text of the judgment, delivered at a later date, the defendant had to serve two months’ imprisonment immediately and the remaining eight months were suspended. 42. The Supreme Court declined to reopen the proceedings, finding that there were no grounds for that under Article 366 of the Code of Criminal Procedure. Nevertheless, in order to secure the uniform application of the law and consistency in the case-law, the Supreme Court made it clear that the original operative part of the judgment was to be considered decisive and reiterated that pursuant to Article 431 of the Code doubts and ambiguities arising in the execution of a judgment were to be settled by a decision (määrus) made by the judge in charge of the execution of judgments (täitmiskohtunik).
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train
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001-91323
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ENG
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RUS
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CHAMBER
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CASE OF BANTAYEVA AND OTHERS v. RUSSIA
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Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life);Violation of Article 13+3 - Right to an effective remedy (Article 3 - Prohibition of torture);Violation of Article 13+5 - Right to an effective remedy (Article 5 - Right to liberty and security)
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Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
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6. The applicants are: 1) Ms Dagman Bantayeva, born in 1932, 2) Ms Kometa Mauladiyevna Manayeva, born in 1966, 3) Ms Zina Rashedovna Bantayeva, born in 1970, 4) Ms Khava Abubakarovna Bantayeva, born in 1988, 5) Ms Petimat Salmanovna Bantayeva, born in 1991, 6) Mr Islam Abubakarovich Manayev, born in 1998, 7) Ms Amnat Abubakarovna Bantayeva, born in 1996, 8) Mr Magomed Salmanovich Bantayev, born in 1989, 9) Ms Rayana Salmanovna Bantayeva, born in 2003, 10) Mr Dzhokhar Salmanovich Bantayev, born in 1998, and 11) Ms Amina Abubakarovna Manayeva, born in 1993. 7. The applicants are Russian nationals who live in the village of Komsomolskoye, in the Gudermes district of Chechnya. 8. The applicants are relatives. The first applicant is the mother of Mr Abubakar Aliyevich Bantayev (also known as Bakra Manayev), born in 1957, and Mr Salman Aliyevich Bantayev, born in 1962. Abubakar Bantayev is married to the second applicant; they are the parents of the fourth, sixth, seventh and the eleventh applicants. Salman Bantayev is married to the third applicant; they are the parents of the fifth, eighth, ninth and tenth applicants. The first applicant has two other children, Ms Madina Bantayeva and Mr Shamil Bantayev, who are not applicants in this case. 9. Prior to 2000 Abubakar and Salman Bantayev participated in illegal armed groups. In 2000 they quitted paramilitary activities and voluntarily handed their arms over to the Chechnya Department of the Federal Security Service (the Chechnya FSB). On 21 January 2000 Abubakar and Salman Bantayev were provided with individual statements to this effect by the Department of the Federal Security Service of Gudermes District (the Gudermes FSB) together with the military commander of the security zone of Gudermes District (комендант зоны безопасности). 10. At the material time Russian federal forces checkpoints were located on roads leading to and from the village of Komsomolskoye. 11. According to the first applicant, about five months prior to 2 January 2003, that is, in the summer of 2002, she, her son Salman Bantayev and their neighbour were in a KAMAZ lorry driving from their village to the village of Engel-Yurt in the Gudermes district of Chechnya. On the road between Kadi-Yurt and Engel-Yurt their lorry was stopped by Russian military servicemen in an APC (armoured personnel carrier). They checked the identity papers of Salman Bantayev and his neighbour. The servicemen had a list against which they checked Salman Bantayev’s name. After that they told the first applicant that they would take her son away with them. They put Salman Bantayev into the APC and took him to a military unit stationed near Gudermes. The applicant’s other son, Abubakar Bantayev, went to the military unit on the same day to find out the reasons for his brother’s detention. Later in the evening of the same day Salman Bantayev was released. 12. On the night of 1-2 January 2003 Abubakar Bantayev and his children were sleeping in one part of the house at 1 Zapadnaya Street, in the village of Komsomolskoye. Abubakar Bantayev’s brother, Shamil Bantayev, was sleeping in another part of the house. Abubakar Bantayev’s wife was not at home that night as she was visiting her relatives in another village. 13. Between 3 a.m. and 4 a.m. a group of masked men wearing camouflage uniforms and armed with machine guns broke into the house. The men did not introduce themselves; they spoke Russian without an accent. The fourth applicant thought they were Russian servicemen. 14. The servicemen pointed their guns at the family members and lined them up along the wall. When the fourth applicant started to cry, one of them ordered her in Russian to keep silent. 15. The servicemen searched the house and took the family’s TV set, Abubakar Bantayev’s identity papers and the documents for his car. After that they took Abubakar Bantayev outside, put him into a UAZ vehicle parked next to the house and drove away to an unknown destination. 16. Immediately after Abubakar Bantayev’s apprehension Shamil Bantayev rushed to see their mother in the house of his brother Salman Bantayev. The latter’s house was located just a few minutes’ walk from Abubakar Bantayev’s house. On his way there he met his sister Madina Bantayeva who told him that their brother Salman had also been abducted by armed men. 17. On the night of 1-2 January 2003 the first applicant, Madina Bantayeva, Salman Bantayev and his children were sleeping in Salman Bantayev’s house at 8 Stalskogo Street (also spelled Stalskaya Street), in the village of Komsomolskoye. The house was located about 50 metres from the local military commander’s office. 18. Between 3 a.m. and 4 a.m. on 2 January 2003 a group of around ten men broke into the house. They wore masks and camouflage uniforms with no insignia and were armed with machine guns. They spoke both Russian and Chechen. The applicants thought they were Russian military servicemen. A group of ten servicemen waited outside, next to the grey and khaki-coloured UAZ vehicles parked in the yard. 19. The servicemen tied up Madina Bantayeva and the eighth applicant and put them in one of the rooms. Then they searched the house, ripping upholstery, turning furniture upside down and demanding gold and money from Salman Bantayev. From the window of their room Madina Bantayeva saw the intruders taking some items of their family property and putting them in one of the UAZ vehicles. When Madina Bantayeva saw from the window one of the intruders taking a TV set into the UAZ vehicle, she started screaming that their house was being robbed. The serviceman with the TV set heard this and put the TV set back in the house. 20. The servicemen took a number of items of the family’s property, including a video camera, as well as Salman Bantayev’s identity papers, marriage certificate, documents for his car and the family photograph albums. After that they took Salman Bantayev into the yard. Without letting him put on clothing or shoes, the servicemen put Salman Bantayev in one of the UAZ vehicles and drove away towards Gudermes. 21. The applicants’ neighbour Mrs M.M. testified that late at night on 2 January 2003 she had seen military UAZ cars and a grey UAZ car (“таблетка”) pulling over by Salman Bantayev’s house. About twenty armed men in camouflage uniforms and masks went into the yard. Mrs M.M. thought these men belonged to the Russian military. Having spent about half an hour in the applicants’ house, the servicemen left. Then Mrs M.M. saw the first applicant and her daughter stepping outside the house; the two women told her that the servicemen had taken Abubakar and Salman Bantayev away. Mrs M.M. went into the applicants’ house and saw that everything there had been turned upside down. 22. Shortly after Salman Bantayev’s abduction and the meeting with his sister Madina on the way, Shamil Bantayev came over to his mother’s house and told her that Russian servicemen had also taken Abubakar Bantayev away. 23. The first applicant and Shamil Bantayev immediately went to the Gudermes District military commander’s office (the district military commander’s office) and requested information about their relatives from a duty officer who refused to identify himself. The officer replied that he knew nothing about the Bantayev brothers and that he would not bother his superiors in the middle of the night. 24. In the morning of 2 January 2003 the first applicant reported her sons’ disappearance to the Gudermes District department of the interior (the Gudermes ROVD). Later on the same day the police visited the houses of the Bantayev brothers and collected witness statements. 25. The applicants have had no news of Abubakar and Salman Bantayev since 2 January 2003. 26. In support of their statements, the applicants submitted the following documents: witness statement of the first applicant, provided on 27 February 2005; witness statement of the fourth applicant, provided on 2 March 2005; witness statement of the eighth applicant, provided on 2 March 2005; witness statement of the first applicant’s daughter Mrs Madina Bantayeva, provided on 7 November 2003; witness statement of the first applicant’s neighbour Mrs M.M., provided on 23 March 2004; witness statement of the applicants’ relative Mrs A.R., provided on 27 March 2003; hand-drawn map of the first applicant’s house; copies of statements no. 002 and no. 606 issued by the Gudermes FSB and the military commander of the Gudermes district security zone in respect of Abubakar Bantayev and Salman Bantayev accordingly, confirming that they had surrendered their weapons and quitted their participation in illegal armed groups, both documents dated 21 January 2000. 27. The Government did not dispute the circumstances of the abduction of Abubakar and Salman Bantayev. According to their submission, “during the night of 2 January 2003, unidentified persons in camouflage uniforms and masks, armed with automatic weapons, abducted Salman Aliyevich Bantayev from his house at 8 Stalskaya Street and Abubakar Aliyevich Bantayev from his house at 1 Zapadnaya Street in the village of Komsomolskoye in the Gudermes district of the Chechen Republic”. 28. The Government further submitted that the applicants had not been consistent in their description of the facts as, according to the first applicant, the abductors spoke Russian and Chechen, whereas the eighth applicant had stated that they spoke only Russian. According to the Government, communication in Chechen was not typical for representatives of Russian federal forces. 29. Since 2 January 2003 the first applicant has repeatedly applied in person and in writing to various public bodies. She has been supported in her efforts by the SRJI NGO. In her letters to the authorities the first applicant referred to her sons’ detention and asked for assistance and details of the investigation. Mostly these enquiries have remained unanswered, or purely formal replies have been given in which her requests have been forwarded to various prosecutors’ offices. The applicants submitted some of the letters to the authorities and their replies to the Court. These documents are summarised below. 30. On 4 March 2003 the first applicant requested the head of the Chechen administration, the Chechnya prosecutor and the Chechnya military prosecutor to assist her in the search for her sons. In her letter she stated that her sons had been abducted by unidentified men in camouflage uniforms who had arrived in two UAZ vehicles. She also pointed out that her sons had quitted their participation in illegal armed groups in 2000 and that since then they had been law-abiding citizens. 31. On 22 September 2003 the first applicant wrote to the Prosecutor General, the Chechnya prosecutor’s office, the military prosecutor of the United Group Alignment (the military prosecutor of the UGA) and the Chief Federal Inspector of the Southern Federal Circuit in Chechnya requesting assistance in the search for her sons. In her letters she stated that her sons had been abducted by unidentified men in camouflage uniforms who had arrived in two UAZ vehicles. She also pointed out that her sons had quitted their participation in illegal armed groups in 2000 and since then they had been law-abiding citizens. The applicant requested to be informed whether the authorities had brought any charges against her sons and what had been the reasons for their arrest. 32. On 22 September 2003 the first applicant requested the district prosecutor’s office to institute an investigation into her sons’ disappearance and provide her with information about its progress. 33. On 5 November 2003 the SRJI wrote on behalf of the first applicant to the district prosecutor’s office. They stated that the applicant’s two sons had been taken away by representatives of federal forces in camouflage uniforms who had arrived in two UAZ cars. The SRJI requested to be informed whether an investigation into the Bantayev brothers’ disappearance had been instituted and, if so, which investigative measures had been taken to solve the crime. They also requested that the first applicant be granted victim status in the criminal proceedings. 34. On 4 December 2003 the district prosecutor’s office replied to the SRJI stating that the investigation into the Bantayev brothers’ kidnapping had been instituted on 6 January 2003 and that it had been suspended on an unspecified date for failure to identify the culprits. They further noted that victim status in the criminal proceedings had already been granted to Shamil Bantayev. 35. On 20 January 2004 the SRJI requested the district prosecutor’s office to be informed about progress in the investigation, to have the criminal proceedings resumed and to be provided with information about the measures taken to solve the crime. No response was given to this request. 36. The applicants were not informed about any further progress in the criminal investigation. 37. On 2 January 2003 operational search officer A. of the Gudermes ROVD carried out a crime scene examination in the houses of the abducted Bantayev brothers. It does not appear that any evidence was collected from the crime scene. 38. On 6 January 2003 the district prosecutor’s office instituted an investigation into the abduction of Abubakar Bantayev and Salman Bantayev under Article 126 § 2 of the Russian Criminal Code (aggravated kidnapping). The case file was assigned number 32000. 39. On 24 January 2003 the first applicant’s son Mr Shamil Bantayev was granted victim status in the criminal case. On the same date he was questioned by the investigators and testified that Abubakar Bantayev’s children had told him that at about 4 a.m. on 2 January 2003 their father had been abducted by unknown masked men. The abductors had also taken away a number of items of their property and documents. The witness had decided to inform his other brother Salman about Abubakar’s abduction. On the way to his house he had met his sister Madina who had told him that Salman had also been abducted by unidentified armed men who had arrived at their house in UAZ cars. Salman Bantayev’s abductors had also taken away documents and a number of items of property from the applicants’ house, including a video camera. 40. On 27 February 2003 the investigators questioned the applicants’ relative Mr A.Sh. who testified that he did not have any information about the reasons for the abduction of Abubakar and Salman Bantayev; he also stated that he was aware that in the past the brothers had participated in illegal armed groups. 41. On 6 March 2003 the investigation in criminal case no. 32000 was suspended for failure to identify the perpetrators. 42. On 25 December 2003 the deputy Chechnya prosecutor overruled the decision of 6 March 2003 and the investigation was resumed. 43. On 24 January 2004 the first applicant’s daughter, Mrs Madina Bantayeva, was granted victim status in the criminal proceedings and testified that on 1 January 2003 she had arrived at her mother’s house. Her mother was living with her brother Salman and his family. At about 3 a.m. on 2 January 2003 a group of unidentified armed men in masks had arrived at their house in two UAZ cars, which they had parked in the yard. The men entered the house, turned everything upside down, slashed the furniture’s upholstery, bound her hands with adhesive tape and put her with the first applicant in one of the rooms. Madina Bantayeva had not witnessed the abduction, but the eighth applicant had told her that the abductors had demanded money and gold. Madina Bantayeva stated that she had seen from the window the abductors taking away their property. When she had started screaming that their house was being robbed by the intruders, one of them had returned the TV set to the house. 44. On 24 January 2004 the investigation in the criminal case was suspended for failure to identify the perpetrators. 45. On 21 March 2005 the Gudermes district acting prosecutor overruled the decision of 24 January 2004 and the investigation was resumed. The applicants were informed about this decision. 46. On 22 August 2007 the investigators questioned the eighth and fourth applicants as well as Salman Bantayev’s neighbour, Mrs M.M. The eighth applicant testified that on an unspecified date in January 2003 he had woken up and had seen a group of armed masked men in camouflage uniforms in the house. They had demanded money and gold; having spent about twenty minutes in the house, they had left with his father Salman Bantayev. They had also taken away some of their family’s valuables. The fourth applicant testified that on an unspecified date in January 2003 she had woken up and had seen a group of armed masked men in camouflage uniforms. They had demanded money and gold; having spent about twenty minutes in the house, they had left with her father Abubakar Bantayev. They had also taken away their family’s TV set. Mrs M.M. testified that about 3 a.m. on 2 January 2003 she had seen from her window two UAZ cars next to the Bantayevs’ house. A group of seven or eight men in masks and camouflage uniforms had got out of the cars, entered Salman Bantayev’s house and had left about fifteen minutes later. 47. On the same day, i.e. on 22 August 2007, the investigators refused to open criminal proceedings in connection with the unlawful entry into the home and the theft of documents from the houses of Abubakar and Salman Bantayev due to the expiration of the statutory time-limits, but the district prosecutor’s office instituted an investigation into the theft from the houses of Abubakar and Salman Bantayev on the night of their abduction under Article 162 of the Criminal Code (aggravated robbery). The criminal case file was assigned number 15086. The investigators also granted Shamil Bantayev the status of civil plaintiff in criminal case no. 32000. On 23 August 2007 Madina Bantayeva was granted the same status in the criminal proceedings. 48. On an unspecified date the investigators requested information from the Gudermes ROVD about the passage of military vehicles through the checkpoints in the village of Komsomolskoye on the night of the abduction of the Bantayev brothers. According to the response from the ROVD, no passage of military vehicles had been registered that night. 49. According to the Government, the investigators also requested information from various law enforcement agencies in Chechnya concerning the disappearance of the Bantayev brothers. The Temporary Operational Troops of the Ministry of the Interior in Chechnya (временная оперативная группировка МВД РФ в Чечне), the Chechnya FSB and the Northern-Caucasus Operational Headquarters of Ministry of the Interior (Северокавказское оперативное управление МВД РФ) and other agencies submitted that they had no information concerning the whereabouts of the Bantayev brothers. Law enforcement agencies in Chechnya informed the investigators that their agents had not detained Abubakar Bantayev and Salman Bantayev and had not carried out any investigation in respect of them. The brothers had not been detained on administrative or criminal charges. No special operations had been carried out in respect of the disappeared men. 50. The investigation in the criminal case failed to establish the whereabouts of Abubakar and Salman Bantayev. However, it found no evidence to support the involvement of servicemen of federal forces in the abduction of the applicants’ relatives. 51. The Government further submitted that the investigation into the abduction of the Bantayev brothers had been suspended and resumed on several occasions, and so far it had failed to identify the perpetrators. The applicants had been duly informed of all decisions taken during the investigation. 52. Despite specific requests by the Court the Government did not disclose any documents from criminal case no. 32000. The Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings. 53. For a summary of relevant domestic law see Akhmadova and Sadulayeva v. Russia, no. 40464/02, § 67-69, 10 May 2007.
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train
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001-93790
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ENG
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RUS
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CHAMBER
| 2,009
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CASE OF KLIMENKO AND OSTAPENKO v. RUSSIA
| 4
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Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
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Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
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5. The first applicant was born in 1948 and the second applicant in 1952. They live in Bataysk, the Rostov Region. 6. The applicants, Chernobyl victims, were in receipt of a monthly pension and a special “food allowance” from the State. They brought proceedings against the regional social security office (“the defendant”) claiming recalculation of the pension and the allowance in line with the increase of the minimum subsistence amount. 7. On the dates listed below the Bataysk Town Court of the Rostov Region granted the applicants’ claims and ordered the increase of the allowance and its subsequent index-linking. In re-calculating the amounts to be paid the court applied the multiplier of 1.92 reflecting the increase of the minimal subsistence amount in the Rostov Region. The judgments acquired legal force, as upheld on 16 April 2003 by the Rostov Regional Court. 8. On 13 May 2003 the defendant appealed to the Regional Court by way of supervisory review of the judgments. 9. On 30 June 2003 the judge rapporteur refused to initiate the supervisory review proceedings and to remit either of the two cases for examination on the merits to the Presidium of the Rostov Regional Court (“the Presidium”).The defendant complained to the President of the Regional Court about the judgments in the applicants’ favour and the judge rapporteur’s decision of 30 June 2003. 10. On 19 September 2003 the President of the Rostov Regional Court and on 24 October 2003 judge B. of the Regional Court allowed the defendant authority’s applications for supervisory review of the judgments in the first and the second applicants’ favour respectively and sent the cases for examination on the merits to the Presidium. These decisions referred to the arguments adduced by the defendant but offered no explanation as to the grounds for overruling the judge rapporteur’s decision of 30 June 2003. 11. On the dates listed in the Appendix the Presidium, by way of supervisory review, quashed the first instance and the appeal judgments on the ground that that the lower courts had applied an incorrect multiplier to the applicants’ cases, and remitted the cases for a fresh examination to the first instance court. 12. On 25 December 2003 the Bataysk Town Court examined the cases anew. The court, by a single judgment, established that the allowance due to the applicants should have been multiplied by 1.25 in 2002 and by 1.26 for 2003. The court restored in the favour of each applicant 34,500 Russian roubles (RUB) for the period between 1 January 2002 and 1 January 2004 and established that as of 1 January 2004 they were entitled to the monthly compensation in the amount of RUB 3,937.50, to be index-linked in future. The judgment was not appealed against and became final ten days later. 13. In 2004 and 2005 the second applicant brought further court proceedings for adjustment of the allowance. On 22 April 2004 and 12 September 2005 the Bataysk Town Court granted his claims and ordered the allowance to be increased by application of the multipliers of 1.16 and 1.08 respectively and to pay him arrears for the periods from 1 to 30 April 2004 and from 1 January to 30 June 2005. 14. As follows from the Government’s additional observations, on 31 October 2006 the second applicant applied for annulment of these two judgments and the award of 25 December 2003 due to discovery of new circumstances. On 15 February 2007 the request was granted by an unspecified court. The judgments of 25 December 2003, 22 April 2004 and 12 September 2005 were annulled on account of discovery of unspecified new circumstances, and the cases were remitted for a new examination. 15. According to the Government, on 13 March 2007 the Bataysk Town Court recovered in the second applicant’s favour RUB 142,027.04 of unpaid allowance in respect of the period from 1 July 2000 to 31 December 2006 and ordered further increase of the monthly payments up to RUB 8,670.75. The scope of the applicant’s claims was not specified by the Government and it is unclear whether these claims had been granted in full or in part. The judgment entered into force on 26 March 2007 and at some point was executed in full. 16. The parties did not submit copies of the judgments of 15 February 2007 and 13 March 2007, the second applicant’s statement of claims in the respective proceedings and his application dated 31 October 2006 for annulment of the earlier judgments. 17. For the relevant provisions on the supervisory-review proceedings contained in the Code of Civil Procedure of the Russian Federation see the Court’s judgment in the case of Sobelin and Others v. Russia (nos. 30672/03 et seq., § 34, 3 May 2007).
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train
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001-113300
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ENG
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GEO
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CHAMBER
| 2,012
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CASE OF KAKABADZE AND OTHERS v. GEORGIA
| 2
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Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 2 of Protocol No. 7 - Right of appeal in criminal matters (Article 2 of Protocol No. 7 - National law;Minor offences;Criminal offence);Non-pecuniary damage - award
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Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
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5. The first, second, third, fourth and fifth applicants were born in 1969, 1980, 1985, 1967 and 1984 respectively and live in Tbilisi. They are members of the Equality Institute, a Georgian non-governmental organisation established in February 2004 (“the NGO”). As part of its activities aimed at monitoring of the penal and law-enforcement authorities and promotion of the independence of the judiciary, the NGO held public press conferences and street demonstrations denouncing various serious human-rights abuses allegedly committed by the Ministry of the Interior and in Georgian prisons. 6. At around 2.20 p.m. on 29 June 2006 the applicants began a demonstration outside the Tbilisi Court of Appeal to express their support for Mr Shalva Ramishvili and Mr Davit Kokhreidze, owners of the 202 private television channel, who were on trial that day. The case of Ramishvili and Kokhreidze received considerable public attention at that time (for more details see Ramishvili and Kokhreidze v. Georgia, no. 1704/06, §§ 966, 27 January 2009). 7. As disclosed by the applicants’ written statements drafted on 4 and 5 July 2006 as a reminder of the exact circumstances surrounding the incident of 29 June 2006 (“the applicants’ written statements”), they entered the yard of the Tbilisi Court of Appeal through the main gates; the security guards noticed that one of the applicants was carrying a megaphone but did not object. The applicants stopped ten to twenty metres from the courthouse, and the first applicant, using the megaphone, began uttering the following slogans: “We should not have political prisoners in Georgia! ... We urge you to obey justice and not the private interests of a number of high officials! ... Give me justice or give me death! ...”. 8. Furthermore, taking the view that the existing situation concerning human rights in Georgia was similar to the terror unleashed by the Soviet State in the late 1930s, the first applicant disdainfully referred to the Minister of the Interior, Mr V.M., as “Lavrentiy Beria’s bastard”. According to the written statements of the fourth and fifth applicants, they also called for the immediate release of Mr Ramishvili and Mr Kokhreidze, as unlawfully detained, and urged the Tbilisi Court of Appeal “not to become an accomplice of the criminal activities of the [Minister of the Interior]”. 9. According to the applicants, nothing was displayed or addressed to the court which could be construed as contempt: this could be confirmed by independent eyewitnesses to the incident, as well as by the images filmed by a cameraman from the 202 television channel (see a description of the video recording submitted by the applicants in paragraphs 23-27 below). 10. The first applicant’s speech had lasted some three minutes when several uniformed court bailiffs approached the applicants and, allegedly without prior warning or explanation, restrained them by force. The applicants were then taken into the court-house and locked in the bailiffs’ duty room. 11. According to the applicants’ written statements, no record of their arrest was drawn up on the spot. In any event, they were not shown or asked to sign any such document. On the contrary, the bailiffs reassured the applicants that they were not formally under arrest, that it was a simple misunderstanding and that they would soon be released. 12. The case file, however, contained five separate records, on the arrest of each applicant. Those records indicated the name of the drafting bailiff as well as the name, date of birth, address and full serial number of the identification card of each of the applicants. The documents further stated that the applicants had been arrested at around 2.20 p.m. on the basis of section 76(3) § 1 (f) of the Courts of Common Jurisdiction Act of 13 June 1997 (“the Courts Act”). In particular, the offenders had “breached public order”, which took the form of “contempt of court, insults, disregard of the bailiffs’ lawful orders to stop the wrongdoing, resistance to the bailiffs, attempts to influence the court by actions and verbal expressions, impeding the administration of justice, and so on”. All the records contained an entry, made in the drafting bailiff’s handwriting indicating that the applicants had “refused to sign this record or to receive a copy thereof”. The President of the Tbilisi Court of Appeal and the police were immediately informed of the offence and of the applicants’ arrest. 13. According to the applicants, these records of their arrest were drafted and added to the file concerning their case ex post factum. 14. Having been confined in the duty room of the court-house in complete unawareness of the reasons for their detention for some three hours, the applicants were transferred by the police to an Interior Ministry remand centre; the case file contains an excerpt from the relevant prison log showing that the fourth applicant entered the remand centre at 5.45 p.m. 15. The case file also contained explanatory memos from three court bailiffs who had participated in the applicants’ arrest. Those memos were half-page handwritten documents containing similar phrases, and were addressed to the Chief of the Bailiff Service of the Tbilisi Court of Appeals. Thus, according to those documents, the applicants, “standing near the public entrance of the court at around 2.20 p.m.”, had started “demanding the release of political prisoners” and “insulting the court by their expressions and actions”. One of the bailiffs added in his memo that the applicants’ actions had amounted to an encroachment upon the court’s independence and impartiality, whilst another submitted that the wrongdoers had been trying to influence the court. All three bailiffs stated that, prior to resorting to the measure of arrest, they had requested the applicants to stop the disturbance. 16. When they were transferred to the remand centre the applicants learnt that they had been detained on the basis of a decision of 29 June 2006 issued by the President of the Tbilisi Court of Appeal. 17. As disclosed by the decision of 29 June 2006, a one-page document, the President of the Tbilisi Court of Appeal, Mrs E.T., sitting privately and without holding an oral hearing, decided, on the basis of the bailiffs’ written submissions alone, to detain the applicants for thirty days under Article 208 § 6(1) of the Code of Criminal Procedure (“the CCP”). Thus, she took note of the bailiffs’ version of the incident of 29 June 2006 (see paragraph 15 above), namely that “[the applicants], who were inside the court building, in its central entrance, were breaching public order, obstructing the normal functioning of the court and seeking to influence the court with respect to proceedings in a particular case”. Despite the bailiffs’ request that they stop the disturbance, the applicants persisted with their conduct, which took the form of “verbal expressions and actions”. The President concluded that the applicants had “breached public order, shown manifest and gross contempt towards the court and endangered the administration of justice.” 18. The operative part of the decision of 29 June 2006 indicated that no appeal lay against it, that the applicants were to serve their sentence in remand centre no. 2 of the Ministry of the Interior (see paragraph 16 above) and that the Tbilisi police department was responsible for its execution. 19. On 21 July 2006 the applicants, referring to the suspension of the operation of Article 208 § 7 of the CCP by the Constitutional Court’s decision of 20 July 2006 (see the Constitutional Court’s judgment of 15 December 2006 at paragraphs 42-47 below) and arguing that their detention was an administrative penalty, requested the Supreme Court of Georgia to examine their complaint against the decision of 29 June 2006 under Article 279 of the Code on Administrative Offences (“the CAO”). They complained that the President of the Tbilisi Court of Appeal had committed a manifest miscarriage of justice by punishing them under Article 208 of the CCP, which provision clearly envisaged liability only for acts committed inside court buildings; a video recording of the applicants’ demonstration was submitted to show that it had taken place in the yard of the Tbilisi Court of Appeal. Thus, the applicants argued that the above-mentioned provision could not be considered a foreseeable and therefore legitimate basis for their conviction and detention. They further complained that the President of the Tbilisi Court of Appeal had violated the principles of a fair trial by delivering her decision entirely on the basis of the one-sided account provided by the bailiffs. The applicants also complained that the President had chosen the severest sanction of those available under Article 208 of the CCP. 20. On 26 July 2006 a Supreme Court judge, Mr Z.M., examined, in absentia, the applicants’ complaint of 21 July 2006 and dismissed it. The date of that examination was not communicated to the applicants in advance. 21. As disclosed by the decision of 26 July 2006, Judge Z.M. first noted that the suspension of Article 208 § 7 of the CCP did not automatically entitle the applicants to lodge an appeal against their detention. However, acknowledging that their detention was, by its nature, an administrative penalty, he ruled that the complaint of 21 July 2006 against the penalty could be examined under Article 279 of the CAO. Judge Z.M. went on to criticise the applicants for abusing their right to freedom of expression. He found it established from the case materials that the applicants had truly exhibited “manifest and gross contempt” towards the Tbilisi Court of Appeal by committing those acts “inside the court building, namely in its central entrance hall”. In any event, the aim of Article 208 § 6(1) of the CCP was, in the opinion of Judge Z.M., to protect public order not only inside court-houses but also outside them, in adjacent premises. The President of the Court of Appeal had no other choice but to sanction the applicants under Article 208 § 6(1) of the CCP, since what was at stake in the given situation was “not the judge’s own interests but the authority of the court and the proper administration of justice”. In reply to the complaint that the President of the Court of Appeal had made her decision entirely on the basis of one-sided submissions, Judge Z.M. stated that all the evidence – the records of the applicants’ arrest and the explanatory notes – had been drafted and submitted by the bailiffs for consideration by the President in accordance with a procedure envisaged by law. Judge Z.M. also stated that the thirty days’ detention had been an appropriate punishment, given the gravity of the acts committed. 22. The period of the applicants’ detention expired and they were released on 28 July 2006. 23. The recording showed excerpts from a television programme prepared by the 202 channel concerning the incident of 29 June 2006. 24. The first scene briefly showed several uniformed bailiffs restraining some of the applicants in the yard of the Tbilisi Court of Appeal. The first applicant, holding a megaphone, was hustled by the bailiffs towards the central entrance of the court-house. At the end of the scene, a man’s hand was placed over the lens of the camera. 25. In a later episode of the programme, the President of the Tbilisi Court of Appeal, Mrs E.T., was shown at a press conference concerning the applicants’ arrest. She stated: “... five individuals, ... who have shown such direct and gross contempt towards the court and breached public order in the court... I will impose upon them, by my ruling, a form of detention for thirty days, and this will be another good example [of the fact] that respect towards courts and the maintenance of public order in court will be protected very strictly.” (“...ხუთ მონაწილეს ამ აქციის,... რომლებმაც ასეთი პირდაპირი და უხეში უპატივცემულობა გამოხატეს სასამართლოს მიმართ და დაარღვიეს წესრიგი სასამართლოში ... მე გამოვიყენებ ჩემი განკარგულებით ოცდაათდღიანი დაპატიმრების ფორმას მათ მიმართ და ეს იქნება კიდევ ერთხელ კარგი მაგალითი იმისათვის, რომ პატივისცემის გამოხატვა სასამართლოს მიმართ და სასამართლოში წესრიგის დაცვა იქნება ძალიან მკაცრად დაცული.”) 26. The commentator of the programme noted that, prior to taking office as President of the Tbilisi Court of Appeal, Mrs E.T. had served as deputy to Mr V.M., the Minister of the Interior. 27. The remaining scenes in the broadcast showed interviews with the applicants’ advocates and supporters, some of whom stated that the applicants could not be held liable under Article 208 of the CCP, because their actions had taken place outside the court building. 28. Section 76(3) § 1 listed court bailiffs’ rights and responsibilities: Section 76(3) “1. Bailiffs shall (a) ensure the safety of judges, parties to proceedings and witnesses; (b) maintain order inside the court-house and hearing rooms; (c) enforce the instructions of the President of the court and of the hearing judge concerning the maintenance of order; (d) protect the court-house; (e) ensure that hearing rooms are well prepared for the conduct of proceedings...; (f) prevent offences from being committed inside the court-house, identify offenders and, if necessary, arrest them for the purpose of handing them over to the police, and draft a written record on such arrests...; (g) exercise all other powers envisaged by law.” 29. Section 76(3) § 2 (a) gave bailiffs the right to resort to physical force, to “special equipment” and even to firearms in the exercise of their duties. Section 76(4) §§ 1 and 4 specified that the above-mentioned right could be exercised only if other less severe measures of constraint had been shown to be ineffective, and that bailiffs were obliged to issue a verbal warning to the persons concerned prior to resorting to force. 30. Article 208, on the basis of which the applicants were sanctioned by the decision of 29 June 2006, read as follows: Article 208: “Liability for breach of public order in court” “1. The President of the court shall ensure the maintenance of public order in the court, whilst the presiding judge shall be responsible for maintaining order during the hearing of cases... 2. A party to the proceedings, or any other person who has either breached public order during a hearing, or disregarded the presiding judge’s ruling or is in contempt of court, shall be fined and/or expelled from the courtroom. If the person expelled from the courtroom continues to breach such an order, the detention envisaged by this Article may be imposed upon him or her.... 6. If manifest and gross contempt of court has been shown, the judge presiding over the hearing may issue a decision to detain the offender for up to thirty days. Such a decision shall be enforced immediately....” 6(1). In the event of a breach of public order or contempt committed inside the court building, the President of the court shall be entitled to apply the measures envisaged by this Article against the offender. 7. So far as the current Article is concerned, the decisions of the presiding judge and of the President of the court shall be delivered by on-the-spot deliberations and without an oral hearing, and no appeal shall lie against them.” 31. Subsequent to the Constitutional Court judgments of 15 December 2006 (see paragraphs 42-47 below), Article 208 of the CCP was significantly revised on 29 December 2006. Thus, the newly added paragraph 8 of that provision explicitly gave the court bailiffs the power to arrest a person who had either “breached public order in the court, was in contempt, or had obstructed the normal functioning of the court”. Bailiffs were obliged to draw up a record of such arrests and to bring the offenders before the President of the relevant court within twenty-four hours. The President had further twentyfour hours to issue a decision on whether to punish the offender. Paragraphs 10 and 11 of the amended Article 208 further stated that proceedings concerning the imposition of detention on an offender should always be adversarial, and conducted at an oral hearing at which the offender would be given an opportunity to defend him or herself. Should the President decide to detain the offender, the latter was entitled to lodge an appeal against that decision with the higher court within the next forty-eight hours. 32. The Code was adopted on 15 December 1984, when Georgia was part of the Soviet Union. Subsequently, numerous amendments were introduced. At the material time the relevant provisions of this Code read as follows: Article 10: “The notion of an administrative offence” “An administrative offence is a wrongful action or omission, committed either deliberately or by negligence, which contravenes the State or public order, the rules on Governance, property or citizens’ rights and freedoms, and which attracts administrative liability. Administrative liability shall be imposed only in those cases where the offences envisaged under the present Code do not call for criminal liability in the light of the applicable legislation.” 33. Article 24 § 1 listed the forms of administrative penalties, of which administrative detention was the severest. Pursuant to Article 32 § 1, administrative detention could be imposed by a district (city) court, only as an exception, for certain types of administrative offences and for a period not exceeding thirty days. 34. Article 244 provided for measures of restraint in administrative proceedings, such as administrative arrest, search of the person or of objects, seizure of objects and of documents. Those measures, including arrest, could be used “in order to prevent an administrative offence..., to ensure a timely and proper examination of an administrative case, and to enforce any decision or ruling delivered in such a case”. 35. Article 246 contained an inclusive list of those authorities which were empowered to effectuate an administrative arrest. Court bailiffs were not among them. 36. Pursuant to Article 247, administrative arrest must not exceed three hours, unless specific statutes provided for longer terms “in cases of exceptional need”. 37. Articles 252, 263 and 264 contained procedural and substantive rules on the conduct of administrative proceedings, and were similar to those normally applicable to criminal proceedings in court. In particular, a person charged with an administrative offence to fundamental procedural rights such as the right to examine the case materials, to submit arguments and evidence and requests, to benefit from legal assistance during the examination of the case, to plead in his or her native language or to be assisted by an interpreter, and to appeal against procedural rulings. An administrative case was always to be examined in the presence of the charged person during an oral hearing; in absentia proceedings could take place only if that person had been duly summoned but had failed to appear. 38. Pursuant to Articles 271 and 279, no appeal lay, as a general rule, against a court decision convicting a person of an administrative offence and imposing a penalty. However, a final decision could be quashed by means of an extraordinary review. These provisions read as follows: Article 271 § 2: “The right to lodge an appeal...” “2. The city (district) court’s decision to impose an administrative penalty is final and not subject to an appeal in administrative proceedings, except for those cases where a law holds otherwise.” Article 279: “Review of a case...” “The administrative judge’s (court’s) decision concerning an administrative offence can be quashed or amended by the delivering judge (court) at a prosecutor’s request and, whether or not such a request has been lodged, by the President of the superior court...” 39. Article 413 of the Civil Code, explaining the notion of nonpecuniary damage, read as follows: Article 413 § 1: “Non-pecuniary damage” “1. Non-pecuniary damage, which amount should be reasonable and equitable, can be claimed exclusively in the situations explicitly envisaged by law. 2. An individual is entitled to request compensation for non-pecuniary damage caused in respect of damage to his or her health.” 40. Article 1005 of the Civil Code specified that State agencies were jointly liable for damage caused to a private party by intentional or negligent actions on the part of their officials, including such particular instances, the existence of which should first be established by a court, as unlawful conviction for a criminal or administrative offence or imposition of unlawful detention. 41. Subsequent to Article 423 § 1 (f) of the Code of Civil Procedure, a final judgment (decision) in a civil case could be reconsidered on the basis of newly discovered circumstances. Grounds for such reconsideration were, amongst others, factual circumstances or evidence which, had they been submitted to the domestic courts pending the original examination of the case, would have led to a different outcome. 42. The case originated in constitutional appeals by two advocates who had been detained under Article 208 § 6 of the CCP for breach of public order and contempt of court committed in courtrooms during the oral hearing of criminal cases. 43. In a decision of 20 July 2006, the Constitutional Court declared the constitutional appeals admissible for an examination on the merits, and suspended the operation of Article 208 § 7 of the CCP pending the proceedings. 44. In a judgment of 15 December 2006, the Constitutional Court abrogated Article 208 § 7 of the CCP as unconstitutional. 45. In its reasoning, the Constitutional Court, referring to the Court’s case-law, found that Article 6 § 1 of the Convention applied under its “criminal head” to the proceedings under Article 208 of the CCP. It further reasoned that those proceedings, which entitled the hearing judge to convict a person of a breach of public order/contempt of court by onthespot deliberations, without holding an oral hearing, negated the most fundamental safeguards of a fair trial, such as the right to equality of arms and adversarial proceedings, the right to have adequate time and facilities for the preparation of the defence, and so on. 46. The Constitutional Court stated that, by denying a person convicted under Article 208 of the CCP the right to lodge an appeal, paragraph 7 of that provision violated Article 42 § 1 of the Constitution and Article 2 of Protocol No. 7. In support of the latter finding, the Constitutional Court referred to the Court’s judgment in the case of Gurepka v. Ukraine (no. 61406/00, §§ 59-62, 6 September 2005). 47. In its judgment, the Constitutional Court also criticised the definition of the offence of contempt of court, as contained in paragraph 6 of Article 208 of the CCP, as vague. Notably: “the offence prescribed by the disputed provision is not clearly formulated... and the interpretation may be ambiguous due to the lack of specificity and vagueness of the provision.... Where the legislation introduces a sanction such as detention, an offender must clearly understand the nature of the offence for which he is subjected to detention and, on the other hand, the judge applying the law should be able to do so correctly and adequately. ... [I]n the Constitutional Court’s view, achieving and maintaining such important purposes as the protection of the authority of the courts and the smooth functioning of the justice system should not be carried out at the expense of the impairment of fundamental human rights.”
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train
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001-78623
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ENG
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ITA
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GRANDCHAMBER
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CASE OF MARKOVIC AND OTHERS v. ITALY
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Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
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Anatoly Kovler;Christos Rozakis;Egbert Myjer;Ireneu Cabral Barreto;Ján Šikuta;Jean-Paul Costa;John Hedigan;Karel Jungwiert;Lucius Caflisch;Luzius Wildhaber;Margarita Tsatsa-Nikolovska;Mindia Ugrekhelidze;Nicolas Bratza;Vladimiro Zagrebelsky
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9. The ten applicants are all citizens of Serbia and Montenegro, which was known at the time of the events in question as the Federal Republic of Yugoslavia (“the FRY”). The first two applicants, Dusan and Zoran Markovic, were born in 1924 and 1952 respectively, and applied to the Court on behalf of Dejan Markovic, deceased son of Dusan Markovic and brother of Zoran Markovic. The third and fourth applicants, Dusika and Vladimir Jontic, were born in 1948 and 1978 respectively, and applied to the Court on behalf of Slobodan Jontic, deceased husband of Dusika Jontic and father of Vladimir Jontic. The fifth applicant, Draga Jankovic, was born in 1947 and applied to the Court on behalf of her deceased husband, Milovan Jankovic. The sixth and seventh applicants, Mirjana and Slavica Stevanovic, were born in 1945 and 1974 respectively, and applied to the Court on behalf of Slavisa Stevanovic, deceased son of Mirjana Stevanovic and brother of Slavica Stevanovic. The eighth, ninth and tenth applicants, Milena, Obrad and Dejan Dragojevic, were born in 1953, 1946 and 1975 respectively, and applied to the Court on behalf of Dragorad Dragojevic, deceased son of Milena and Obrad Dragojevic and brother of Dejan Dragojevic. 10. The applicants lodged the present application to complain of the outcome of an action in damages which they had brought in the Italian courts in respect of an air strike against the FRY. 11. The facts of the case relate to the same events as those considered by the Court in its decision in the case of Banković and Others v. Belgium and Others ((dec.) [GC], no. 52207/99, ECHR 2001-XII). The facts in that case were summarised as follows: “6. The conflict in Kosovo between Serbian and Kosovar Albanian forces during 1998 and 1999 is well documented. Against the background of the escalating conflict, together with the growing concerns and unsuccessful diplomatic initiatives of the international community, the six-nation Contact Group (established in 1992 by the London Conference) met and agreed to convene negotiations between the parties to the conflict. 7. On 30 January 1999, and following a decision of its North Atlantic Council (NAC), the North Atlantic Treaty Organisation (NATO) announced air strikes on the territory of the FRY in the case of non-compliance with the demands of the international community. Negotiations consequently took place between the parties to the conflict from 6 to 23 February 1999 in Rambouillet and from 15 to 18 March 1999 in Paris. The resulting proposed peace agreement was signed by the Kosovar Albanian delegation but not by the Serbian delegation. 8. Considering that all efforts to achieve a negotiated political solution to the Kosovo crisis had failed, the NAC decided on, and on 23 March 1999 the Secretary General of NATO announced, the beginning of air strikes (Operation Allied Force) against the FRY. The air strikes lasted from 24 March to 8 June 1999. ... 9. Three television channels and four radio stations operated from the RTS facilities in Belgrade. The main production facilities were housed in three buildings at Takovska Street. The master control room was housed on the first floor of one of the buildings and was staffed mainly by technical staff. 10. On 23 April 1999, just after 2 a.m. approximately, one of the RTS buildings at Takovska Street was hit by a missile launched from a NATO forces’ aircraft. Two of the four floors of the building collapsed and the master control room was destroyed. 11. ... Twenty-four targets were hit in the FRY that night, including three in Belgrade.” 12. The partial collapse of the RTS building caused the deaths of sixteen people, including the five relatives of the applicants. 13. On 31 May 2000 the first four applicants brought an action in damages in the Rome District Court under Article 2043 of the Italian Civil Code. The other six applicants applied to be joined to the proceedings on 3 November 2000. 14. The applicants believed that civil liability for the deaths of their relatives lay with the Italian Prime Minister’s Office and Ministry of Defence and with the Command of NATO’s Allied Forces in Southern Europe (AFSOUTH). They argued that the Italian courts had jurisdiction to hear the case. In particular, on the basis of the wording of Article 6 of the Italian Criminal Code, they submitted that the unlawful act that had caused the alleged damage should be regarded as having been committed in Italy inasmuch as the military action had been organised on Italian territory and part of it had taken place there. They based this argument on the extent of Italy’s commitment – involving substantial political and logistical support – to the military mission in question. Specifically, Italy, unlike other NATO members, had provided the air bases from which the aircraft that had bombed Belgrade and the RTS had taken off. They also relied in support of their claim on Article 174 of the Wartime Military Criminal Code and on the London Convention of 1951 and the Protocol Additional to the Geneva Conventions. 15. The defendants argued that the Italian courts had no jurisdiction to hear the case. The proceedings against AFSOUTH were discontinued by the applicants. 16. The Prime Minister’s Office and the Ministry of Defence subsequently sought a preliminary ruling from the Court of Cassation on the question of jurisdiction (regolamento preventivo di giurisdizione) under Article 41 of the Italian Code of Civil Procedure. 17. In written submissions dated 16 November 2001, Assistant Principal State Counsel at the Court of Cassation argued that the application for a preliminary ruling should be declared inadmissible as it concerned the merits of the claim, not the issue of jurisdiction. He stated as follows: “The governmental bodies defending this claim have requested a preliminary ruling on the issue of jurisdiction, arguing that: (a) since the action is brought against the Italian State as a specific (unitary) subject of international law for acts performed in the exercise of its imperium (iure imperii), it cannot be brought in the Italian courts; (b) paragraph 5 of Article VIII of the London Convention of 19 June 1951, which Italy ratified by Law no. 1335 of 1955, does not provide any basis for the action either, as it applies to damage caused in the receiving State. The government seek to show through this jurisdictional issue that the Italian legal system does not contain any provision or principle capable of providing a basis for the alleged personal right [diritto soggettivo perfetto] or of guaranteeing it in the abstract. Accordingly, the position is that: (a) the government argue that the Italian State cannot be held liable for acts carried out in the exercise of its imperium; (b) in addition, they deny that the said London Convention can be used to determine the place where the acts which caused the alleged damage took place (it is not by accident that the applicant has cited the provisions of the Criminal Code referring to the place where the offence was committed). It follows that the questions thus raised go to the merits, not to the issue of jurisdiction (see judgment no. 903 of 17 December 1999 of the Court of Cassation, sitting as a full court). For these reasons, the Court of Cassation, sitting as a full court, is asked to declare the application inadmissible, with all the consequences which that entails in law.” 18. In a ruling (no. 8157) of 8 February 2002, which was deposited with the registry on 5 June 2002 and conveyed to the applicants on 11 June 2002, the Court of Cassation, sitting as a full court (Sezioni Unite), found that the Italian courts had no jurisdiction. It reasoned as follows: “... 2. The claim seeks to impute liability to the Italian State on the basis of an act of war, in particular the conduct of hostilities through aerial warfare. The choice of the means that will be used to conduct hostilities is an act of government. These are acts through which political functions are performed and the Constitution provides for them to be assigned to a constitutional body. The nature of such functions precludes any claim to a protected interest in relation thereto, so that the acts by which they are carried out may or may not have a specific content – see the judgments of the full court of 12 July 1968 (no. 2452), 17 October 1980 (no. 5583) and 8 January 1993 (no. 124). With respect to acts of this type, no court has the power to review the manner in which the function was performed. 3. While the purpose of the provisions of international agreements governing the conduct of hostilities – the Protocol Additional to the Geneva Conventions (Articles 35.2, 48, 49, 51, 52 and 57) and the European Convention on Human Rights (Articles 2 and 15 § 2) – is to protect civilians in the event of attack, they are rules of international law, and so also regulate relations between States. These same treaties lay down the procedure for finding a violation and the sanctions in the event of liability (Article 91 of the Protocol and Article 41 of the Convention); they also designate the international courts and tribunals with jurisdiction to make such a finding. However, the legislation implementing these rules in the Italian State does not contain any express provision enabling injured parties to seek reparation from the State for damage sustained as a result of a violation of the rules of international law. The notion that provisions to that effect may implicitly have been introduced into the system through the implementation of rules of international law is at odds with the converse principle that has been mentioned which holds that protected individual interests are no bar to carrying out functions of a political nature. Indeed, in order to enable reparation to be provided in the domestic system for loss sustained as a result of a violation of the ‘reasonable time’ requirement under Article 6 of the Convention on Human Rights, [the State] introduced appropriate legislation (Law no. 89 of 24 March 2001). 4. No entitlement to a review of the government’s decision concerning the conduct of hostilities with respect to the NATO aerial operations against the Federal Republic of Yugoslavia can be found in the London Convention of 1951. The fact that the aircraft used to bomb the Belgrade radio and television station were able to use bases situated on Italian territory constitutes but one element of the highly complex operation whose lawfulness it is sought to review and is not therefore relevant to the application of the rule laid down in paragraph 5 of Article VIII of the Convention, which on the contrary presupposes the commission of an act that is amenable to review.” 19. The Court of Cassation’s ruling brought to an end, ipso jure, the proceedings in the Rome District Court. 20. The relevant provisions of the Italian Constitution are as follows: “The Italian legal system shall comply with the generally recognised rules of international law. ...” “Everyone may bring legal proceedings to protect his or her rights and legitimate interests. ...” “Civil servants, other agents of the State and public entities shall be directly responsible, in accordance with the criminal, civil and administrative law, for acts committed in breach of rights. In connection with such acts, civil liability shall extend to the State and public entities. ...” “Judicial protection of rights and legitimate interests in the ordinary and administrative courts shall always lie against acts of the public administrative authorities. It may not be excluded or limited to extraordinary remedies or specific categories of act. The law shall specify which judicial bodies are empowered to set aside acts of the public authorities, in what cases and with what effects.” 21. Article 31 of Royal Decree no. 1024 of 26 June 1924 provides: “No appeal to the Consiglio di Stato, sitting in its judicial capacity, shall lie against acts or decisions of the government which involve the exercise of political power.” 22. Article 2043 of the Civil Code provides: “Any unlawful act which causes damage to another will render the perpetrator liable in damages under the civil law.” 23. Article 41 of the Code of Civil Procedure, which deals with the issue of jurisdiction, provides: “For so long as there has been no determination of the merits of the proceedings at first instance, any party may seek a ruling on a question of jurisdiction under Article 37 from the Court of Cassation, sitting as a full court. ...” Article 37 of the Code of Civil Procedure provides: “A ruling that an ordinary court has no jurisdiction because the case concerns a public authority or is within the province of a special court may be made at any time and at any level of jurisdiction, including by the court of its own motion.” 24. The relevant provisions of the Criminal Code provide: “Anyone who commits an offence on the territory of the State shall be punished in accordance with Italian law. The offence will be regarded as having been committed on the territory of the State if all or part of the act or omission at the origin of the offence or all or some of the consequences of such act or omission occurred there.” “Restitution and compensation for damage. The commission of an offence shall give rise to an obligation of restitution under the civil law [Articles 2043 et seq. of the Civil Code]. Any offence that causes pecuniary damage [Article 2056 of the Civil Code] or non-pecuniary damage [Article 2059 of the Civil Code] shall impose an obligation on the perpetrator and those accountable for his or her actions under the civil law [Article 2047 of the Civil Code] to make reparation.” 25. Article 174 of the Wartime Military Criminal Code reads as follows: “A commanding officer of a military force who, in order to inflict damage on the enemy, orders or authorises the use of a means or method of warfare that is prohibited by law or by international treaty or which is in any event contrary to the military code of honour shall be liable on conviction to a minimum of five years’ imprisonment unless the act concerned is a criminal offence under a specific statutory provision. If the act results in a massacre, the minimum term of imprisonment shall be ten years.” 26. In a judgment of 10 July 1992 (no. 124/1993), the Court of Cassation, sitting as a full court, established the rule that the courts had no jurisdiction to hear cases against the authorities relating to political acts. A trade union had brought an action against the Prime Minister, the Civil Service Ministry and the Ministry of State Education on the ground that the government had failed to comply with their undertakings. The Court of Cassation noted, inter alia, that such a failure could only engage the government’s political responsibility, but could not create a right. It ruled that the courts had no jurisdiction to hear the case after formulating the following principle: “Legislative action is a political act since it is the standard means of performing political and governmental functions. The governmental authority’s conduct in the present case was not, therefore, capable in law of causing individuals damage (whether to their personal rights or to their legitimate interests); it consequently escapes all judicial scrutiny.” 27. The Italian courts had in fact already examined this question in a number of earlier cases and had ruled that, as they were political in nature, the following acts escaped the scrutiny of the domestic courts: (i) a waiver of the right to exercise jurisdiction under Article VII of the Agreement of 1951 between the Parties to the North Atlantic Treaty regarding the Status of their Forces (Court of Cassation, Third Criminal Division, 21 March 1962, no. 1645, Kinardi and Others, Giust. Pen. [Criminal Justice], 1963, III, p. 80); (ii) the assignment of property belonging to Italian nationals under the London Convention of 1951 (Court of Cassation, sitting as a full court, 12 July 1968, no. 2452, De Langlade v. the Treasury, Rivista diritto internazionale [International Law Review], 1969, p. 583); (iii) a Transport Ministry decree suspending permission to transport goods to Austria (Rome District Court, 18 May 1993, Soc. S. and C. Transp. GmbH v. Ministry of Transport, Rivista diritto internazionale privato e processuale [Review of Private International Law and Procedure], 1995, p. 755); (iv) a decision by the Ministry of Employment appointing employees’ representatives as delegates to the International Labour Organisation (Lazio Regional Administrative Court, 20 August 1976, no. 492, CISNAL v. Ministry of Employment and Ministry of Foreign Affairs, Italian Yearbook of International Law, 1978-79, p. 184); (v) a declaration of war and treaty provisions relating to compensation for war damage (Lazio Regional Administrative Court (I), 28 January 1985, no. 106, Pestalozza v. the Treasury, Trib. Amm. Reg. [Regional Administrative Court Review], 1985, p. 381). 28. The full court of the Court of Cassation delivered a further judgment (no. 5044) on 11 March 2004. It concerned the jurisdiction of the Italian civil courts to hear claims for compensation for damage sustained by a person who had been captured by the German military in 1944 and deported to work for German industry. Germany had pleaded State immunity and the courts of first instance and appeal had held that they had no jurisdiction to make an order against it. The Court of Cassation carried out a very extensive examination of the international treaties on international crime, imprescriptibility, the international responsibility of States, immunity from jurisdiction and of the case-law of various international tribunals. In holding that the immunity plea failed and the Italian courts had to decide the claim, it stated inter alia: “... In a decision no. 8157 of 5 June 2002, this full court did indeed rule that acts performed by the State in the conduct of hostilities escape all scrutiny by the courts, as they are acts through which ‘political’ functions are carried out. The nature of these functions ‘precludes any claim to a protected interest in respect thereto, so that there may or may not be a specific content to the acts through which they are performed’. Pursuant to this principle, the Italian courts were held to have no jurisdiction to hear a claim against the Italian Prime Minister’s Office and the Italian Ministry of Defence for compensation for the destruction of a non-military objective during NATO air strikes against the Federal Republic of Yugoslavia or for the resultant civilian deaths. It is readily apparent, however, firstly, that the fact that the court cannot contest the manner in which the actions of the supreme head of the res publica are conducted does not prevent it from finding that a criminal offence has been committed or that there is related liability under the criminal or civil law (Articles 90 and 96 of the Constitution; section 15 of Constitutional Law no. 1 of 1953; and section 30 of Law no. 20 of 1962); secondly, by virtue of the principle of adaptation established by Article 10 § 1 of the Constitution, the ‘generally recognised’ principles of international law which govern the fundamental values constituted by the freedom and dignity of the human being and characterise the most serious assaults upon the integrity of those values as ‘international crimes’ have ‘automatically’ been integrated into our system and are entirely apt for use as a standard whereby the injustice of damage caused to others by intentional or negligent ‘acts’ may be gauged. It is evident, therefore, that the principles referred to in this decision cannot be taken into consideration in the instant case. ... 9.1 Granting immunity from jurisdiction to States who have been guilty of such wrongdoing is in manifest contradiction with the aforementioned normative rules because it constitutes an obstacle to the defence of values whose protection, like these norms and principles, must on the contrary be considered essential for the entire international community, even to the point of justifying forms of mandatory response in the most serious cases. Nor is there any doubt that the antinomy must be resolved by giving priority to the highest ranking norms, as the judges in the minority (eight to nine) stated in their dissenting opinion appended to the judgment in Al-Adsani [v. the United Kingdom [GC], no. 35763/97, ECHR 2001-XI], by precluding in such cases any claim by the State to immunity from suit in the foreign courts.” 29. In 1993 the Italian government decided to send a military expeditionary force to Somalia to perform peacekeeping operations. After the expeditionary force had returned to Italy, it was discovered that some of its members had engaged in the torture of Somali prisoners. Two members of the expedition were charged and given prison sentences. They were also ordered to pay compensation to the civil party. In judgment no. 28154 of 7 March 2002, the text of which was deposited with the registry on 10 July 2002, the Rome Civil Court ordered another Italian serviceman and the Ministry of Defence to make reparation for the damage sustained by the relatives of a civilian whom the serviceman had killed unlawfully. 30. The applicants relied in the domestic courts on the Protocol Additional of 8 June 1977 to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of International Armed Conflicts (Protocol I). The Protocol, which Italy ratified through Law no. 672 of 11 December 1985, contains, inter alia, the following provisions: “1. In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited. 2. It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering. 3. It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment. ...” “In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.” “1. ’Attacks’ means acts of violence against the adversary, whether in offence or in defence. 2. The provisions of this Protocol with respect to attacks apply to all attacks in whatever territory conducted, including the national territory belonging to a Party to the conflict but under the control of an adverse Party. 3. The provisions of this section apply to any land, air or sea warfare which may affect the civilian population, individual civilians or civilian objects on land. They further apply to all attacks from the sea or from the air against objectives on land but do not otherwise affect the rules of international law applicable in armed conflict at sea or in the air. 4. The provisions of this section are additional to the rules concerning humanitarian protection contained in the Fourth Convention, particularly in Part II thereof, and in other international agreements binding upon the High Contracting Parties, as well as to other rules of international law relating to the protection of civilians and civilian objects on land, at sea or in the air against the effects of hostilities.” “1. The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances. 2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. 3. Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities. 4. Indiscriminate attacks are prohibited. Indiscriminate attacks are: (a) those which are not directed at a specific military objective; (b) those which employ a method or means of combat which cannot be directed at a specific military objective; or (c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction. 5. Among others, the following types of attacks are to be considered as indiscriminate: (a) an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and (b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. 6. Attacks against the civilian population or civilians by way of reprisals are prohibited. 7. The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations. 8. Any violation of these prohibitions shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians, including the obligation to take the precautionary measures provided for in Article 57. ...” “1. Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2. 2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. 3. In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used. ...” “1. In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects. 2. With respect to attacks, the following precautions shall be taken: (a) those who plan or decide upon an attack shall: (i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them; (ii) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss or civilian life, injury to civilians and damage to civilian objects; (iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated; (b) an attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated; (c) effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit. 3. When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects. 4. In the conduct of military operations at sea or in the air, each Party to the conflict shall, in conformity with its rights and duties under the rules of international law applicable in armed conflict, take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects. 5. No provision of this Article may be construed as authorizing any attacks against the civilian population, civilians or civilian objects. ...” “A Party to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.” 31. The applicants also relied in the domestic courts on paragraph 5 of Article VIII of the London Convention of 19 June 1951 between the Parties to the North Atlantic Treaty regarding the Status of their Forces, which Italy ratified through Law no. 1335 of 1955. Article I defines certain terms as follows: “... (d) ’sending State’ means the Contracting Party to which the force belongs; (e) ’receiving State’ means the Contracting Party in the territory of which the force or civilian component is located, whether it be stationed there or passing in transit; ...” Article VIII provides, inter alia: “... 5. Claims (other than contractual claims and those to which paragraphs 6 or 7 of this Article apply) arising out of acts or omissions of members of a force or civilian component done in the performance of official duty, or out of any other act, omission or occurrence for which a force or civilian component is legally responsible, and causing damage in the territory of the receiving State to third parties, other than any of the Contracting Parties, shall be dealt with by the receiving State in accordance with the following provisions: (a) Claims shall be filed, considered and settled or adjudicated in accordance with the laws and regulations of the receiving State with respect to claims arising from the activities of its own armed forces. (b) The receiving State may settle any such claims, and payment of the amount agreed upon or determinated by adjudication shall be made by the receiving State in its currency. (c) Such payment, whether made pursuant to a settlement or to adjudication of the case by a competent tribunal of the receiving State, or the final adjudication by such a tribunal denying payment, shall be binding and conclusive upon the Contracting Parties. (d) Every claim paid by the receiving State shall be communicated to the sending States concerned together with full particulars and a proposed distribution in conformity with sub-paragraphs (e) (i), (ii) and (iii) below. In default of a reply within two months, the proposed distribution shall be regarded as accepted. (e) The cost incurred in satisfying claims pursuant to the preceding sub-paragraphs and paragraph 2 of this Article shall be distributed between the Contracting Parties, as follows: (i) Where one sending State alone is responsible, the amount awarded or adjudged shall be distributed in the proportion of 25 per cent chargeable to the receiving State and 75 per cent chargeable to the sending State. (ii) Where more than one State is responsible for the damage, the amount awarded or adjudged shall be distributed equally among them: however, if the receiving State is not one of the States responsible, its contribution shall be half that of each of the sending States. (iii) Where the damage was caused by the armed services of the Contracting Parties and it is not possible to attribute it specifically to one or more of those armed services, the amount awarded or adjudged shall be distributed equally among the Contracting Parties concerned: however, if the receiving State is not one of the States by whose armed services the damage was caused, its contribution shall be half that of each of the sending States concerned. (iv) Every half-year, a statement of the sums paid by the receiving State in the course of the half-yearly period in respect of every case regarding which the proposed distribution on a percentage basis has been accepted, shall be sent to the sending States concerned, together with a request for reimbursement. Such reimbursement shall be made within the shortest possible time, in the currency of the receiving State. (f) In cases where the application of the provisions of sub-paragraphs (b) and (e) of this paragraph would cause a Contracting Party serious hardship, it may request the North Atlantic Council to arrange a settlement of a different nature. (g) A member of a force or civilian component shall not be subject to any proceedings for the enforcement of any judgment given against him in the receiving State in a matter arising from the performance of his official duties. (h) Except in so far as sub-paragraph (e) of this paragraph applies to claims covered by paragraph 2 of this Article, the provisions of this paragraph shall not apply to any claim arising out of or in connexion with the navigation or operation of a ship or the loading, carriage, or discharge of a cargo, other than claims for death or personal injury to which paragraph 4 of this Article does not apply. 6. Claims against members of a force or civilian component arising out of tortious acts or omissions in the receiving State not done in the performance of official duty shall be dealt with in the following manner: (b) The report shall be delivered to the authorities of the sending State, who shall then decide without delay whether they will offer an ex gratia payment, and if so, of what amount. (c) If an offer of ex gratia payment is made, and accepted by the claimant in full satisfaction of his claim, the authorities of the sending State shall make the payment themselves and inform the authorities of the receiving State of their decision and of the sum paid. (d) Nothing in this paragraph shall affect the jurisdiction of the courts of the receiving State to entertain an action against a member of a force or of a civilian component unless and until there has been payment in full satisfaction of the claim. 7. Claims arising out of the unauthorized use of any vehicle of the armed services of a sending State shall be dealt with in accordance with paragraph 6 of this Article, except in so far as the force or civilian component is legally responsible. 8. If a dispute arises as to whether a tortious act or omission of a member of a force or civilian component was done in the performance of official duty or as to whether the use of any vehicle of the armed services of a sending State was unauthorized, the question shall be submitted to an arbitrator appointed in accordance with paragraph 2 (b) of this Article, whose decision on this point shall be final and conclusive. 9. The sending State shall not claim immunity from the jurisdiction of the courts of the receiving State for members of a force or civilian component in respect of the civil jurisdiction of the courts of the receiving State except to the extent provided in paragraph 5 (g) of this Article. 10. The authorities of the sending State and of the receiving State shall co-operate in the procurement of evidence for a fair hearing and disposal of claims in regard to which the Contracting Parties are concerned. ...”
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train
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001-86253
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ENG
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UKR
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CHAMBER
| 2,008
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CASE OF NADTOCHIY v. UKRAINE
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Partly inadmissible;Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient
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Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych
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4. The applicant, Mr Anatoliy Mykolayovych Nadtochiy, is a Ukrainian national who was born in 1977 and resides in the city of Chernigiv, Ukraine. 5. On 21 February 2000 the applicant brought a car (Audi-100) registered in Lithuania into the customs territory of Ukraine. When crossing the border he undertook an obligation to re-export the car before 21 February 2001. 6. On 25 September 2000 the applicant was arrested on suspicion of murder. 7. On 15 December 2000 the applicant was sentenced to eight years’ imprisonment for murder. 8. On 5 June 2002, in the applicant’s absence, the Chernigiv Customs Office drew up a report on an infringement of customs regulations due to the applicant’s failure to bring the above car outside the customs territory of Ukraine (section 113 of the Customs Code). In the report, the Customs Office indicated the applicant’s place of detention. 9. On 17 July 2002 the Customs Office sent the applicant’s case to the Novozavodsky District Court of Chernigiv. In the covering letter they requested the court to consider the issue of the applicant’s liability for a violation of section 112 of the Customs Code (loss of goods placed under customs control). 10. On 12 August 2002 the court considered the case in the applicant’s absence. The court found the applicant guilty of having failed to re-export the car and of having lost it in violation of section 112 of the Customs Code. The court ordered the confiscation of the vehicle, but given that the car’s location was unknown, it replaced the confiscation with payment of UAH 9,833.57 (about EUR 1,525.15) which corresponded to the value of the car, in accordance with section 149 § 3 of the Customs Code. In its decision, the court also indicated the applicant’s actual place of detention and noted that the applicant had not expressed a wish to be present at the court’s hearing, even though a notification about the time and place of the hearing had been sent to him. However, according to an information letter by the Deputy Head of the State Department for Enforcement of Sentences (Державний департамент України з питань виконання покарань) in reply to the Government Agent’s request, the applicant’s prison file contained no evidence that the applicant had received any summons to or notification about the above proceedings, while they were pending. 11. The applicant was informed about the above court decision by the prison administration, which received a copy of the decision on 23 August 2002. 12. On 29 December 2006 the applicant was released on probation. 13. The relevant provisions of the Code read as follows: “The legislation of the USSR and of the Ukrainian SSR on administrative offences consists of ..., this Code and other legislative acts of the Ukrainian SSR and decrees of the Council of Ministers of the Ukrainian SSR on administrative offences...” “(...) administrative liability for infringement of customs regulations shall be governed by the Customs Code ...” “An administrative offence is an unlawful, culpable (intentional or negligent) act or omission, which is prejudicial to the State or public order, property, citizens’ rights and freedoms, [and] established administrative procedures, and for which the law foresees administrative liability...” Administrative liability for the offences provided for by this Code arises in circumstances where no grounds to subject a person to criminal liability can be found.” Section 17. Circumstances that exclude administrative liability “A person who has acted in the case of urgent necessity ... shall not be subject to administrative liability.” Section 29. Confiscation of an item used to commit an administrative offence or one which is the direct subject-matter of such an offence “...Only an item forming part of the private property of the offender can be confiscated, unless the legislative acts of the USSR provide otherwise...” Section 38. Terms for imposing administrative penalties “Administrative penalties (адміністративні стягнення) can be imposed not later than 2 months after the offence has been committed, and in the case of a continuous offence – not later than two months after the offence has been discovered...” Section 268. Rights of a person against whom administrative proceedings have been brought “A person against whom administrative proceedings have been brought shall be entitled to: ... give explanations, present pieces of evidence, make motions... In the absence of the suspected person, the case can be considered only where there is information that he or she has received timely notification about the place and time of the hearing and if he or she has not requested an adjournment of the case...” 14. Part VII of the Code defined smuggling and further referred to the criminal law on liability. The provisions pertinent to the present case are contained in Part VIII of the Code and read, in so far as relevant, as follows: Part VIII Infringement of customs regulations. Proceedings in cases concerning infringement of customs regulations Chapter 1 Infringement of customs regulations and liability for such infringements Section 112 “The giving out of the items under the customs control without the permission of the customs body of Ukraine or the loss thereof shall incur the fine from the citizens in the amount up to a salary minimum, officially established at the date of that infringement, with confiscation of goods in question or without the latter; and from the officials - in the amount from two and a half till ten minimums officially established at the date of that infringement, with confiscation of goods in question or without the latter.” “Failure to re-export items brought into the customs territory of Ukraine on condition of an obligation to re-export them within the established time-limits ... shall result in imposition of a fine ... with confiscation of the items concerned...” Chapter 2. Proceedings in cases concerning infringement of customs regulations “Proceedings concerning infringement of customs regulations shall be conducted in accordance with the provisions of this Code or, where not regulated by it, under the relevant legislation ... on administrative offences (...)” Section 138. Presence of a person against whom administrative proceedings have been brought during consideration of the case concerning infringement of customs regulations. “A case concerning infringement of customs regulations shall be considered in the presence of the person against whom administrative proceedings have been brought. In the of the absence of the person against whom administrative proceedings have been brought, the case may be considered only when there is information about the timely notification of this person about the place and time of consideration of the case, but he or she has not submitted any petition for adjournment of the case or if there is information that at the time of consideration of the case the person is outside the territory of Ukraine, or when the person who committed the infringement of customs regulations has not been established, or in the case of a infringement of customs regulations via the sending of items by international postal correspondence.” Section 139. Terms for imposing administrative penalties “Administrative penalties (адміністративні стягнення) in the form of a warning or fine for infringement of customs regulations may be imposed not later than 2 months after the infringement of customs regulations, and in the case of a continuous infringement not later than two months after the infringement has been discovered... Confiscation of items that have been the direct subject-matter of an infringement of customs regulations ... shall be effected regardless of the time of the commission or discovery of the infringement of customs regulations.” Chapter 3. Execution of decisions of the customs authorities and courts concerning the imposition of an administrative penalty Section 149. Execution of the decision of the court (judge) concerning confiscation. “...If the items ... cannot be confiscated, the pecuniary equivalent of the value of the said items shall be collected from the persons who have infringed the customs regulations ...”
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train
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001-88318
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ENG
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GBR
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ADMISSIBILITY
| 2,008
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SOUTHWORTH v. THE UNITED KINGDOM
| 4
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Inadmissible
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David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
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The applicant, Mr Ralph Southworth, is a British national who was born in 1936 and lives in Lancashire. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s wife died on 7 October 1994. His claim for widows’ benefits was made on 9 November 2000 and was rejected on 13 November 2000 on the ground that he was not entitled to widows’ benefits because he was not a woman. He appealed and reconsideration took place on 24 November 2000 whereby the previous decision was upheld. This decision was confirmed by an appeal tribunal on 9 February 2001. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law. The applicant was not in receipt of child benefit at the time of his claim. The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.
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train
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001-58753
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ENG
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TUR
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CHAMBER
| 2,000
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CASE OF ŞENER v. TURKEY
| 3
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Violation of Art. 10;Violation of Art. 6-1;No violation of Art. 18;Non-pecuniary damage - financial award;Costs and expenses partial award
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Feyyaz Gölcüklü
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6. At the material time, the applicant was the owner and editor of a weekly review entitled Haberde Yorumda Gerçek (The Truth of News and Comments), published in Istanbul. 7. On 5 September 1993 the Istanbul State Security Court ordered the seizure of the twenty-third edition of the review, dated 4 September 1993, on the ground that an article therein entitled Aydın İtirafı contained separatist propaganda. The article read: “Bir ulusun toptan yok edilmesini izliyoruz. Bir soykırım izliyoruz ki, bugüne kadar başka örneği görülmemiş desek yanlış olmaz. Bir kirli savaşın dişlileri arasında inim inim inliyoruz. Savaşa karşı çıkmak gerektiğini bildiğimiz halde öfkemizi haykırmak, kirli savaş dişlilerini parçalamak yerine inim inim inliyoruz. Ağıt yakıyoruz sadece. Ölüme övgü dizmeye çalışıyoruz ölüm sessizliğinde. Havanın esintisinden, yaprak hışırtısından odalarımıza korku taşınıyor. Yüreklerimiz hop oturup hop kalkıyor. Ölüm korkusunda ölüme övgüler dizerken devlete teslim oluyoruz. Klima esintisinde sıcak çaylarımızı yudumlarken yürüttüğümüz hararetli tartışmalarımızda, kavgacı kesiliyoruz birden. Ulusların kaderlerini tayin hakkı diyoruz. Bu hakkın kullanılması önünde hiçbir engelin olmaması gerektiğinden söz ediyoruz. Kürt realitesinin tanınmasının önemli bir adım olduğunu açıklamaya çalışıyoruz. Ortadoğu’da savaşın nedeni Amerikan emperyalizmidir. Ve biz savaşa karşı çıkmanın insanlığın bir gereği olduğunu düşünüyoruz. Namaz dağları, Tendürek ve Nurhak ve daha niceleri bombalanıyor bu sırada. Kürdistan alev alev yanıyor. Soykırım bütün hızıyla sürüyor. Renkli ekranlardan Bosna’da yaşanan vahşeti izliyoruz. Öfkeleniyoruz birden. İnsan hakları savunucusu kesiliyoruz. Kimyasal silahlar kullanılıyor Nurhak dağlarında. “Taş üstünde taş bırakmayacağız” diyor askeri yetkili. Bir ulusu toptan yoketme isteklerindeki kararlılık çınlıyor kulaklarımızda. “Yalnız Güneydoğu’da değil batıda da operasyonların sürdürüleceğini, teröristlere yardımcı olanların haklarından gelineceğini” ekliyor konuşmasına ve tabii basının kulağını çekmeyi de ihmal etmiyor. İşte burada, bir kirli savaşın söylemlerimizdeki yenilgiye mahkum akibetini, savaşa karşı çıkmanın tek ama tek yolunun haklı savaşın yürütülmesi gerektiği doğrusunu unutuyoruz. Unutmak istiyoruz. Tendürek’e düşen bomba, yüreğimizde patlıyor. “Yazık” diyor içimizden biri. “Bunca kanın dökülmesi niye? Kürt ve Türk ulusları kardeş değil mi?” diye ekleyerek başlıyor bilinen konuşmasına. Hep bu konuşmayı bekliyormuşuz da, birbirimizden haberimiz yokmuş meğer. Her birimiz ayrı ayrı ve sanki farklı şeyler söylüyormuşuz gibi korkularımızı açığa vuruyoruz. Askeri yetkilinin hizmetinde kusur etmemeye itina gösteriyoruz. Türk şovenizminin asla onaylanmadığını ama, Kürt şovenizminin de onaylanamayacağını anlatıyoruz hep bir ağızdan. Ezilen ulusun şovenizminin olmayacağını bile bile lades yapmaya çalışıyoruz. Kürt meselesinin çözümünde barışçıl yolların denenmesi gerektiğini vaaz ediyor, çözümün ne olabileceğini tartışıyoruz, büyük pişkinlikle. Gazetelerimizin sayfalarını Sündüz yaylasını basan “teröristlerin”, kadınları, çocukları nasıl öldürdüklerini anlatan düzmece haberlerle dolduruyoruz. Basına verilen brifingden kamuoyunun bilgisi olmadığı bilgisizliğiyle köşe yazılarımızda Kürt ve Türk vatandaşların yüzyıllar boyunca kardeşçe bir arada yaşadığını, oysa “teröristlerin” emellerinin bu kardeşliği yıkmak olduğunu anlatıyoruz demokratça! Ve kara çalıyoruz özgürlük yürüyüşüne geçen Kürt köylüsünün tavrına. Biz aydın insanlarız. Demokratlığı elden bırakmayız. Ama yalandan kim ölmüş? Devlete hizmeti de esas alırız. İnsanları aptal biliriz. Onca yıl mürekkep yalamışlığımız bizi onlardan farklı kılar. Bu bir itiraftır. Biz aptalız.” <translation> “We are watching the wholesale extermination of a nation. We are watching a genocide on such a scale that it is not a mistake to call it unprecedented. We are groaning between the cogwheels of a dirty war. We know we should take a stand against the war, but instead of shouting out our anger and smashing the cogwheels, we are groaning. We only wail. We try to praise death in the deathly silence. Fear seeps into our rooms from the whisper of the breeze and the rustle of leaves. Our hearts jump in our throats. We surrender to the State while we praise death in fear of death. We suddenly become quarrelsome during our feverish discussions and while sipping our hot tea in the cool breeze of the air conditioner. We talk about the right to selfdetermination of nations. We are saying that there should be no impediment to the exercise of this right. We try to explain that recognition of Kurdish reality is an important step. The reason for war in the middle-east is American imperialism and we think that to stand up against this war is a requirement for being a human being. The Namaz mountains, the Tendürek, the Nurhak and many others are being bombed at this moment. Kurdistan is blazing. The genocide pounds on. We watch the terror in Bosnia on our colour TV screens. Suddenly we are full of anger. We become human rights advocates. Chemical weapons are being used on the Nurhak mountains. ‘We will not leave a stone standing’ says a military authority. Their determination to exterminate a whole nation echoes in our ears. ‘Operations will be conducted not only in the south-east but also in the west. We’ll deal with the people who help the terrorists’ he adds, and of course makes sure to tip off the press. Here we forget that in our own words a dirty war can only end in defeat. We [also] forget the axiom that the only way to oppose a war is to wage a just war. We want to forget it. The bomb falling on Tendürek explodes in our hearts. ‘What a pity’ says one of us. ‘Why shed so much blood? Aren’t Kurdish and Turkish nations brothers?’ And he begins his usual speech. We seem to have been waiting for that speech all the time, but we were not aware of one another. We each confess our fears as if we are saying different things. We take great care to serve the army officer faultlessly. We chorus that we have never approved of Turkish chauvinism but cannot approve of Kurdish chauvinism either. We turn a blind eye to the fact that an oppressed nation cannot be chauvinistic. We brazenly preach the necessity of trying peaceful methods to resolve the Kurdish problem and discuss what the solution might be. We fill the pages of our newspapers with bogus news of the terrorists’ raid on the Sündüz plateau and details of how they killed women and children. Oblivious of the fact that the public at large knows nothing of the briefing given to the press, we democratically explain in our newspaper columns that Kurdish and Turkish citizens have lived together in brotherhood for centuries and that the terrorists’ aim is to undermine that brotherhood. And we denigrate the attitude of the Kurdish peasants who started a freedom march. We are intellectuals. We shall not give up the democrat’s way of life. But who ever died of a lie? We also make it our rule to serve the State. We consider people stupid. Our many years of ink-licking make us different from them. This is a confession. We are stupid.” 8. In an indictment dated 29 September 1993 the Public Prosecutor at the Istanbul State Security (İstanbul Devlet Güvenlik Mahkemesi) charged the applicant with having disseminated propaganda against the indivisibility of the State by publishing the above article. The charges were brought under section 8 of the Prevention of Terrorism Act 1991 (hereinafter “the 1991 Act”, see paragraph 18 below). 9. In the proceedings before the State Security Court, the applicant denied the charges. She pleaded that the article did not contain separatist propaganda. She alleged that the institution of criminal proceedings against her, as the owner and the responsible editor, was aimed at punishing the review since no investigation was opened against the author of the impugned article whose picture appeared above it. The applicant referred to Article 10 of the Convention on Human Rights and argued that section 8 of the 1991 Act restricted her right to freedom of expression in contravention of both the Turkish Constitution and the Convention. 10. In a judgment dated 5 July 1994 the Istanbul State Security Court, composed of three judges including a military judge, found the applicant guilty of an offence under section 8 § 1 of the 1991 Act. The court sentenced the applicant to six months’ imprisonment and a fine of 50,000,000 Turkish liras (“TRL”), to be paid in ten monthly instalments. It also ordered confiscation of the offending publication. 11. In its reasoning, the court held that the impugned article had referred to a certain part of Turkish territory as “Kurdistan”, had asserted that people living there were Kurdish citizens, that the Kurdish nation wanted to be exterminated, that genocide had taken place, that the territory defined as “Kurdistan” had been bombed and burned and that chemical weapons had been used. On these grounds, the court found that the article, as a whole, disseminated propaganda against the indivisibility of the State. 12. The applicant appealed against her conviction. On 30 November 1994 the Court of Cassation dismissed her appeal. It upheld the Istanbul State Security Court’s assessment of the evidence and its reasons for rejecting the applicant’s defence. On 2 January 1995 the judgment was served on the applicant. 13. Following the amendments made by Law no. 4126 of 27 October 1995 to the 1991 Act (see paragraph 19 below); the Istanbul State Security Court ex officio re-examined the applicant’s case. On 8 March 1996 the court imposed the same sentence on the applicant. The applicant appealed. 14. On 10 June 1997 the Court of Cassation quashed the judgment of 8 March 1996 on the ground that the Istanbul State Security Court had not commuted the applicant’s sentence of imprisonment to a fine. 15. On 25 September 1997 the Istanbul State Security Court decided to defer the imposition of a final sentence pursuant to section 1 of Law no. 4304 of 14 July 1997. The court held, under section 2 of the same law, that the criminal proceedings against the applicant would be suspended and a final sentence imposed should the applicant be convicted of a further intentional offence in her capacity as an editor within three years of this decision. 16. On 17 November 1995 the Istanbul State Security Court also found the author of the impugned article, Erhan Altun, guilty of an offence under section 8 § 1 of the 1991 Act. It sentenced him to 1 year, 1 month and 10 days’ imprisonment and a fine of 111,111,110 TRL. However, the court suspended the author’s sentence taking into account his good conduct in the past, the likelihood that he would not commit any further offence and the fact that he was not a recidivist. 17. A full description of the relevant domestic law may be found in the Sürek (No. 1) v. Turkey judgment ([GC], no. 26682/95, §§ 23-36, ECHR 1999-IV). 18. Section 8 of the Prevention of Terrorism Act 1991 (Law no. 3713 of 12 April 1991) creates the offence of undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation through written and spoken propaganda, meetings, assemblies and demonstrations, irrespective of the methods used and the intention. Any person who engages in such an activity may be sentenced to imprisonment or a fine, which for a press editor nowadays may be up to 2 years’ imprisonment and a fine of up to three hundred million Turkish lira. 19. Law no. 4126 of 27 October 1995 amended the Prevention of Terrorism Act 1991 to require the re-examination of the cases of persons convicted under the aforementioned Section 8 with a view to imposing substitute penalties or measures to imprisonment. Editors who had been convicted before 12 July 1997 of a Section 8 offence were later entitled to a suspended sentence for up to three years, provided that no further offences were committed, pursuant to Law no. 4304 of 14 August 1997. 20. Article 138 of the Constitution requires all judges to perform their duties independently. State Security Courts were established by Article 143 of the Constitution to try offences “against the territorial integrity of the State or the indivisible unity of the nation or against the free democratic system of government, and offences which directly affect the State’s internal or external security.” 21. According to Sections 5 and 6 of Law no. 2845 on the creation and rules of procedure of the State Security Court, such courts shall be composed of a president, two other regular members and two substitute members, appointed for four-year renewable periods. At the material time, one regular member and one substitute were military judges of the first rank. 22. Appeals lie to the Court of Cassation against State Security Court decisions. 23. The careers of military judges, according to Section 7 of the Military Legal Service Act (Law no. 357), depend on assessments by the Minister of State in the Ministry of Defence, or the Minister of Defence. Section 8 of that Act provides that military judges are to be appointed “by a committee composed of the personnel director and the legal adviser of the General Staff, the personnel director and the legal adviser attached to the staff of the arm in which the person concerned is serving and the Director of Military Judicial Affairs at the Ministry of Defence… .” It is an offence under Article 112 of the Military Code for a public official to attempt to influence the performance by a military judge in the exercise of his judicial functions. Military judges are subject to officer salary scales and discipline by the Minister of Defence (Sections 18 and 29). Career disputes concerning military judges are ultimately determined by the Supreme Military Administrative Court (Section 22 of Law no. 1602 of 4 July 1972 on the Supreme Military Administrative Court). 24. Amendments made by Law no. 4388 of 18 June 1999 and Law no. 4390 of 22 June 1999 removed military judges from the bench of the State Security Courts. 25. The applicant alleged that the authorities had unjustifiably interfered with her right to freedom of expression guaranteed by Article 10 of the Convention, which provides: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 26. The Government maintained that the interference with the applicant’s right to freedom of expression was justified under the provisions of the second paragraph of Article 10. However, the Commission accepted the applicant’s allegation. 27. The Court notes that it is clear and undisputed that there has been an interference with the applicant’s right to freedom of expression on account of her conviction and sentence under section 8 of the Prevention of Terrorism Act 1991 (the “1991 Act”). 28. This interference would contravene Article 10 of the Convention unless it was “prescribed by law”, pursued one or more of the legitimate aims referred to in paragraph 2 of Article 10, and was “necessary in a democratic society” for achieving such aim or aims. The Court will examine each of these criteria in turn. 29. The applicant did not comment on whether this requirement had been respected. 30. The Government maintained that the measures taken against the applicant were based on section 8 of the 1991 Act. 31. The Commission agreed with the Government and found that the interference was prescribed by law. 32. The Court, like the Commission, finds that since the applicant’s conviction was based on section 8 of the 1991 Act the resultant interference with her freedom of expression could be regarded as “prescribed by law”, all the more as the applicant has not disputed this (see, in this connection, Sürek (No. 1) v. Turkey [GC], no. 26682/95, § 48, ECHR 1999-IV). 33. The applicant did not express a view on this point. 34. The Government contended that the aim of the interference in issue had been to maintain “national security” and “public safety”. The Commission accepted this view. 35. The Court considers that, having regard to the sensitivity of the security situation in south-east Turkey (see the above-mentioned Sürek (No.1) v. Turkey judgment, § 52) and to the need for the authorities to be alert to acts capable of fuelling additional violence, the measures taken against the applicant can be said to have been in furtherance of certain of the aims mentioned by the Government, namely the protection of national security and public safety. This is certainly true where, as with the situation in southeast Turkey at the time of the circumstances of this case, the separatist movement had recourse to methods which relied on the use of violence. 36. The applicant pleaded that she should not have been punished for an article which she had not written. She further contended that the impugned article praised democracy and human rights and suggested that intellectuals should be more courageous in defending the latter. She maintained that the article did not advocate recourse to terrorism and violence but, on the contrary, it criticised the waging of terrorism against people. In the applicant’s submission the measures taken against her amounted to an unjustified and disproportionate interference with her Article 10 right. 37. The Government asserted that the applicant disseminated separatist propaganda since the article in issue encouraged terrorist violence against the State. In support of their assertion the Government highlighted certain extracts from the article and contended that the phrase, “we forget the axiom that the only way to oppose a war is to wage a just war” was a clear incitement and encouragement to violence. In the Government’s submission, the author criticised intellectuals for defining “innocent Kurdish peasants” as “terrorists” and denigrating their march to freedom. In the Government’s opinion, the message which the article conveyed was that the only means for resolving the Kurdish problem was the maintenance of terrorist activities against the State, and that intellectuals should give the necessary support to such activities. The Government argued that, in the context of a virulent terrorism campaign, the applicant should have refrained from disseminating propaganda aimed at supporting terrorist violence. They further submitted that the applicant had rightly been convicted under section 8 of the 1991 Act and that the measures taken against her properly fell within the authorities’ margin of appreciation in this area. The interference was accordingly justified under Article 10 § 2 of the Convention. The Government finally pointed out that the imposition of the final sentence on the applicant had been suspended, following the enactment of Law no. 4304 of 14 August 1997, which aimed at providing for more lenient sanctions for offences committed through the medium of the press. 38. The Commission noted that the incriminated publication was an article by an intellectual whose statements contained sharp criticism of the policy and action of Turkey with regard to its population of Kurdish origin. The author expressed his view on the Kurdish question and did not associate himself with the use of violence in the context of the Kurdish separatist movement. In the Commission’s view, the measures taken against the applicant amounted to a kind of censorship, which was likely to discourage others from publishing similar opinions in the future. On this basis, the Commission found that there had been a violation of Article 10 of the Convention. 39. The Court recalls that in its Zana v. Turkey judgment of 25 November 1997 (Reports of Judgments and Decisions 1997-VII, pp. 254748, § 51) and the above-mentioned Sürek (No.1) v. Turkey judgment (cited above, § 58), it summarised the basic principles established in its case-law concerning Article 10 of the Convention: (i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly. (ii) The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10. (iii) In exercising its supervisory jurisdiction, the Court must look at the interference in the light of the case as a whole, including the content of the impugned statements and the context in which they were made. In particular, it must determine whether the interference in issue was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. The Court notes in this connection that the nature and severity of the penalties imposed are also factors to be taken into account when assessing the proportionality of the interference (see the Ceylan v. Turkey judgment [GC], no. 23556/94, § 49, ECHR 1999-IV). In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts. 40. The Court further observes that in the above-mentioned Sürek (No. 1) v. Turkey judgment (§ 61) it reiterated that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on questions of public interest. Furthermore, the limits of permissible criticism are wider with regard to the government than in relation to a private citizen, or even a politician. In a democratic system the actions or omissions of the government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of public opinion. Moreover, the dominant position which a government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries. Nevertheless, it certainly remains open to the competent State authorities to adopt, in their capacity as guarantors of public order, measures, even of a criminal-law nature, intended to react appropriately and without excess to such remarks (see the İncal v. Turkey judgment of 9 June 1998, Reports 1998-IV, p. 1567, § 54). Finally, where such remarks incite people to violence, the State authorities enjoy a wider margin of appreciation when examining the need for an interference with freedom of expression. 41. Since the applicant was convicted of disseminating separatist propaganda through the review of which she was the editor, the impugned interference must also be seen in the context of the essential role of the press in ensuring the proper functioning of a political democracy (see among many other authorities, the Lingens v. Austria judgment of 8 July 1986, Series A, no. 103, p. 26, § 41, and the abovementioned Sürek (No. 1) judgment, § 59). While the press must not overstep the bounds set, inter alia, for the protection of vital State interests, such as national security or territorial integrity, against the threat of violence or the prevention of disorder or crime, it is nevertheless incumbent on the press to impart information and ideas on political issues, including divisive ones. Not only has the press the task of imparting such information and ideas, the public has a right to receive them. Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders (see the abovementioned Lingens judgment, p. 26 §§, 41-42). 42. The Court stresses that the “duties and responsibilities” which accompany the exercise of the right to freedom of expression by media professionals assume special significance in situations of conflict and tension. Particular caution is called for when consideration is being given to the publication of views which contain incitement to violence against the State lest the media become a vehicle for the dissemination of hate speech and the promotion of violence. At the same time, where such views cannot be so categorised, Contracting States cannot, with reference to the protection of territorial integrity or national security or the prevention of crime or disorder, restrict the right of the public to be informed of them by bringing the weight of the criminal law to bear on the media (see the Erdoğdu and İnce v. Turkey [GC], no. 25067/94, § 54, ECHR 1999-IV). 43. The Court takes into account, furthermore, the background to cases submitted to it, particularly problems linked to the prevention of terrorism (see Karataş v. Turkey [GC], no. 23168/94, § 51, ECHR 1999-IV). On that point, it takes note of the Turkish authorities’ concern about the dissemination of views which they consider might exacerbate the serious disturbances that have been going on in Turkey for some fifteen years. 44. The Court notes that the applicant’s review published an article which had been written by an intellectual who had expressed his views on the Kurdish problem. The impugned article contained a sharp criticism of the Government’s policy and of the action of their security forces with regard to the population of Kurdish origin. While alleging that intellectuals and the Turkish press are denigrating the “Kurdish peasants’ freedom march”, the author criticised their overall view of the Kurdish problem. The author further suggested that the Kurdish reality should be recognised and peaceful methods tried in order to resolve the Kurdish problem instead of having recourse to military action. He regretted the shedding of blood in the course of armed conflict between Kurds and Turks, since he considered them brother nations. He also expressed his disapproval of all types of chauvinism, including Turkish and Kurdish forms. 45. The Court notes in addition that, although certain phrases seem aggressive in tone, such as the one highlighted by the Government, the article taken as a whole does not glorify violence. Nor does it incite people to hatred, revenge, recrimination or armed resistance. On the contrary, the article is an intellectual analysis of the Kurdish problem which calls for an end to the armed conflict. In the Court’s view these are the essential factors which should be considered (see the Ceylan v. Turkey judgment, cited above, § 36). Furthermore, the Court observes that the applicant was convicted by the Istanbul State Security Court not for incitement to violence, but for disseminating separatist propaganda by referring to a particular region of Turkey as “Kurdistan” and alleging that the population of Kurdish origin living in that region was subjected to oppression. In this regard, the Court considers that the domestic authorities in the instant case failed to give sufficient weight to the public’s right to be informed of a different perspective on the situation in south-east Turkey, irrespective of how unpalatable that perspective may be for them. As noted above, the views expressed in the incriminated article cannot be read as an incitement to violence, nor could they be construed as liable to incite violence. That being so, the reasons given by the Istanbul State Security Court for convicting the applicant, although relevant, cannot be considered sufficient to justify the interference with her right to freedom of expression. 46. The Court also observes that, notwithstanding the fact that the imposition of a final sentence on the applicant was suspended, she was nevertheless faced with the threat of a heavy penalty (see the Erdoğdu and İnce v. Turkey judgment, cited above, § 53). For the Court, a decision or measure favourable to an applicant is not sufficient in principle to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see the Öztürk v. Turkey judgment [GC], no. 22479/93, § 73, ECHR 1999-VI). In the instant case, however, the Istanbul State Security Court suspended the imposition of a final sentence on the applicant on condition that she did not commit any further offence as an editor within three years of its decision (see paragraph 15 above). If the applicant fails to comply with that condition, she will automatically be sentenced for the original offence. In other words, the decision in question did not remove her status as a “victim”. On the contrary, the conditional suspended sentence had the effect of restricting the applicant’s work as an editor and reducing her ability to offer the public views which have their place in a public debate whose existence cannot be denied (see, Erdoğdu v. Turkey, no. 25723/94, § 72, to be published in ECHR 2000; see also, mutatis mutandis, the Hertel v. Switzerland judgment of 25 August 1998, Reports 1998-VI, p. 2331, § 50). 47. Having regard to the above considerations, the applicant’s conviction was disproportionate to the aims pursued and, accordingly, not “necessary in a democratic society”. There has therefore been a violation of Article 10 of the Convention. 48. The applicant complained that the presence of a military judge on the bench of the Istanbul State Security Court which tried and convicted her meant that she was denied a fair hearing, in breach of Article 6 § 1 of the Convention, the relevant part of which provides: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law...” 49. The Government contested that allegation whereas the Commission accepted it. 50. In the applicant’s submission, under the rules applicable at the time, the military judges appointed to the State Security Courts, such as the Istanbul State Security Court, were dependent on the Executive and the army as regards their appointment and careers. Such ties made it impossible for military judges to discharge their functions on the bench in an independent and impartial manner. The applicant further stressed that the independence and impartiality of military judges, and hence of the courts on which they sat, were compromised since these judges were unable to take a position which might be contradictory to the views of their commanding officers. The applicant stated that these considerations impaired the independence and impartiality of the Istanbul State Security Court and prevented her from receiving a fair hearing, in violation of Article 6 § 1. 51. The Government replied that the rules then in force governing the appointment of military judges to the State Security Courts and the guarantees which they enjoyed in the performance of their judicial functions on the bench were such as to ensure that these courts fully complied with the requirements of independence and impartiality within the meaning of Article 6 § 1. The Government disputed the applicant’s argument that military judges were accountable to their superior officers. In the first place, it was an offence under Article 112 of the Military Code for a public official to attempt to influence the performance by a military judge of his judicial functions (see paragraph 23 above). Secondly, the career assessments of military judges relate only to their non-judicial duties. Military judges have access to their assessment reports and are able to challenge their content before the Supreme Military Administrative Court (see paragraph 23 above). When acting in a judicial capacity, a military judge is assessed in exactly the same manner as a civilian judge. 52. The Government added that the fact that a military judge had sat in the State Security Court had not impaired the fairness of the applicant’s trial. Neither the military judge’s hierarchical superiors, nor the public authorities which had appointed him to the court had any interest in the proceedings or in the outcome of the case. The Government also impressed upon the Court the need to have particular regard to the security context in which the decision to establish State Security Courts was taken, pursuant to Article 143 of the Constitution. In view of the experience of the armed forces in the antiterrorism campaign, the authorities had considered it necessary to strengthen these courts by including a military judge in order to provide them with the necessary expertise and knowledge to deal with threats to the security and integrity of the State. 53. The Government further submitted that, by Law no. 4388 of 18 June 1999 and Law no. 4390 of 22 June 1999, amendments had been made to remove military judges from the bench of the State Security Courts with a view to complying with the requirements of the Convention. The Government stated that State Security Courts are currently composed of civilian judges only. 54. The Commission concluded that the Istanbul State Security Court could not be regarded as an independent and impartial tribunal for the purposes of Article 6 § 1 of the Convention. The Commission referred in this respect to the İncal v. Turkey judgment of 9 June 1998 (Reports 1998IV) and the reasons supporting that judgment. 55. The Court takes note of the changes made to the State Security Court system by virtue of Law no. 4388 of 18 June 1999 and Law no. 4390 of 22 June 1999. However, for the purposes of the instant case it must confine its consideration to the legislation then in force and to the composition of the Istanbul State Security Court which tried and convicted the applicant. 56. The Court reiterates that in its above-mentioned İncal v. Turkey judgment of 9 June 1998 (p. 1547) and in its Çıraklar v. Turkey judgment of 28 October 1998 (Reports 1998-VII, p. 3071), it had to address arguments similar to those raised by the Government in the instant case. In those judgments the Court noted, on the one hand, that the status of military judges sitting as members of State Security Courts did provide some guarantees of independence and impartiality (see the above-mentioned İncal judgment, p. 1571, § 65). On the other hand, the Court found that certain aspects of these judges’ status made their independence and impartiality questionable (ibid. § 68): for example, the fact that they are servicemen who still belong to the army, which in turn takes its orders from the Executive; the fact that they remain subject to military discipline; and the fact that decisions pertaining to their appointment are to a great extent taken by the administrative authorities and the army (see paragraph 23 above). The applicant mentioned some of these shortcomings in her observations. 57. As in its İncal judgment, the Court considers that its task is not to determine in abstracto the necessity for the establishment of State Security Courts in the light of the justifications advanced by the Government. Its task is to ascertain whether the manner in which the Istanbul State Security Court functioned at the material time infringed the applicant’s right to a fair hearing, in particular whether, viewed objectively, she had a legitimate reason to fear that the court which tried her lacked independence and impartiality (see the abovementioned Incal judgment, p. 1572, § 70, and the above-mentioned Çıraklar judgment, p. 3072, § 38). As to that question, the Court sees no reason to reach a conclusion different from that in the cases of MM. Incal and Çıraklar, both of whom, like the present applicant, were civilians. It is understandable that the applicant - prosecuted in a State Security Court for disseminating propaganda aimed at undermining the national security of the State and public safety - should have been apprehensive about being tried by a bench which included a regular army officer and member of the Military Legal Service. On that account she could legitimately fear that the Istanbul State Security Court might allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case. In other words, the applicant’s fears as to that court’s lack of independence and impartiality can be regarded as objectively justified. The proceedings in the Court of Cassation were not able to dispel these fears since that court did not have full jurisdiction (see the abovementioned Incal judgment, p.1573, § 72 in fine). 58. For these reasons the Court finds that there has been a breach of Article 6 § 1. 59. The applicant alleged that the restrictions on her right to freedom of expression, applied pursuant to section 8 of the Prevention of Terrorism Act 1991, were inconsistent with the legitimate aims set out in Article 10 § 2 and were thus contrary to Article 18 of the Convention, which provides: “The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.” 60. The Government did not address these allegations in their memorial. 61. The Commission found that the restrictions which were applied to the applicant’s right to freedom of expression were consistent with the legitimate aims contained in Article 10 § 2 of the Convention. Accordingly, there had been no violation of Article 18. 62. For its part, the Court does not see any reason for departing from the opinion of the Commission. It considers, therefore, that there has been no violation of Article 18 of the Convention. 63. The applicant sought just satisfaction under Article 41 of the Convention, which provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 64. The applicant did not seek reparation for pecuniary damage but claimed FRF 30,000 in respect of non-pecuniary damage. She alleged that she had to leave her country for Germany on account of the criminal proceedings against her, and was forced to live there as a refugee. 65. The Government did not comment on the applicant’s claim. 66. The Court considers that the applicant must have suffered a certain amount of distress, having regard to the circumstances of her prosecution, trial and conviction. Deciding on an equitable basis, it awards her the sum of FRF 30,000 which she claimed. 67. The applicant also claimed the sum of FRF 20,000 for her costs and expenses, comprising of FRF 5,000 for translations, postage fees and stationery, and FRF 15,000 for her lawyer’s fees. She did not supply any particulars in support of her claims. 68. The Government expressed no opinion on the claim. 69. In view of the lack of substantiation of the claim, offset by the fact that the applicant clearly incurred some expenses, the Court considers it reasonable to award the applicant FRF 10,000 by way of reimbursement of her costs and expenses. 70. According to the information available to the Court, the statutory rate of interest applicable in France at the date of adoption of the present judgment is 2.74 % per annum.
| 1
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train
|
001-61090
|
ENG
|
HRV
|
CHAMBER
| 2,003
|
CASE OF SOC v. CROATIA
| 3
|
Preliminary objection partially accepted (non-exhaustion of domestic remedies);Preliminary objection partially dismissed (non-exhaustion of domestic remedies);No violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
|
Christos Rozakis
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9. On 27 January 1994 the applicant filed with the Dubrovnik Municipal Court (Općinski sud u Dubrovniku) an action against R.R. He claimed that in 1986 he and his then wife made a contract with R.R. with the effect that the applicant and his wife would provide R.R. with all care until her death and R.R. gave the applicant and his wife a flat in Dubrovnik for their use. Subsequently, another contract was made to the effect that the applicant and his wife would pay some of R.R.’s debts and that R.R. would make a testament leaving to the applicant’s wife the ground floor of a house in Dubrovnik with a garden. In 1993 the applicant and R.R. made two additional contracts whereby R.R. sold to the applicant a house in Dubrovnik. The contracts were not entered into the land registry. R.R. stayed in the house and denied the applicant’s property rights. By his action the applicant sought a declaration concerning his property rights. He also asked the court to issue an interim measure so as to prevent R.R. from selling the property in question. 10. It transpires from the case file that sometime in 1996 R.R. died but had beforehand sold the property in question to third persons. 11. Before 5 November 1997 when the Convention entered into force in respect of Croatia, several hearings were adjourned because the applicant’s counsel did not appear. 12. The hearing scheduled for 24 February 1998 was also adjourned because the applicant’s counsel did not appear. The postal receipt indicated that he had changed his address but had failed to inform the court. 13. The next hearing scheduled for 8 April 1998 was again adjourned at the request of the applicant’s counsel who informed the court that he had had no contact with the applicant. 14. At the hearing of 19 May 1998 the applicant appeared in person and asked the court to adjourn the next hearing because he had instituted several proceedings with the Dubrovnik Municipal Court and would prefer not to have to travel from Zagreb to Dubrovnik too often. 15. On 22 January 2001 the applicant informed the court that he had obtained Croatian citizenship. 16. On 17 August 2001 the applicant filed a criminal complaint with the Public Prosecutor’s Office against the presiding judge alleging that she committed the offence of negligent performance of duty in dealing with his case. He alleged that the judge had been ignoring his numerous requests to speed up the proceedings and his request for an interim measure. 17. On 18 August 2001 the applicant filed a request with the Supreme Court (Vrhovni sud Republike Hrvatske) seeking that the presiding judge be dismissed from her office and repeating his allegations from the criminal complaint filed against her. 18. On 27 August 2001 the applicant filed a motion with the president of the Dubrovnik Municipal Court challenging the presiding judge for bias and once again repeating his allegations from the criminal complaint against her. 19. On 19 September 2001 the president of the Dubrovnik Municipal Court rejected the applicant’s motion of 27 August 2001 as unfounded. 20. The next hearing was scheduled for 23 October 2001. According to the Government the Dubrovnik Municipal Court attempted to serve the notice of the hearing date on the applicant at the address indicated in his claim. The receipt slip showed that the applicant was unknown at that address. The Zagreb Police Department informed the court that the applicant did not live at the other address where he was registered. The court then posted the notice on its public notice-board. 21. Since the applicant did not appear at the hearing scheduled for 23 October 2001 the court stayed the proceedings (mirovanje postupka). 22. By a letter of 13 February 2002 the Supreme Court informed the applicant that his allegations against the presiding judge had been unfounded. 23. On 4 March 2002 the Dubrovnik Municipal Court terminated the proceedings because the applicant had not sought that the proceedings be resumed. 24. On 11 March 1994 the applicant filed an action against Lj.Š. for payment of 9,718 Croatian Kunas (HRK), with the Zagreb Municipal Court (Općinski sud u Zagrebu). 25. By default judgment of 17 May 1994 the first instance court granted the applicant’s claim. On 28 October 1997 the appellate court quashed that judgment and remitted the case to the first instance court. 26. On 9 and 29 April 1998 the applicant asked the first instance court to schedule a hearing, but did not submit Lj.Š.’s address. Therefore, the court requested her address from the Zagreb Police Department which was, however, unable to provide the requested address. 27. On 12 May 1998 the court invited the applicant to submit Lj.Š.’s address. The applicant did so on 19 June 1998. 28. As neither party appeared at the hearing scheduled for 12 November 1998 the court stayed the proceedings (mirovanje postupka). 29. On 25 November 1998 the applicant filed a motion to resume the proceedings (prijedlog za povrat u prijašnje stanje). 30. At the next hearing on 25 September 2000 the court heard the applicant and after that resumed the proceedings. 31. The next hearing scheduled for 23 November 2000 was adjourned because Lj.Š. did not appear. The postal receipt indicated that she had changed her address. The applicant submitted her new address. Lj.Š.’s counsel submitted a receipt of payment relevant for the applicant’s claim. The applicant asked the court to adjourn the hearing because he wished to submit his reply. 32. Since the applicant failed to appear at the hearing scheduled for 22 January 2001 the court stayed the proceedings. Lj.Š.’s counsel appealed against that decision. 33. On 9 October 2001 the Zagreb County Court (Županijski sud u Zagrebu) upheld the decision to stay the proceedings. 34. The proceedings were resumed before the Zagreb Municipal Court which scheduled the next hearing for 20 March 2002. At that hearing the court allowed the applicant at his request to submit documentation in support of his claim within fifteen days. 35. The next hearing scheduled for 17 May 2002 was adjourned. 36. At the hearing on 18 September 2002 the court invited the applicant to specify his claim within fifteen days. 37. At the hearing on 24 October 2002 the court heard the applicant and again invited him to specify his claim. 38. The Court notes that neither party has referred to any further steps in the proceedings since the hearing on 24 October 2002 and therefore must assume that the proceedings are still pending before the court of first instance. 39. On 1 March 1997 the applicant filed with the Dubrovnik Municipal Court an action against P.D. and D.D. seeking a declaration concerning his property rights. 40. Before 5 November 1997 the court of first instance exempted the applicant from the payment of the court fees and rejected his request to be entirely exempted from the payment of costs and expenses in the proceedings. Several hearings were adjourned. 41. At the hearing on 20 March 1998 the defendants’ counsel asked the court to order the applicant to deposit a security for the defendants’ costs and expenses because the applicant was not a Croatian citizen. 42. At the next hearing on 19 May 1998 the court invited the applicant to submit a certificate on his residence in Croatia. 43. On 6 June 1998 the applicant informed the court that he was unable to submit the requested certificate. 44. On 22 January 2001 the applicant informed the court that he had obtained Croatian citizenship. 45. On 9 November 2001 the Dubrovnik Municipal Court pronounced judgment rejecting the applicant’s claim. 46. The applicant appealed against the judgment. On 13 December 2001 the Dubrovnik Municipal Court rejected the appeal as being out of time. The applicant appealed against that decision. On 4 April 2002 the Dubrovnik County Court quashed the first instance decision rejecting the applicant’s appeal. 47. The Court notes that neither party has referred to any further steps in the proceedings and therefore must assume that the proceedings are now pending before the Dubrovnik County Court upon the applicant’s appeal against the first instance judgment of 9 November 2001. 48. On 20 March 1997 the applicant filed with the Samobor Municipal Court (Općinski sud u Samoboru) an action against K.M. for payment of HRK 1,126.100. 49. On 17 November 1997 the applicant was invited to submit a declaration of means in connection with his application for the exemption from the payment of the court fees. 50. The applicant filed a motion challenging the presiding judge for bias. His motion was dismissed by the President of the court on 2 December 1997. However, the case-file was assigned to another judge. 51. At the next hearing on 17 February 1998 K.M replied to the applicant’s claim. 52. As the judge retired, the case was assigned to another judge. 53. At the hearing on 2 June 1998 the court invited the applicant to specify his claim. 54. The next hearing scheduled for 23 February 1999 was adjourned due to the applicant’s illness. 55. At the hearing of 4 May 1999 the court again invited the applicant to specify his claim. On 7 May 1999 the applicant complied with the court’s request. 56. In July 1999 the judge went on maternity leave. In February 2000 the case was assigned to another judge. 57. The next hearing scheduled for 20 September 2000 was adjourned because K.M. did not appear. 58. At the hearing on 5 October 2000 the court concluded the proceedings. 59. On 13 October 2000 the court pronounced judgment partly granting and partly rejecting the applicant’s claim. 60. On 30 October and 11 December 2000, respectively, K.M. and the applicant filed their appeals against the judgment. 61. On 24 July 2001 the appellate court quashed the first instance judgment and remitted the case to the Samobor Municipal court for re-trial. 62. At the next hearing on 19 March 2002 the court decided to hear the parties at the hearing scheduled for 23 April 2002. 63. At the hearing on 17 June 2002 the court stayed the proceedings because the applicant did not appear. The applicant then asked the court to resume the proceedings. 64. The Court notes that neither party has referred to any further steps in the proceedings and therefore must assume that the proceedings are still pending before the court of first instance. 65. On 20 March 1997 the applicant filed with the Zagreb Municipal Court an action against A.J.J. concerning certain compensation claims. 66. The court exempted the applicant from the payment of the court fees. 67. On 24 November 1997 A.J.J.’s counsel filed a request that the applicant be ordered to deposit a security for A.J.J.’s costs and expenses because the applicant was not a Croatian citizen. 68. At the hearing on 3 December 1997 A.J.J.’s counsel repeated the previous request. The applicant opposed that request. 69. It seems that A.J.J. had filed written submissions concerning the applicant’s claim before the hearing on 29 September 1998 when the court invited the applicant to reply to A.J.J.’s submissions within fifteen days. The applicant did not submit any reply. 70. On 1 January 1999 the case was transferred to another judge because the previous judge had resigned. 71. On 7 June 2000 the court rejected A.J.J.’s request that the applicant deposit the security for her costs and expenses. 72. On 14 July 2000 A.J.J. appealed against the above decision. 73. In the meantime, on 12 July 2000, the applicant informed the court that he had obtained Croatian citizenship. 74. On 25 July 2000 A.J.J.’s appeal was sent to the applicant for reply. 75. At the hearing on 22 November 2000 the parties agreed that, since the applicant had obtained Croatian citizenship, there was no need for further examination of A.J.J.’s appeal. 76. At the next hearing on 13 March 2001 the court stayed the proceedings as the applicant did not appear. 77. On 23 March 2001 the applicant filed an application to resume the proceedings. 78. The next hearing scheduled for 11 September 2001 was adjourned because the applicant did not appear. 79. At the hearing on 5 March 2002 the court heard the applicant in connection with his application that the proceedings be resumed. 80. On 15 March 2002 the court rejected the applicant’s request to resume the proceedings and terminated the proceedings. This decision became final on 9 April 2002. 81. The relevant parts of Section 63 of the Constitutional Act on the Constitutional Court (entered into force on 15 March 2002, published in the Official Gazette no. 49 of 3 May 2002 – hereinafter “the 2002 Constitutional Court Act” – Ustavni zakon o Ustavnom sudu Republike Hrvatske iz 2002) read as follows: (1) The Constitutional Court shall examine a constitutional complaint even before all legal remedies have been exhausted in cases when a competent court has not decided within a reasonable time a claim concerning the applicant’s rights and obligations or a criminal charge against him ... (2) If the constitutional complaint ... under paragraph 1 of this Section is accepted, the Constitutional Court shall determine a time-limit within which a competent court shall decide the case on the merits... (3) In a decision under paragraph 2 of this Article, the Constitutional Court shall fix appropriate compensation for the applicant in respect of the violation found concerning his constitutional rights ... The compensation shall be paid from the State budget within a term of three months from the date when the party lodged a request for its payment. 82. Decision of the Constitutional Court of 20 November 2002, no. UIIIA-1535/2002 reads as follows in its relevant parts: D E C I S I O N The Court rejects the constitutional complaint. R e a s o n i n g 1. The constitutional complaint was filed pursuant to Section 63 § 1 of the Constitutional Act on the Constitutional Court (Official Gazette no. 49/02-consolidated legislation, hereinafter the Constitutional Act). It appears from the constitutional complaint and the enclosed documents that on 17 June 1992 the applicant, as a plaintiff, filed a claim before the Zagreb Municipal Court seeking damages from the Croatia Insurance Company from Zagreb. The applicant’s claim was rejected by the Zagreb Municipal Court’s final judgment no. Pn-2507/95 of 15 January 1998 (the Zagreb County Court rejected the applicant’s appeal as unfounded by its judgment No. Gž-6927/00 of 8 August 2000). The applicant’s request for revision was rejected as inadmissible by virtue of the Supreme Court’s decision No. Rev-2827/00 of 9 January 2002. 2. The applicant complains under Section 29 of the Constitution that the excessive length of civil proceedings (10 years) infringed his right to fair trial within a reasonable time ... ... 5. The Constitutional Court has established that the applicant has exhausted all available legal remedies within the meaning of Section 62 §§ 1 and 2 of the Constitutional Act because the proceedings have been concluded ... 6. Section 32 of the Constitutional Act provides that the Constitutional Court must reject a complaint when the conditions set out for considering the merits of the complaint have ceased to exist. 7. Since, for the above mentioned reasons, the conditions for considering the applicant’s complaint set out in Section 63 § 1 of the Constitutional Act have ceased to exist, the Court has decided to reject the complaint pursuant to Section 32 of the Constitutional Act ... “R J E Š E NJ E Ustavna tužba se odbacuje. O b r a z l o ž e nj e 1. Ustavna tužba podnijeta je temljem odredbe članka 63. stavka 1. Ustavnog zakona o Ustavnom sudu Republike Hrvatske (“Narodne novine”, broj 49/02-pročišćeni tekst, u daljnjem tekstu: Ustavni zakon) Iz obrazloženja ustavne tužbe i priložene dokumentacije proizlazti da je podnositelj, kao tužitelj, dana 17. lipnja 1992. godine, podnio Općinskom sudu u Zagrebu tužbu protiv Croatia osiguranja d.d. iz Zagreba, kao tuženika, radi naknade štete. Tužbeni zahtjev podnositelja odbijen je pravomoćnom presudom Općinskog suda u Zagrebu, broj: Pn 2507-95 od 15. siječnja 1998. godine (Županijski sud u Zagrebu presudom broj: Gž 6927-00 od 8. kolovoza 2000. godine odbio je žalbu podnositelja kao neosnovanu.). Protiv pravomoćne presude podnositelj je izjavio reviziju, koja je odbačena kao nedopuštena rješenjem Vrhovnog suda Republike Hrvatske, broj: Rev 827-00 od 9. siječnja 2002. godine. 2. Podnositelj u ustavnoj tužbi ističe povredu odredbe članka 29. Ustava jer smatra da mu je zbog nerazumno dugog trajanja parnice (10 godina) povrijeđeno pravo na pošteno suđenje... ... 5. Ustavni sud je utvrdio da je u slučaju podnositelja ustavne tužbe iscrpljen pravni put u smislu odredbi člnaka 62. stavaka 1. i 2. Ustavnog zakona jer je sudski postupak pravomoćno okončan... 6. Odredba članka 32. Ustavnog zakona propisuje da će Ustavni sud rješenjem odbaciti ustavnu tužbu u slučajevima kad ne postoje pretpostavke za odlučivanje o biti stvari. 7. S obzirom da iz navedenih razloga ne postoje pretpostavke navedene u člnaku 63. stavku 1. Ustavnog zakona za odlučivanje o podnesenoj ustavnoj tužbi, na temelju odredbe članka 32. Ustavnog zakona, riješeno je kao u izreci.”
| 1
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train
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001-86088
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ENG
|
TUR
|
CHAMBER
| 2,008
|
CASE OF ŞAHİN KARAKOÇ v. TURKEY
| 4
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No violation of Article 6 - Right to a fair trial;Violation of Article 6 - Right to a fair trial
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András Sajó;Antonella Mularoni;Ireneu Cabral Barreto;Nona Tsotsoria
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4. The applicant was born in 1957 and lives in İstanbul. 5 6. On 5 July 1993 Başbağlar village in Erzincan was raided by terrorists. They burned numerous houses and killed 33 villagers. The applicant, who was living in the neighbouring village, was suspected of having participated in the so-called “Başbağlar Massacre”. 7. The applicant and twenty other individuals were charged under Article 125 of the Criminal Code. 8. On 24 January 1996 the applicant was arrested and remanded in custody. On 18 February 1997 the İzmir State Security Court ordered his release pending trial. 9. On 23 October 1997 the applicant was acquitted. 10. On 12 February 1999 the applicant lodged a complaint under Law no. 466 with the Bakırköy Assize Court against the Treasury, requesting 1,000,000,000 Turkish liras (TRL) in respect of pecuniary damage and TRL 4,000,000,000 for non-pecuniary damage by way of compensation for unjustified detention between 24 January 1996 and 18 February 1997. 11. The Bakırköy Assize Court appointed one of its members as judge rapporteur (naip hakim) to investigate the case and draft a report. The applicant was heard by the judge rapporteur on 8 June and 12 October 2000. He stated that he did not have a regular job at the time but was unofficially working for a dairy merchant six months a year, collecting cheese from local farmers, and in return was paid TRL 100,000,000 per month. 12. On 6 November 2001 the Bakırköy Assize Court found that the applicant’s unjustified detention on remand for 384 days qualified for compensation. In its judgment, the court took note of all the complaints set out by the applicant’s lawyer, as well as the content of the judge rapporteur’s report and the written submissions of the public prosecutor. The court further referred to the minimum wage at the time and the expert report which had estimated the applicant’s income loss to be TRL 168,114,000. The court concluded in line with the expert report and awarded the applicant TRL 168,114,000 for pecuniary damage. Considering the applicant’s economic and social position, the seriousness of the charges brought against him and the time that he had spent in detention as well as the intensity of his emotional suffering, the court additionally awarded the applicant TRL 1,000,000,000 for non-pecuniary damage. 13. The applicant’s lawyer appealed and claimed that the amount of compensation for non-pecuniary damage was insufficient reparation for the wrongful detention of the applicant and the subsequent suffering that he had endured. He further maintained that, considering the length of the proceedings, the compensation for pecuniary damage awarded by the court was not sufficient either. He also complained about the lack of interest on the compensation. 14. On 4 March 2002 the Court of Cassation quashed the decision on the ground that the defendant had not been notified of the applicant’s claim and had not been invited to submit replies. 15. The case was resumed before the Bakırköy Assize Court. On 18 September 2002 the judge rapporteur heard the applicant who repeated his previous statements and was paid TRL 100,000,000 per month. A new expert report estimated the applicant’s income loss, on the basis of the net minimum wages in force at the time, to be TRL 113,266,974. 16. On 21 October 2002 the Bakırköy Assize Court awarded the applicant TRL 113,266,974 for pecuniary damage and TRL 2,000,000,000 for non-pecuniary damage. The court refused the applicant’s claim for interest which was not covered by Law no. 466. 17. On 14 January 2003 the applicant appealed. 18. The written opinion of the Public Prosecutor was submitted to the Court of Cassation and notified to the applicant. 19. On 21 October 2003 the Court of Cassation upheld the decision of the Bakırköy Assize Court, with a minor amendment regarding the costs and expenses. 20. On 5 October 2004 the applicant was paid TRL 2,113,266,974 plus TRL 1,233,300,000 in statutory interest, applied with effect from 21 October 2002.
| 1
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train
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001-115377
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ENG
|
FRA
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CHAMBER
| 2,012
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CASE OF MICHAUD v. FRANCE
| 1
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Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life)
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André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Helen Keller;Karel Jungwiert;Mark Villiger
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8. The applicant was born in 1947 and lives in Paris. He is a member of the Paris Bar and the Bar Council. 9. He submitted that the European Union had adopted three Directives in succession aimed at preventing the use of the financial system for money-laundering. The first (91/308/EEC of 10 June 1991) targets credit and financial institutions. It was amended by a Directive of 4 December 2001 (2001/97/EC) which, among other things, widened its scope to include professions outside the financial sector, including members of the independent legal professions. The third Directive (2005/60/EC of 26 October 2005) repealed the Directive of 10 June 1991, as amended, and reproduced and added to its content. The laws transposing these Directives – Law no. 2004-130 of 11 February 2004 in the case of the Directive of 10 June 1991, as amended – and the regulations implementing that law – Decree no. 2006-736 of 26 June 2006 – have been incorporated into the Monetary and Financial Code (for more details see sections III and IV below on relevant European Union and domestic law). 10. These texts place lawyers under an “obligation to report suspicions” which the legal profession – who see it as a threat to professional privilege and the confidentiality of exchanges between lawyers and their clients – have constantly criticised, in particular through the National Bar Council. 11. However, on 12 July 2007 the National Bar Council took a “decision adopting regulations on internal procedures for implementing the obligation to combat money-laundering and terrorist financing, and an internal supervisory mechanism to guarantee compliance with those procedures” (published in the Official Gazette on 9 August 2007). In so doing it was effectively applying section 21-1 of the Law of 31 December 1971 reforming certain legal and judicial professions, which empowered it, with due respect for the laws and regulations in force, to take general measures to unify the rules and practices of the legal profession. 12. Article 1 of the above-mentioned decision states that “all lawyers who are members of a French Bar” are bound by these rules of their profession when, in the course of their business activity, they participate for and on behalf of their client in any financial or real-estate transaction or assist their client in the preparation or execution of transactions relating to: (1) the buying and selling of real estate or businesses; (2) the management of funds, securities or other assets belonging to the client; (3) the opening of current accounts, savings accounts or securities accounts; (4) the organisation of the contributions required to create companies; (5) the formation, administration or management of companies; and (6) the formation, administration or management of trusts governed by a foreign legal system, or of any other similar structure. They are not bound by these rules “when acting as legal counsel or in the context of judicial proceedings” in connection with one or other of the above activities (Article 2). 13. The regulations establish in particular that lawyers must always “show due diligence” in this context and “develop internal procedures” to ensure compliance with, inter alia, the laws and regulations governing the reporting of suspicions (Article 3), indicating in particular the procedure to be followed when an operation appears to warrant such reporting (Article 7). More specifically, they must adopt written rules describing the steps to be taken (Article 5). They must also ensure that the regulations are properly applied in their structure, and that lawyers and staff receive the necessary information and training, tailored to their particular activities (Article 9), and set up an in-house monitoring system (Article 10). At the same time, the regulations also specify that “lawyers must, in all circumstances, ensure that professional confidentiality is respected” (Article 4). 14. Failure to comply with these regulations can entail disciplinary sanctions and even being struck off (Articles 183 and 184 of Decree no. 911197 of 27 November 1991 organising the legal profession). 15. On 10 October 2007, considering that it undermined lawyers’ freedom to exercise their profession and the essential rules regulating that profession, the applicant appealed to the Conseil d’Etat to have the decision set aside. He submitted that there was no law or regulation giving the National Bar Council regulatory powers in such matters as money-laundering. Furthermore, pointing out that the decision concerned required lawyers to adopt in-house procedures to ensure compliance with the instructions on the reporting of suspicions, subject to disciplinary sanctions, and that the term “suspicions” was not defined, he complained that this was in breach of the requirement of legal certainty inherent in Article 7 of the Convention. In addition, referring to the André and Another v. France judgment (no. 18603/03, 24 July 2008), he contended that the regulations adopted by the National Bar Council were incompatible with Article 8 of the Convention, as the “obligation to report suspicions” jeopardised legal professional privilege and the confidentiality of exchanges between lawyer and client. Lastly, under Article 267 of the Treaty on European Union, he asked the Conseil d’Etat to refer the matter to the Court of Justice of the European Union for a preliminary ruling on the conformity of the “declaration of suspicion of criminal offence” with Article 6 of the Treaty on European Union and Article 8 of the Convention. 16. By a judgment of 23 July 2010, the Conseil d’Etat rejected the bulk of the submissions in the application. 17. Concerning the submission based on Article 7 of the Convention, the judgment found that the “reporting of suspicions” referred to in the disputed decision was not unclear in so far as it referred to the provisions of Article L. 562-2 of the Monetary and Financial Code (subsequently amended to become Article L. 561-15). As to the submission based on Article 8, the judgment rejected it on the following grounds: “... if, according to the applicant, the provisions of [Directive 91/308/EEC, as amended] are incompatible with those of Article 8 of the Convention ... which protect the fundamental right to professional confidentiality, among other things, that Article also permits interference by the authorities with that right when necessary in the interests of public safety, for the prevention of disorder or crime ...; ... regard being had on the one hand to the general interest served by combating money-laundering and, on the other, to the safeguard provided by the exclusion from its scope of information received or obtained by lawyers in the course of activities connected with judicial proceedings, or in their capacity as legal counsel, save, in this latter case, where the lawyer is taking part in money-laundering activities, or the legal advice is provided for money-laundering purposes, or the lawyer knows that the client is seeking legal advice for money-laundering purposes, the obligation under the Directive concerned for lawyers to report their suspicions does not amount to excessive interference with professional confidentiality; ... accordingly there is no need to refer the matter to the Court of Justice of the European Union for a preliminary ruling and the submission concerning the breach of the Convention provision concerned must be rejected.” 18. The recommendations adopted by the FATF provide, inter alia, for a duty of diligence on the part of financial institutions and require them to report suspicious transactions. Recommendation no. 12 proposed widening the scope of the professions concerned by the requirement of due diligence to include “lawyers, notaries, other independent legal professionals and accountants” when they prepare or carry out transactions for their clients concerning the following activities: buying and selling of real estate; managing of client money, securities or other assets; management of bank, savings or securities accounts; organisation of contributions for the creation, operation or management of companies; and creation, operation or management of legal persons or arrangements, and buying and selling of business entities. Recommendation no. 16 widened the scope of the obligation to report suspicious transactions to include the same professions when engaging in the above activities, but provided for an exception when the relevant information was obtained in circumstances where they were subject to professional secrecy or legal professional privilege. 19. The Council of Europe Convention of 16 May 2005 on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (which came into force on 1 May 2008 but has not been ratified by France) contains the following provisions concerning the prevention of money-laundering (Article 13 §§ 1 and 2). “1. Each Party shall adopt such legislative and other measures as may be necessary to institute a comprehensive domestic regulatory and supervisory or monitoring regime to prevent money-laundering and shall take due account of applicable international standards, including in particular the recommendations adopted by the Financial Action Task Force on Money Laundering (FATF). 2. In that respect, each Party shall adopt, in particular, such legislative and other measures as may be necessary to: (a) require legal and natural persons which engage in activities which are particularly likely to be used for money-laundering purposes, and as far as these activities are concerned, to: (i) identify and verify the identity of their customers and, where applicable, their ultimate beneficial owners, and to conduct ongoing due diligence on the business relationship, while taking into account a risk-based approach; (ii) report suspicions on money-laundering subject to safeguards; (iii) take supporting measures, such as record-keeping on customer identification and transactions, training of personnel and the establishment of internal policies and procedures, and if appropriate, adapted to their size and nature of business; (b) prohibit, as appropriate, the persons referred to in sub-paragraph (a) from disclosing the fact that a suspicious transaction report or related information has been transmitted or that a money-laundering investigation is being or may be carried out; (c) ensure that the persons referred to in sub-paragraph a are subject to effective systems for monitoring, and where applicable supervision, with a view to [ensuring] their compliance with the requirements to combat money-laundering, where appropriate on a risk-sensitive basis.” According to the explanatory report, the intention of the drafters of this Convention was that it should also cover the “non-financial professions” referred to in FATF Recommendation no. 12. Moreover, the expression “subject to safeguards” in Article 13 § 2 (a) (ii) primarily means that it is in respect of the independent legal professions that the restriction “resulting from professional secrecy or legal professional privilege” contained in FATF Recommendation no. 16 (and its explanatory note) is relevant. 20. On 10 June 1991 the Council of the European Communities adopted Directive 91/308/EEC on the prevention of the use of the financial system for the purpose of money-laundering. The aim was to oblige credit and financial institutions to identify their customers and all transactions in excess of 15,000 euros (EUR), to “examine with special attention” any suspicious transaction they considered likely to be related to money-laundering, and to report any sign of money-laundering to the relevant authorities. It was amended by Directive 2001/97/EC of 4 December 2001, which broadened the definition of laundering and extended the obligation to identify clients and report suspicious transactions to a series of professionals outside the financial sector, and in particular to “independent legal professionals”. 21. Directive 91/308/EEC, as amended, was repealed by Directive 2005/60/EC of 26 October 2005 on the prevention of the use of the financial system for the purpose of money-laundering and terrorist financing, which reproduces and adds to the text of the earlier Directive. Recital 19 specifies that “independent legal professionals ... as defined by the member States ... are subject to the provisions of [the] Directive when participating in financial or corporate transactions, including providing tax advice, where there is the greatest risk of the services of those legal professionals being misused for the purpose of laundering the proceeds of criminal activity or for the purpose of terrorist financing”. Article 2 § 1 (3) (b) specifies that the Directive applies to them when, “acting in the exercise of their professional activities”, “they participate, whether by acting on behalf of and for their client in any financial or real-estate transaction, or by assisting in the planning or execution of transactions for their client concerning the: (i) buying and selling of real property or business entities; (ii) managing of client money, securities or other assets; (iii) opening or management of bank, savings or securities accounts; (iv) organisation of contributions necessary for the creation, operation or management of companies; (v) creation, operation or management of trusts, companies or similar structures”. 22. The Directive calls in certain cases for customer due diligence measures, including identifying and verifying the identity of the customer and the beneficial owner and obtaining information on the purpose and intended nature of the business relationship (Article 8 § 1 (a), (b) and (c)). Member States are in principle obliged to require that, where the institution or person concerned is unable to comply with its obligations, they “may not carry out a transaction through a bank account, establish a business relationship or carry out the transaction, or shall terminate the business relationship, and shall consider making a report to the financial intelligence unit (FIU) in accordance with Article 22”. This obligation does not apply, however, “in situations when ... independent legal professionals ... are in the course of ascertaining the legal position for their client or performing their task of defending or representing that client in, or concerning judicial proceedings, including advice on instituting or avoiding proceedings” (Article 9 § 5). 23. It also enshrines the obligation to report suspicions, specifying that “member States shall require the institutions and persons [concerned] ... to cooperate fully”, “by promptly informing the FIU, on their own initiative, where [they] know, suspect or have reasonable grounds to suspect that money-laundering or terrorist financing is being or has been committed or attempted” and “by promptly furnishing the FIU, at its request, with all necessary information, in accordance with the procedures established by the applicable legislation” (Article 22 § 1). 24. However, where “independent legal professionals” are concerned, “member States may ... designate an appropriate self-regulatory body of the profession concerned as the authority to be informed in the first instance in place of the FIU”, in which case the designated self-regulatory body must “forward the information to the FIU promptly and unfiltered” (Article 23 § 1). 25. And member States are not obliged to apply the obligations laid down in Article 22 to (inter alia) “independent legal professionals ... with regard to information they receive from or obtain on one of their clients, in the course of ascertaining the legal position for their client or performing their task of defending or representing that client in, or concerning judicial proceedings, including advice on instituting or avoiding proceedings, whether such information is received or obtained before, during or after such proceedings” (Article 23 § 2). 26. Lastly, according to recital 48, “[n]othing in this Directive should be interpreted or implemented in a manner that is inconsistent with the European Convention on Human Rights”. 27. In 2005, in connection with an application lodged by various Belgian Bar associations to have certain legal provisions transposing Directive 2001/97/EC annulled, the Belgian Constitutional Court referred the following question to the Court of Justice of the European Communities for a preliminary ruling: “Does Article 1, [§ 2], of Directive 2001/97 ... breach the right to a fair trial guaranteed by Article 6 of the [Convention] ... in so far as the new Article 2 bis, [§ 5] which it adds to Directive 91/308/EEC imposes the inclusion of independent legal professionals – no exception being made for lawyers – in the scope of the said Directive, which, in substance, requires certain people and institutions to inform the authorities responsible for combating money-laundering of any sign that may be an indication of money-laundering (Article 6 of Directive 91/308/EEC, replaced by Article 1, [§ 5], of Directive 2001/97/EC)?” The Bar associations submitted in particular that in extending to lawyers the obligation to inform the competent authorities of any transactions they knew or suspected were linked to money-laundering, the legislation concerned was in breach of the principles of professional confidentiality and the independence of the lawyer, which are essential aspects of the fundamental right to a fair trial and the rights of the defence. 28. In its judgment of 26 June 2007, the Court of Justice disagreed. 29. Firstly, it pointed out that fundamental rights formed an integral part of the general principles of law which it upheld, drawing on the constitutional traditions shared by the member States and the guidance given by the international human rights protection treaties to which the member States were party or with which they cooperated, among which the European Convention on Human Rights was “particularly significant”. It concluded that the right to a fair trial enshrined, inter alia, in Article 6 of the Convention was a fundamental right which the European Union respected as a general principle by virtue of Article 6 § 2 of the Treaty on European Union. Next, it noted that under the Directive in question the obligations to report and cooperate applied to lawyers only when they were helping their clients to prepare or carry out certain types of transaction, mainly financial or real-estate operations, or when they were acting in the name and on behalf of their clients in such financial transactions or real-estate operations. It pointed out that as a general rule these activities, by their very nature, took place in contexts that were not related to any judicial proceedings and therefore did not concern the right to a fair trial. The Court of Justice further noted that where a lawyer’s assistance with a transaction was requested in connection with the defence or representation of a client in judicial proceedings, or advice on instituting or avoiding proceedings, the Directive exempted the lawyer from these obligations. It considered that this exemption protected the client’s right to a fair trial. It also stated that the requirements relating to the right to a fair trial did not preclude the obligations of information and cooperation from being imposed on lawyers acting specifically in the situations listed in the preceding paragraph where those obligations were “justified by the need ... to combat money-laundering effectively, in view of its evident influence on the rise of organised crime, which itself [was] a particular threat to society in the member States”. 30. The above-mentioned Directives have been transposed into French law and included (and amended several times) in the Monetary and Financial Code. 31. The obligations of customer due diligence are codified in Articles L. 561-5 to L. 561-14-2, and those concerning reporting in Articles L. 561-15 to L. 561-22 (in the present version of the Code). 32. These provisions apply to various organisations and professionals listed in Article L. 561-2 of the Code, including lawyers in the Conseil d’Etat and the Court of Cassation, and lawyers and avoués in the courts of appeal when, “in the context of their business activity ... 1. They participate for and on behalf of their client in any financial or real-estate transaction or act as a trustee; 2. They assist their client in the preparation or execution of transactions relating to: (a) the buying and selling of real estate or businesses; (b) the management of funds, securities or other assets belonging to their client; (c) the opening of current accounts, savings accounts or securities accounts, or of insurance policies; (d) the organisation of the contributions required to create companies; (e) the formation, administration or management of companies; (f) the formation, administration or management of trusts governed by Articles 2011 to 2031 of the Civil Code or by a foreign legal system, or of any other similar structure; (g) the formation or administration of endowment funds (Article L. 561-3 I). They do not apply to them, however, when the activity relates to judicial proceedings, whether the information they have was received or obtained before, during or after said proceedings, including any advice given with regard to the manner of initiating or avoiding such proceedings, nor where they give legal advice, unless said information was provided for the purpose of money-laundering or terrorist financing or with the knowledge that the client requested it for the purpose of money-laundering or terrorist financing” (Article L. 561-3 II). 33. Article R. 563-3 provided for internal procedures for implementing the legal obligations to be set in place, as appropriate, by ministerial decree or through professional regulations approved by the Minister. 34. The obligation of due diligence means that before entering into a business relationship with their client the person or entity concerned must identify the client and, where applicable, the effective beneficiary of the business relationship, and verify proof of identity (Article L. 561-5 I). As an exception, where the risk of money-laundering or of terrorist financing appears to be low, the identity of the client and, where applicable, that of the effective beneficiary, may be verified when the business relationship is in the process of being established (Article L. 5615 II). Information relating to the object and nature of the business relationship and any other piece of relevant information concerning the client must also be gathered before the business is transacted. Throughout its duration the persons or entities concerned are required to apply “constant due diligence” to the business relationship, within the limits of their rights and obligations, and carry out a “thorough examination of the transactions executed, taking care to ensure that they are consistent with the latest information they have concerning their client” (Article L. 561-6). 35. Where a party is unable to identify its client or to obtain information on the object and nature of the business relationship, it must not execute any transaction, regardless of the particulars, or establish or pursue any business relationship. Where it has been unable to identify its client or to obtain information on the object and nature of the business relationship, and the relationship has nevertheless been established pursuant to Article L. 5615 II, it must terminate it (Article L. 561-8). 36. The persons or entities concerned must declare to their country’s financial intelligence unit (“the FIU”) the sums entered in their books or the transactions relating to sums which they know, suspect or have good reasons for suspecting are the proceeds of an offence punishable by a custodial sentence of more than one year or are destined for terrorist financing (Article L. 561-15 I). They must also declare the sums or transactions which they know, suspect or have good reasons for suspecting are the proceeds of a tax fraud, where at least one of the following criteria defined by Article D. 561-32-1 II is present (Article L. 561-15 II): “1. The use of a front company, whose activity is inconsistent with its stated object or which has its registered office in a State or territory which has not signed a tax agreement with France giving it access to bank information, as identified from a list published by the tax authorities, or at the private address of one of the beneficiaries of the suspicious operation, or in premises occupied by several businesses within the meaning of Article L. 123-11 of the Commercial Code; 2. Financial operations made by a company whose articles of association have undergone frequent changes not justified by the economic situation of the company concerned; 3. Recourse to middlemen acting in appearance only for the companies or individuals involved in financial operations; 4. Carrying out financial operations inconsistent with the usual activities of the company or suspicious operations in sectors sensitive to carousel-type VAT fraud, such as information technology, telephones, electronic goods, household appliances, hi-fi and video; 5. The sudden, unexplained sharp increase over a short period in the amounts credited to newly opened or hitherto inactive accounts, possibly linked to a sharp increase in the number and volume of transactions or the use of previously dormant or inactive companies whose articles of association have recently undergone changes; 6. The presence of anomalies in the invoices or order forms presented as justification for financial operations, such as a missing company registration or [French] SIREN or VAT number, invoice number, address or date; 7. The unexplained use of payable-through accounts which register large numbers of debit and credit operations while the balance remains close to zero; 8. The frequent withdrawal of cash from or deposit of cash in a business account which is not justified by the volume or nature of the economic activity; 9. Difficulty in identifying the end beneficiaries and the links between the origin and destination of funds because of the use of intermediate accounts or non-financial business accounts such as payable-through accounts, or the use of complex legal and financial business structures which tend to obscure management and administrative machineries; 10. International financial operations with no apparent legal or economic justification, often limited to the simple transit of funds from or to other countries, when the countries concerned are States or territories referred to in 1. above; 11. Refusal or inability of the client to supply proof of the origin of funds received or justification of payments made; 12. Transfer of funds to a foreign country, followed by repatriation thereof in the form of loans; 13. Organisation of insolvency by the rapid sale of assets to persons or legal entities or on terms that reflect a clear and unjustified imbalance in the selling price; 14. Regular use by individuals living and having an activity in France of accounts held by foreign companies; 15. The deposit by a private individual of funds unrelated to his known activity or assets; 16. The sale of real estate at a grossly undervalued price.” They are also required to declare to the FIU any transaction in respect of which the identity of the principal or of the effective beneficiary or of the grantor of a fiduciary fund or of any other management instrument of a special-purpose trust remains dubious despite the steps taken pursuant to Article L. 5615 (Article L. 561-15 IV). A decree of the Conseil d’Etat specifies the form this declaration must take. 37. The persons and entities concerned must refrain from executing any transaction which they suspect may be linked to money-laundering or to terrorist financing until such time as they have made the report referred to above (Article L. 561-16). Where a transaction which should have been the subject of the report referred to in Article L. 561-15 has already been executed on account of it being impossible to defer its execution, or because its deferral could have obstructed investigations relating to a suspected money-laundering or terrorist financing transaction, or because it did not appear to be subject to said report until after its execution, the person or entity must inform the FIU thereof without delay. 38. As an exception, advocates attached to the Conseil d’Etat and the Court of Cassation, and counsel before the court of appeal send their reports not to the FIU but, as applicable, to the President of the Bar Council of the Conseil d’Etat and of the Court of Cassation, to the Chairman of the Bar to which the advocate belongs or to the Chairman of the professional body of which the counsel is a member. As soon as the conditions set forth in Article L. 561-3 are met, the said authorities send the report to the FIU in conformity with the terms set forth in a decree of the Conseil d’Etat (Article L. 561-17). 39. The report concerned is confidential. It is prohibited to divulge its existence and content and to disclose information regarding its outcome. Disregarding the prohibition on disclosure is punishable by a fine of EUR 22,500 (Article L. 5741; inserted in the Monetary and Financial Code by Order no. 2009-104 of 30 January 2009); the fact of the advocates concerned endeavouring to dissuade their client from taking part in an illegal activity does not constitute prohibited disclosure (Article L. 561-19). 40. The FIU (known as “Tracfin” in France) is an administrative investigation department of the Ministry of Finance, composed of specially selected officials. Its main purpose is to collect, analyse, develop and make use of any information likely to establish the origin or the destination of the sums or the nature of the transactions that have been the subject of a report. Where its investigations reveal acts likely to relate to the laundering of the proceeds of an offence punishable by a custodial sentence in excess of one year or to terrorist financing, it refers the matter to the public prosecutor via a memorandum (Article L. 56123). 41. The FIU may directly ask the persons concerned to disclose documents kept in connection with the obligation of due diligence. As an exception to the above, requests for disclosure of documents made to advocates attached to the Conseil d’Etat and to the Court of Cassation and to advocates and counsel attached to the courts of appeal are submitted by the FIU, as applicable, to the President of the Bar Council of the Conseil d’Etat and of the Court of Cassation, or the Chairman of the Bar or the professional body to which the advocate or counsel belongs. Having ensured that the provisions of Article L. 561-3 have been complied with, these persons then forward the documents thus received to the FIU (Article L. 561-26). 42. The persons and entities concerned are required to put systems in place to assess and manage the risks of money-laundering and of terrorist financing, and to provide their staff with regular training and information to ensure compliance with the obligations of due diligence and reporting (Articles L. 561-32 and L. 561-33). Article R. 563-3 (repealed by Decree no. 2009-1087 of 2 September 2009) provided for the internal procedures to be defined by order of the relevant ministry, by professional rules and regulations approved by the ministry concerned, or by the general regulations of the financial markets supervisory authorities. 43. Where, as a result of either a serious lack of due diligence or a failure in the organisation of its internal auditing procedures, an advocate attached to the Conseil d’Etat or the Court of Cassation or an advocate or counsel attached to the courts of appeal has failed to comply with these obligations, the competent supervisory authority will institute disciplinary proceedings founded on the professional or administrative rules and shall notify the public prosecutor attached to the Court of Cassation or the court of appeal thereof (Article L. 561-36 III). 44. In a judgment of 10 April 2008 (no. 296845), the Conseil d’Etat found Directive 2001/97/EC of 4 December 2001 and the Law of 11 February 2004 transposing it compatible with Articles 6 and 8 of the Convention. 45. Concerning the Directive, the Conseil d’Etat first pointed out that the judgment of the Court of Justice of the European Communities in the case of Ordre des barreaux francophones et germanophone and Others had found that it was not in breach of the requirements of the right to a fair trial guaranteed by Article 6 of the Convention in so far as the obligation to cooperate and report excluded information obtained by lawyers in the course of their activities linked to judicial proceedings. The same judgment showed that information obtained by a lawyer evaluating a client’s legal situation was also excluded from the scope of these obligations, the only exceptions being where the lawyer was taking part in money-laundering activities, or the legal advice was provided for money-laundering purposes, or the lawyer knew that the client was seeking legal advice for money- laundering purposes. That being so, and regard being had to the general interest served by combating money-laundering, the Directive “did not violate the fundamental right to professional confidentiality protected by Article 8 of the Convention ..., which permits interference by the authorities with the right to respect for private and family life when necessary in the interests of public safety, for the prevention of disorder or crime”. 46. As to the legislation, the Conseil d’Etat found that it was an accurate transposition of the Directive and that, as such, it was not incompatible with the fundamental rights guaranteed by Articles 6 and 8 of the Convention.
| 0
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train
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001-6029
|
ENG
|
TUR
|
ADMISSIBILITY
| 2,001
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VOYAGER LIMITED v. TURKEY
| 4
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Inadmissible
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Elisabeth Palm;Gaukur Jörundsson
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The applicant company Voyager Ltd. (hereinafter the applicant) is a limited liability company incorporated under the laws of the Isle of Man. It is represented before the Court by Cameron Markby Hewitt, a firm of solicitors in London. The applicant is a subsidiary company of Polly Peck International (“PPI”). Mr Asil Nadir was the director of PPI from 1980 until he was declared bankrupt in 1991. In October 1990, the applicant owned 32,000 of the 40,000 shares in AN Graphics A.Ş., a company registered in İstanbul and incorporated in accordance with Turkish law. On 16 October 1990, a meeting of the applicant’s Board of Directors was held in Cyprus. The Articles of Association of the applicant provided that the quorum for a board of directors’ meeting is two. However, this meeting was only attended by Mr Tunalıer, a director of the applicant, and Mr Nevzat, a former director of the applicant, who had formally resigned from his post a day before the meeting. The other two directors of the applicant were not informed about this meeting. At this meeting a decision was taken to appoint Mr Aziz as director of Voyager. On 21 October 1990 another Board of Directors’ meeting was held in Cyprus, this time in the presence of Mr Tunalıer and Mr Aziz. At this meeting, the transfer of 32,000 shares held by the applicant in AN Graphics to Mr Nadir for a payment of GBP 8,000,000 was ratified. Consequently, the applicant’s 32,000 shares in AN Graphics were registered in the share register in the name of Mr Nadir. On 25 October 1990 an Administrative Order was made by the English courts in respect of PPI whereby two administrators were appointed to act as the company’s officers. On 25 November 1991 Mr Nadir was made bankrupt in accordance with English law. On 5 November 1992 the High Court of Justice of the Isle of Man declared that the meetings of the applicant’s Board of Directors held respectively on 16 October 1990 and 21 October 1990 were inquorate and therefore null and void. The applicant accused Mr Nadir of wrongful transfer of shares with the intention of transferring them outside the PPI Group to ensure that they remained under his personal control after the Administration Order became effective on 25 October 1990. Consequently several proceedings were brought before the Turkish courts against AN Graphics and Mr Asil Nadir. On 2 September 1991 the applicant initiated legal proceedings before the İstanbul Commercial Court for a declaration that 23,112 of its shares in AN Graphics had been unlawfully transferred into the name of Mr Nadir. On 26 February 1993, after having examined all the evidence and the arguments submitted by the parties, the court found that there was no dispute between the parties concerning the nullity of the Board meetings held on 16 October 1990 and 21 October 1990. Accordingly, the Court held that the transfer of 23,112 shares into the name of Mr Nadir was null and therefore void. The court further ruled that the restoration of the shares in the applicant’s name was dependent on the payment of GBP 5,778,000 to Mr Nadir, this sum being fixed in the light of the minutes of the meeting of the Board of Directors held on 21 October 1990. The applicant appealed. On 31 March 1994 the Court of Cassation upheld the decision of the first instance court as regards the nullity of the share transfer. However, it quashed the remainder of the judgment concerning the obligation to pay back GBP 5,778,000 to Mr Nadir to restore the shares, on the ground that Mr Nadir had not made such a claim before the first instance court. Subsequently, Mr Nadir requested the rectification of the decision dated 31 March 1994. On 27 October 1994 the Court of Cassation found that the Commercial Court’s decision, dated 26 February 1993, was in fact in line with the established case-law of the Court of Cassation, which provides that first instance courts are entitled, ex officio, to establish a lien even though the parties do not make such a claim. Thus, the Court of Cassation concluded that the first instance court had acted in accordance with domestic law in establishing a lien over the shares in favour of the defendant. Accordingly, it ruled that the reasoning of the Court of Cassation’s decision dated 31 March 1994 was erroneous. However, the court further held that, as there was a dispute between the parties about the payment of GBP 5,778,000, the first instance court should have first examined in detail whether the defendant had really paid the sum in question before ruling on a lien in respect of the shares. In view of its findings, the court remitted the case to the first instance court for a detailed examination. On 23 January 1995 the Commercial Court decided to apply the Court of Cassation’s decision of 27 October 1994. Recalling that under Turkish law the conditions which apply to share transfer are regulated by the provisions governing the contract of sale in the Code of Obligations, the court placed the burden of proof on the applicant to show that it had not received any consideration from the defendant in return for the shares. The court granted one month to the applicant to submit any evidence in support of its allegations. However, the applicant stated before the court that it did not have any proof. Accordingly, on 24 March 1995 the Commercial Court held that pursuant to the Code of Obligations, the vendor and the purchaser should fulfil their contractual obligations at the same time unless there was an agreement to the contrary. The court observed that the defendant claimed to have paid the sum in question to the applicant in return for the shares and that, according to Turkish domestic law, the burden of proof was on the applicant to show that its allegations were true. Accordingly, the court accepted that the defendant had paid GBP 5,778,000 in return for the shares and was therefore entitled to a lien on the shares until this sum was paid back to him. On 19 October 1995, finding the reasoning and the cogency of the first instance court in line with domestic law, the Court of Cassation rejected the applicant’s appeal. On 9 February 1996 the Court of Cassation dismissed the applicant’s request for rectification. It held that the transfer of limited liability company shares was governed by Article 182 of the Code of Obligations and therefore the burden of proof was on the applicant to show that it had not received any consideration in return for the shares. As the applicant failed to do so, the Court of Cassation held that the decisions of the Commercial Court and the Court of Cassation were in line with domestic law. This decision was served on the applicant on 13 March 1996. On 25 February 1992 the applicant filed a further application with the İstanbul Commercial Court for a declaration that 8,888 of its shares in AN Graphics had been unlawfully transferred into the name of Mr Nadir. On 24 March 1995 the Commercial Court ruled that the transfer of 8,888 shares to Mr Nadir by the applicant was null and void. The court further held that pursuant to Article 182 of the Code of Obligations, the burden of proof was on the applicant to show that no consideration had been received from the defendant in return for the shares. As the applicant failed to adduce any evidence in support of its allegations, the Commercial Court granted the defendant a lien over the shares and made the restoration of shares dependent on the payment of GBP 2,222,000. On 19 October 1995 the Court of Cassation, finding the cogency and reasoning of the first instance court in line with domestic law, upheld the judgment dated 24 March 1995. On 25 December 1995 the applicant requested the rectification of this decision. Subsequently, on 7 March 1996 the Court of Cassation dismissed the applicant’s requests, stating that the transfer of shares was governed by Article 182 of the Code of Obligations and the national courts had acted in accordance with this provision. On 21 February 1996 the Isle of Man High Court granted a declaration that the applicant had never received payment from Mr Nadir for the transfer of 32,000 shares in AN Graphics. In addition to the principal proceedings described in subsection (a) and (b) above, the applicant also initiated an action to establish and enforce its rights as a shareholder in AN Graphics including its right to participate in shareholders’ meetings. On 22 May 1995 the İstanbul Commercial Court dismissed the case. It recalled that pursuant to Article 417 of the Commercial Code, only the persons whose names are registered in the share register could be considered shareholders. The court observed that the applicant’s name was not registered in the share register and that no proceedings had been brought to amend the share register. Accordingly, the court ruled that the applicant was not entitled to convene a shareholders’ meeting. This decision was upheld by the Court of Cassation on 4 October 1996. The applicant asked for rectification of this decision. During these proceedings, the applicant also requested disqualification of three of the members of the Court of Cassation. The applicant maintained that these three judges had previously sat in the proceedings concerning the establishment of the applicant’s ownership to the 8,888 shares in AN Graphics, and had acted in favour of Mr Nadir. On 4 October 1996 the Court refused the applicant’s request basing itself on Article 39 of the Court of Cassation Act, which provides that motions for disqualification will not be heard where disqualification can result in the loss of quorum. On the same day, the court also refused the applicant’s request for rectification.
| 0
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train
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001-97847
|
ENG
|
SVN
|
ADMISSIBILITY
| 2,010
|
ZUREJ v. SLOVENIA
| 4
|
Inadmissible
|
Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra
|
1. The applicant, Mr Vojko Žurej, is a Slovenian national who was born in 1960 and lives in Dramlje. He was represented before the Court by Ms M. Končan Verstovšek, a lawyer practising in Celje. The Slovenian Government (“the Government”) were represented by their Agent, Mr Lucijan Bembič, State Attorney-General. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 31 December 2001 an insurance company (Zavarovalnica Triglav d.d.) instituted proceedings against the applicant. 4. On 1 February 2006 the Celje District Court (Okrožno sodišče v Celju) gave a first-instance judgment. An appeal was lodged. 5. On 1 February 2007 the Celje Higher Court (Višje sodišče v Celju) gave a judgment upholding the first-instance court’s judgment. The applicant lodged an appeal on points of law. 6. On 22 June 2009 the applicant lodged a supervisory appeal under the Act on the Protection of the Right to a Trial without undue Delay (“the 2006 Act”) with the Supreme Court. The supervisory appeal was rejected. 7. On 19 August 2009 the applicant lodged a motion for deadline. The proceedings are still pending before the Supreme Court. 8. On 15 December 1994 the applicant instituted proceedings against an insurance company (Zavarovalnica Triglav d.d.) seeking compensation for damages occurred at the working place. 9. On 25 May 1996 the Celje District Court issued a judgment. The applicant appealed. 10. On 13 February 1997 the Celje Higher Court issued a decision and remitted the case for re-examination. 11. On 7 December 1998 a first-instance judgment was issued. The applicant appealed. 12. On 16 December 2001 the Celje Higher Court upheld the first-instance court’s judgment. The applicant lodged an appeal on points of law. 13. On 8 May 2001 the Supreme Court gave a judgment. The judgment was served on the applicant on 8 June 2001. 14. For relevant domestic law see the Court’s decision Žunič v. Slovenia (no. 24342/04, 18 October 2007). 15. In addition, the Amendments to the Act on the Protection of the Right to a Trial without undue Delay (Zakon o spremembah in dopolnitvah Zakona o varstvu pravice do sojenja brez nepotrebnega odlašanja, Official Journal, No. 58/2009) came into effect on 11 August 2009. Section 8 provides that a just satisfaction claim can be lodged after the termination of the proceedings before the Supreme Court, provided that the acceleratory remedies, that is supervisory appeal and a motion for a deadline, have been exhausted.
| 0
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train
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001-5382
|
ENG
|
DNK
|
ADMISSIBILITY
| 2,000
|
ROEPSTORFF v. DENMARK
| 4
|
Inadmissible
|
Christos Rozakis
|
The applicant is a Danish national, born in 1969. He resides in Herlev, Denmark. Before the Court he is represented by Mr Christian Harlang, a lawyer practising in Copenhagen. A. The facts of the case, as submitted by the parties, may be summarised as follows. At the material time the applicant was employed as a baker by FDB (fællesforeningen af Danmarks Brugsforeninger). He was also a member of the trade union NNF (Nærings- og Nydelsesmiddelarbejderforbundet) and his employment was governed by a collective labour agreement between the NNF and the FDB. On 11 September 1994 the applicant left his place of work in circumstances which remain in dispute. The following day he received a letter from his employer by which his employment was terminated. The applicant protested against the dismissal and contacted his trade union. Following a discussion with the applicant the NNF sent a letter to the FDB on 23 September 1994 protesting against the applicant’s dismissal. Subsequently the NNF discussed the settlement with the applicant who, following consultations with his lawyer, could not approve the text but requested certain additional guarantees as to employment, wages and seniority. On 1 November 1994 another meeting was held between the representatives of the NNF and the FDB. The applicant was aware of the date of this meeting but did not participate this time either. According to the minutes of this meeting the above settlement was upheld with two additional guarantees in respect of the applicant’s salary and seniority. The settlement was approved and signed by the representatives of the NNF and the FDB on 7 November 1994. On the same date the City Court of Glostrup (Civilretten i Glostrup) received a writ by which the applicant instituted proceedings against the FDB claiming 35,426.89 DKK representing his salary from 11 September until 31 October 1994. It appears that at this moment in time the applicant still considered himself employed by the FDB. However, subsequently he refused the FDB’s offer of reemployment in accordance with the above settlement since he had found other employment. In the proceedings before the City Court the FDB maintained, in particular, that the applicant could not submit further claims as he was bound by the settlement reached between the NNF and the FDB. The applicant maintained, however, that this argument would, if upheld by the court, amount to a violation of his rights as secured to him by Article 6 § 1 of the Convention. The City Court held an oral hearing in the case where the applicant, assisted by counsel, was heard. The court furthermore heard three witnesses. On the basis of an evaluation of the available evidence the City Court pronounced judgment in favour of the FDB on 3 May 1995. The judgment reads, in its relevant part as follows: (Translation) “The settlement between the NNF and the FDB is final and it has been approved by [the representative of the NNF] on behalf of [the applicant]. It is noted in this connection that the NNF by virtue of the [collective labour] agreements has a standing and irrevocable authorisation to reach such settlements on behalf of its members. On the basis of the evidence submitted the terms of the settlement must be considered fulfilled. Accordingly, the court finds in favour of the defendant. It is noted in this respect that [the applicant] will not be precluded from claiming damages from the NNF during a possible lawsuit, if [he] finds that during the settlement negotiations the NNF did not take proper care of [his] interests. Thus, the settlement ought not to be set aside with reference to Article 6 § 1 of [the Convention]. ...” The applicant appealed against the judgment to the High Court of Eastern Denmark (Østre landsret) which also held a hearing during which the applicant and the witnesses were heard again. On 15 January 1996 the High Court upheld the City Court’s judgment. The judgment reads, in its relevant parts, as follows: (Translation) Two judges ... opine as follows: We find it established that [the applicant] himself requested his union NNF to secure that the dispute concerning his dismissal should be solved by negotiations between the NNF and the FDB. It must have been clear to [the applicant] that a solution in the case would hereafter be found in accordance with the rules governing labour disputes. Furthermore, we find it established that between the parties in question agreement was reached on the disputed settlement. We find hereafter that, also without [the applicant’s] acceptance of the settlement, the NNF has had authorisation to reach it with binding effect for [the applicant]. With this reasoning we vote for [upholding the judgment]. Judge ... opines as follows: First, I do not find that the NNF by virtue of the collective labour agreements has a standing and irrevocable authorisation to enter into an agreement as the one in question which does not concern a labour market dispute. Second, I find it established that the reservation in the draft settlement referred to the NNF's approval as well as that of [the applicant]. ... I do not find it established that, when he received confirmation of [the NNF's] approval of the settlement, [the representative of the FDB] believed or had any reason to believe that the agreement had not been approved by [the applicant] ... . Thus, the agreement is binding on [the applicant]. With this reasoning I vote as the majority. ...” On 14 May 1996 the Board of Leave to Appeal (Procesbevillingsnævnet) rejected the applicant's request for leave to appeal to the Supreme Court (Højesteret). B. Relevant domestic law and practice The Danish labour market is to a high extent governed by collective agreements concluded between the labour market parties. About 80 per cent of all employees are organised and nearly 90 per cent of all employees are covered by collective agreements. As a consequence of the high rate of organisation, pay and working conditions in Denmark are mainly regulated by collective agreements between labour market partners. Pay and working conditions may further be agreed individually between the individual employee and the employer. There is an interaction among the three elements - collective agreements, individual agreements and legislation - when it comes to identifying the rights of an employee in relation to the employer. A collective agreement has effect within the occupation field covered by the agreement. An employer who has concluded or adhered to a collective agreement has a duty in relation to the trade union to pay the employees the wage and salary fixed in the collective agreement whether the employee is or is not a member of the organisation concerned. However, a non-organised employee may not invoke rights under the collective agreement, but only under his or her individual agreement. On the other hand employees have no independent and direct rights which can be invoked under the collective agreement. Through the membership of a trade union, the union is considered empowered to act on behalf of its members. As regards cases settled within the machinery set up for settlement of labour disputes, i.e. by arbitration or by the Labour Court, the right to take legal action is vested in the organisation which is a party to the agreement. It is also the organisation which decides about the subject-matter of the case. Before the ordinary courts of law it is the individual employee who has the right to sue. As regards rights based on legislation the rule is that such rights may always be enforced by the ordinary courts of law. The courts will hear the case whether or not the employee is a member of a trade union or other organisation. In such cases it is always the individual employee who is entitled to bring the action and who may dispose of the subjectmatter of the case. If the rights of the employee are based on a collective agreement, the legal situation may be summarised as follows: If the employee is not organised and thus not attached to any organisation, but his or her rights are, nevertheless, based on a collective agreement, the practice is that the ordinary courts of law will hear the case. Reference is made to U 85/800 V and U 1983/730H. If the employee is organised, the starting point is that the matter should be settled by the special machinery for settlement of labour disputes, i.e. by arbitration or by the Labour Court. In such cases the general rule is that the organisations have the full disposal of the subject-matter and the right to take legal action. An exception from this general rule follows from section 11, subsection 2, of the Labour Court Act which reads as follows: (Translation) “An employee shall, however, be entitled to bring an action for award of outstanding wages in the ordinary courts of law unless the organisation, in proceedings before the Labour Court, has waived this right on behalf of the employee or when the failure to pay wages is related to a labour market dispute.” The ordinary courts of law have, inter alia on the basis of this provision, heard cases involving collective agreements, even if the organisation has failed to proceed with the case within the framework of the machinery set up for the settlement of labour disputes, cf. U85/997Ø, U54/935H and U94/953H in which express reference was made to the right of access to court under Article 6 of the Convention. Any decision (judgment) of the Labour Court is final. The Labour Court is the first and only level of jurisdiction, since no appeal lies against its decisions. Consequently, the judgments of the Labour Court are directly enforceable in accordance with the rules of the Administration of Justice Act relating to enforcement of judicial awards, cf. Section 20 of the Act.
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train
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001-59511
|
ENG
|
FRA
|
GRANDCHAMBER
| 2,001
|
CASE OF KRESS v. FRANCE
| 1
|
No violation of Art. 6-1 with regard to the fact that the Government Commissioner's submissions were not communicated;Violation of Art. 6-1 on account of the Government Commissioner's participation in the deliberations;Violation of Art. 6-1 on account of the length of proceedings;Non-pecuniary damage - finding of violation sufficient (fairness);Non-pecuniary damage - financial award (as regards length);Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses award - Convention proceedings
|
Luzius Wildhaber;Nicolas Bratza
|
11. On 8 April 1986 the applicant, who was then aged 44, underwent a gynaecological operation under general anaesthetic at Strasbourg Hospital. 12. On wakening, she suffered a neurological syndrome. In the days that followed she suffered a further vascular accident and her shoulder was scalded when a cup of tea was upset. Since then she has been 90% disabled; she is hemiplegic, has difficulty coordinating her upper limbs, can speak only with difficulty and suffers from double vision. 13. On 27 May 1986 the applicant made an urgent application to the President of the Strasbourg Administrative Court seeking the appointment of an expert. In an order of 28 May 1986 the President appointed an expert, who filed a report on 2 June 1986 in which he concluded that there had not been any medical error. 14. On 6 August 1987 (after a preliminary claim of 22 June 1987 had been refused) the applicant brought an action for damages against Strasbourg Hospital in the Strasbourg Administrative Court. 15. In submissions of 21 October 1987 the applicant criticised the findings set out in the report of 2 June 1986 and applied for a detailed, thorough expert opinion. 16. In letters of 10 November 1988 and 11 January 1989 the applicant’s lawyers sought to have the case set down for hearing. The clerk of the Administrative Court replied (in letters of 18 November 1988 and 13 January 1989) that on account of the backlog of work, it was not currently possible to foresee the date on which the case might be set down for hearing. 17. The hearing was eventually listed for 19 April 1990. 18. In a judgment delivered on 25 May 1990 the Strasbourg Administrative Court ordered further inquiries into the facts with a view to commissioning a report from a panel of two experts. 19. On 23 October 1990 the experts filed the following findings: “As regards the cerebral arterial thromboses that occurred on 8 April and 17 April 1986, nothing in Mrs Kress’s clinical condition or in the results of the tests made them foreseeable. The treatment of this complication was appropriate to the patient’s state of health and in accordance with the current state of scientific knowledge. As regards the scald on the left shoulder, the experts attribute it to a lack of assistance and organisation in the department.” 20. The applicant criticised that expert report and in reasoned submissions of 22 March 1991 quantified the damage she had sustained. 21. At the request of Strasbourg Hospital the hearing set down for 4 April 1991 was postponed to 13 June 1991. 22. In a judgment delivered on 5 September 1991 the Strasbourg Administrative Court assessed the amount of damage sustained by the applicant as a result of her scalded shoulder at 5,000 French francs and dismissed the rest of the claim for damages. 23. The applicant appealed against that judgment to the Nancy Administrative Court of Appeal. In a judgment of 8 April 1993 that court dismissed the appeal on the ground that whatever the seriousness of the consequences of the surgical operation, the circumstances of the hospitalisation had not disclosed any failure to provide information about the nature of the operation and its foreseeable consequences or any negligence or presumption of negligence in the organisation or running of the relevant department. 24. On 11 June 1993 the applicant, represented by a member of the Court of Cassation and Conseil d’Etat Bar, appealed on points of law against that judgment to the Conseil d’Etat and filed full pleadings on 11 October 1993. She referred to a judgment of the Judicial Assembly of the Conseil d’Etat of 9 April 1993 that had been delivered in the meantime (the Bianchi judgment of 9 April 1993, Revue française de droit administratif 1993, p. 574), in which no-fault liability in hospital cases had been extended to cover the risks of treatment, and in her sole ground of appeal relied on the fact that the hospital should in her case have been found liable without fault. She submitted that there had been a causal link between the operation and the damage, that the existence of the risk had been known, even if it was statistically only a very slight one, and that she had, within the meaning of the Bianchi judgment, sustained extremely serious special damage. 25. Strasbourg Hospital filed a defence on 12 September 1994 and the applicant replied on 16 January 1995. The hospital lodged a rejoinder on 10 March 1995. 26. The case was heard in public on 18 June 1997 by the 5th and 3rd sections sitting together and considered on the basis of a report by the 5th section. After hearing the observations of the reporting judge, those of the parties’ lawyers and, last, the Government Commissioner’s submissions, the Conseil d’Etat reserved judgment. Counsel for the applicant then produced a memorandum for the deliberations (note en délibéré) in which it was argued that the Government Commissioner had wrongly expressed doubts as to the extreme seriousness of the applicant’s afflictions since the operation of 8 April 1986. 27. In a judgment delivered on 30 July 1997 the Conseil d’Etat dismissed the applicant’s appeal on the following grounds: “It appears from the evidence submitted to the courts below that Mrs Kress underwent a hysterectomy on 8 April 1986 at the Strasbourg Regional Hospital Centre. Following that operation, which took place normally, post-operative complications, which supervened twice, caused serious, disabling after-effects and damage for which Mr and Mrs Kress sought compensation, relying in the courts below on mistakes that they alleged had been made by the hospital. Before this Court Mr and Mrs Kress have maintained for the first time that the hospital should have been held liable without fault. On the basis of the unappealable assessment it made of the facts, the Nancy Administrative Court of Appeal inevitably held that no-fault liability on the part of the Strasbourg Regional Hospital Centre for the damage relied on by Mrs Kress had not been made out. In so doing, that court did not make any error of law, seeing that it is apparent from the evidence submitted to the courts below that the circumstances in which such liability could be incurred did not obtain.” 28. The history of France’s administrative courts is essentially that of the Conseil d’Etat. In 1790 the Constituent Assembly implemented the theory of the separation of powers and organised matters so that the executive would not be subject to the judiciary. It preserved the ancien régime principle that administrative authorities should be tried by a special court, in accordance with the idea that judging the administrative authorities was “also an administrative act”. Such a special court was set up by the Consulate in 1799. This was the Conseil d’Etat, which was instituted by Article 52 of the Constitution of 22 Frimaire Year VIII (13 December 1799). It was given responsibilities in two areas: administrative (contributing to the drafting of major enactments) and judicial (settling disputes connected with the administrative authorities). 29. In 1849 an Act vested it with the administration of “delegated” justice (la justice déléguée), and thereafter it accordingly gave its rulings “in the name of the French people”. During the Third Republic the Conseil d’Etat acquired an organisational pattern that it still largely has today. Its function was laid down in the Act of 24 May 1872, which amended the 1849 Act and established delegated justice permanently. 30. The main feature of the post-war period was the organisation of the administrative jurisdiction. In 1953 the administrative courts (of first instance) succeeded the prefectural councils, which had existed since 1799. The 1958 Constitution, which contains only three Articles – 64, 65 and 66 – relating to the judiciary, in particular, to provide that judges (but not members of State Counsel’s offices) are irremovable, does not mention the Conseil d’Etat or the other administrative courts under this head. The Act of 31 December 1987, which came into force in 1989, added to the courts vested with administrative jurisdiction the administrative courts of appeal, to which the bulk of the appellate jurisdiction was transferred. From these new courts and various specialised courts, such as the Court of Audit, an appeal on points of law lies to the Conseil d’Etat as the supreme administrative court. 31. The judges of the administrative courts have a special status different from that of the judges of the ordinary courts and the members of State Counsel’s Office at those courts. They are governed by the general rules on the civil service; however, they are in practice both independent and irremovable (see paragraph 35 below). In 1980 a decision of the Constitutional Council (22 July 1980, Official Gazette of 24 July, p. 1868) established the existence and independence of the administrative jurisdiction as being among the fundamental principles recognised in the laws of the Republic having constitutional rank. 32. The Conseil d’Etat has about 300 members, two-thirds of whom work within the Conseil and one-third outside it. Its nominal President is the Prime Minister and in practice the Vice-President of the Conseil d’Etat presides. By Article 13, third paragraph, of the Constitution, concerning the powers of appointment of the President of the Republic, all the senior members of the Conseil d’Etat (conseillers d’Etat) are appointed by decree of the President of the Republic adopted in Cabinet, while the junior legal assistants (auditeurs) and the middle-ranking maîtres des requêtes are appointed by an ordinary presidential decree, under section 2 of the Ordinance of 28 November 1958 on civil and military appointments. 33. The members of the Conseil d’Etat are recruited in one of two ways: through competitive examination or directly from other parts of the civil service. Legal assistants, recruited through competitive examination, are promoted to the rank of maître des requêtes after about three years’ service and become conseillers d’Etat about twelve years later. External appointments are subject to approval by the Vice-President of the Conseil d’Etat. 34. The status of the members of the Conseil d’Etat is not so much laid down in writing as guaranteed in practice. As regards written rules, mention must be made of the decree of 30 July 1963 laying down the rights and duties of members of the Conseil d’Etat. These rights and duties are very similar to those applying to the civil service (and, in particular, no provision is made for irremovability), with a number of exceptions: no provision is made for assessment, no promotions table is drawn up and an advisory committee replaces both the Joint Administrative Committee and the Joint Technical Committee. 35. It is thus, rather, practice which provides the guarantees enjoyed by the members of the Conseil d’Etat. Three traditional practices are both very long-standing and decisive: firstly, the Conseil d’Etat and its members are managed internally by the Executive Committee (bureau) of the Conseil d’Etat, consisting of the Vice-President, the six division presidents and the Secretary-General of the Conseil d’Etat, without any outside interference. In particular, there is no distinction in the Conseil d’Etat between judges and members of State Counsel’s Office as there is in the ordinary courts, where the members of State Counsel’s Office are subordinated to the Minister of Justice. Secondly, even though there is no written provision guaranteeing the irremovability of members of the Conseil, that guarantee exists in practice. Lastly, while promotion is theoretically by selection, it is in practice – by a custom which goes back to the middle of the nineteenth century – strictly by seniority, and this guarantees the members of the Conseil d’Etat great independence, vis-à-vis both the political authorities and the authorities of the Conseil d’Etat themselves. 36. Most duties within the Conseil d’Etat can be performed by members of any grade. Thus the duties of Government Commissioner, although generally given to maîtres des requêtes, can also be carried out by auditeurs or conseillers d’Etat. 37. The Act of 31 December 1987 instituted a National Council of Administrative Courts and Administrative Courts of Appeal, whose membership ensures that it is independent and representative. The Council has a general advisory role in relation to matters concerning the staff of all the administrative courts (individual measures affecting judges’ careers, promotion and discipline). 38. Procedure in the administrative courts has developed essentially under the influence of the courts themselves. It attempts to achieve a compromise between the public interest – represented in the proceedings by the administrative authorities – and the interests of individuals, who must be effectively protected from misuse of public authority. The procedure is inquisitorial, written and inexpensive, and its distinctive feature is that one of the parties is a public body. 39. The Conseil d’Etat consists of five administrative divisions (Interior, Finance, Public Works, Social, and Report and Research) and a Judicial Division, itself subdivided into ten sections (sous-sections). 40. Where a case has been assigned to a section, the president of the section appoints one of its members as reporting judge to examine the case. After careful study of the file the reporting judge draws up a draft decision. The draft is accompanied by a memorandum whose purpose is to set out the reasoning leading from the application to the draft. The memorandum includes a consideration of admissibility issues (including jurisdiction and verification that there is no defect rendering the application inadmissible as a matter of public policy) and must answer each ground raised in the application, with reference either to the evidence or to legal provisions or to case-law. The reporting judge appends to the memorandum a copy of the provisions and case-law relied on in the draft decision. The file subsequently goes to the reviser, an office assumed in each section by the president or one of the other two assesseurs constituting the bench. The reviser re-examines the evidence and forms a view as to how the case should be decided. He may himself prepare another draft decision in the event of disagreement with the reporting judge. Once the draft decision has been revised, the case is listed for consideration at a preparatory sitting of the section, at which it will be discussed in the presence of the Government Commissioner, who does not, however, take part in the vote on the draft. Only when the draft decision has been adopted by the section will the file be forwarded to the Government Commissioner to enable him either to prepare his submissions or to ask for a fresh preparatory sitting to be convened or for the case to be transferred to a differently constituted court. 41. The institution of Government Commissioner dates from an ordinance of 12 March 1831. Originally, as its name indicates, it was designed to represent the government’s point of view, but that function very rapidly disappeared (at the latest in 1852). The title has remained but is now a misnomer. Since then the institution has become, to the outside observer, one of the most distinctive features of French administrative justice, in particular because Government Commissioners rapidly established themselves as judicial officers totally independent of the parties. The Government Commissioner plays a traditionally very important role in the creation of administrative case-law and most of the major judicial innovations have come about as a result of celebrated submissions by the Government Commissioner. Furthermore, given that the judgments of the Conseil d’Etat are always drafted very elliptically, it is often only by reading the submissions of the Government Commissioner, where published, that one can discern the ratio decidendi of the judgments. 42. By the terms of Decree no. 63-766 of 30 July 1963 on the organisation and functioning of the Conseil d’Etat, Government Commissioners are taken from among the maîtres des requêtes and auditeurs at the Conseil d’Etat or, exceptionally, from among the conseillers. By Article R 122-5 of the Administrative Courts Code, they are appointed by a decree of the Prime Minister, adopted on a proposal by the Minister of Justice, after being put forward by the Vice-President of the Conseil d’Etat in consultation with the division presidents. In practice, the Conseil d’Etat’s proposals are always endorsed. Appointment as Government Commissioner – which is not a rank – is for an unlimited duration but a Government Commissioner cannot remain in post for more than ten years and in practice does not generally do so for more than two or three years. There are two Government Commissioners for each of the ten sections that make up the Judicial Division but there is no hierarchy of Government Commissioners, who do not constitute a separate “corps”. 43. The Government Commissioner is a member of the Conseil d’Etat who is attached to the section from which the bench designated to hear a case is constituted and he attends – without voting and generally without speaking – the sitting at which the cases are prepared for trial, when the cases are presented by the reporting judges, and he receives a copy of the draft judgment adopted by the section and revised by the reviser. When his view of a case differs from that of the section, he can come and discuss it with the section at another preparatory sitting. If the disagreement remains and he considers that the case is of sufficient importance, he has the right (rarely exercised in practice) to request that the case should be referred to the Judicial Division or to the Judicial Assembly (Article 39 of the decree of 30 July 1963 on the organisation and functioning of the Conseil d’Etat). Only after that will he prepare his submissions for the actual trial, which is open to the public. These submissions, which are generally exclusively oral ones, are not communicated either to the parties or to the reporting judge or to the members of the trial bench. 44. It has become an established practice to communicate to lawyers who so request, before the hearing, the general tenor of the submissions which the Government Commissioner will make at the hearing. In view of the number of cases to be tried (about 500 a year for each Government Commissioner), the Government Commissioner’s submissions, which remain his exclusive property, are often solely oral. He has complete freedom as to whether or not to place those he has decided to put in writing in the Conseil d’Etat’s archives or to publish them in important cases as an annex to Conseil d’Etat judgments reported in the official reports or in legal periodicals. 45. At the hearing the Government Commissioner is under an obligation to make his submissions, which must be reasoned, since he is not allowed to say that he wishes to leave matters to the court’s discretion. 46. The Government Commissioner’s role at the hearing was described as follows by a former member of the Conseil d’Etat, T. Sauvel, in 1949: “Once the case has reached the public hearing, and the reporting judge has read his report, which is merely a summary of the evidence and makes no mention of the section’s opinion, and the lawyers have made oral submissions if they considered it appropriate, the Commissioner stands up and is the one who speaks last, even after counsel for the defence. He sets out the whole case, making a critical analysis of all the grounds and of all the case-law that could be relied on; often he will indicate how the case-law has developed, highlighting the stages it has already gone through and hinting at possible future developments. Lastly, he will submit that the application should be dismissed or allowed. He does so in his own name, without any obligation to share the section’s opinion or to take instructions either from Principal State Counsel (for there is none) or from any superior, presiding judge or minister. He is answerable only to his own conscience. He is a vital cog in the machinery of administrative procedure, which perhaps owes its real distinctiveness to him. The submissions in many cases go far beyond the bounds of the individual case and amount to legal treatises, to which litigants and commentators will long refer.” 47. In the terms used by the Conseil d’Etat itself (10 July 1957, Gervaise, Recueil Lebon, p. 466, reiterated on 29 July 1998 in Esclatine) the Government Commissioner’s function is “to set out for the Conseil the issues which each application raises for decision and to make known, by making his submissions completely independently, his own assessment, which must be impartial, of the facts of the case and the applicable rules of law, together with his opinion as to whether the manner in which, according to his conscience, the case submitted to the Court to which he belongs should be disposed of.” 48. At the hearing, therefore, the parties to the case cannot speak after the Government Commissioner, since he speaks after counsel for the opposing parties have addressed the court. Even if they are not represented by a lawyer, they do, however, have the possibility, hallowed by usage, of sending the trial bench a “memorandum for the deliberations” to supplement the observations they have made orally or to reply to the Government Commissioner’s submissions. This memorandum for the deliberations is read out by the reporting judge before he reads out the draft judgment and before the discussion begins. 49. Furthermore, it is settled case-law of the Conseil d’Etat that if the Government Commissioner were to raise a ground – even one involving an issue of public policy – that had not been relied on by the parties during the proceedings, the presiding judge would stay the proceedings, communicate the ground to the parties so that they could present argument on it, and relist the case for a fresh hearing some weeks later, since grounds raised of the court’s own motion have to be notified to the parties. 50. After the public hearing it is customary for the Government Commissioner to attend the deliberations but he has no vote. As a general rule, he intervenes orally only to answer any specific questions that are put to him. He is, after all, the member of the Court who has seen the case file most recently and is therefore supposed to have the most detailed knowledge of it. 51. Cases in the Conseil d’Etat may be tried either by a single section (and in that event all the members of the trial bench already know the case) or by combined sections (in that event, four members, representing the section which prepared the case for trial, out of the nine judges who have to deliberate on it know the case) or by the Judicial Division or the Judicial Assembly (so-called solemn constitutions of the court for hearing the most important cases), in which only the President and the reporting judge, out of the seventeen or twelve judges who will have to deliberate on it, know the case. 52. Lastly, it should be pointed out that there are Government Commissioners not only at the Conseil d’Etat but also at the other administrative courts (of first instance and appeal) and at the Jurisdiction Disputes Court. Furthermore, the function of Advocate General at the Court of Justice of the European Communities was closely modelled on the institution of Government Commissioner, with the difference that under Article 27 § 2 of the Rules of Procedure of the Court of Justice, only the judges who sat at the hearing may take part in the deliberations – to the exclusion, therefore, of the Advocate General. 53. In connection with the hearing of a reference for a preliminary ruling made to the Court of Justice at the European Communities by a Dutch court (the Arrondissementsrechtbank te ‘s-Gravenhage), Emesa Sugar (Free Zone) N.V. (a company), relying on Article 6 § 1 of the Convention, applied on 11 June 1999 to submit written observations after the Advocate General had delivered his opinion at the hearing on 1 June. 54. In an order of 4 February 2000 the Court of Justice refused that application on the following grounds: “... 11. In accordance with Articles 221 and 222 of the EC Treaty, the Court of Justice consists of Judges and is assisted by Advocates General. Article 223 lays down identical conditions and the same procedure for appointing both Judges and Advocates General. In addition, it is clear from Title I of the EC Statute of the Court of Justice, which, in law, is equal in rank to the Treaty itself, that the Advocates General have the same status as the Judges, particularly so far as concerns immunity and the grounds on which they may be deprived of their office, which guarantees their full impartiality and total independence. 12. Moreover, the Advocates General, none of whom is subordinate to any other, are not public prosecutors nor are they subject to any authority, in contrast to the manner in which the administration of justice is organised in certain Member States. They are not entrusted with the defence of any particular interest in the exercise of their duties. 13. The role of the Advocate General must be viewed in that context. In accordance with Article 222 of the EC Treaty, his duty is to make, in open court, acting with complete impartiality and independence, reasoned submissions on cases brought before the Court of Justice, in order to assist the Court in the performance of the task assigned to it, which is to ensure that in the interpretation and application of the Treaty, the law is observed. 14. Under Article 18 of the EC Statute of the Court of Justice and Article 59 of the Rules of Procedure of the Court, the Opinion of the Advocate General brings the oral procedure to an end. It does not form part of the proceedings between the parties, but rather opens the stage of deliberation by the Court. It is not therefore an opinion addressed to the judges or to the parties which stems from an authority outside the Court or which ‘derives its authority from that of the procureur général’s department ...’ (judgment in Vermeulen v. Belgium, cited above, paragraph 31). Rather, it constitutes the individual reasoned opinion, expressed in open court, of a Member of the Court of Justice itself. 15. The Advocate General thus takes part, publicly and individually, in the process by which the Court reaches its judgment, and therefore in carrying out the judicial function entrusted to it. Furthermore, the Opinion is published together with the Court’s judgment. 16. Having regard to both the organic and the functional link between the Advocate General and the Court ..., the aforesaid case-law of the European Court of Human Rights does not appear to be transposable to the Opinion of the Court’s Advocates General. 17. Moreover, given the special constraints inherent in Community judicial procedure, connected in particular with its language regime, to confer on the parties the right to submit observations in response to the Opinion of the Advocate General, with a corresponding right for the other parties (and, in preliminary ruling proceedings, which constitute the majority of cases brought before the Court, all the Member States, the Commission and the other institutions concerned) to reply to those observations, would cause serious difficulties and considerably extend the length of the procedure. 18. Admittedly, constraints inherent in the manner in which the administration of justice is organised within the Community cannot justify infringing a fundamental right to adversarial procedure. However, no such situation arises in that, with a view to the very purpose of adversarial procedure, which is to prevent the Court from being influenced by arguments which the parties have been unable to discuss, the Court may of its own motion, on a proposal from the Advocate General or at the request of the parties, reopen the oral procedure, in accordance with Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information, or that the case must be dealt with on the basis of an argument which has not been debated between the parties ... 19. In the instant case, however, Emesa’s application does not relate to the reopening of the oral procedure, nor does it rely on any specific factor indicating that it would be either useful or necessary to do so.”
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train
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001-90362
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ENG
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UKR
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CHAMBER
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CASE OF KATS AND OTHERS v. UKRAINE
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Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
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Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva
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6. The first and second applicants, Mr Oleg Volodymyrovych Kats and Mrs Tetiana Yakivna Kats, born in 1946, are the father and mother of the late Ms Olga Olegivna Biliak (hereinafter Olga Biliak), who was born in 1971 and died in 2004. The third applicant, Mr Stanislav Ihorovych Beliak, born in 1993, is the son of Olga Biliak. All three applicants live in Kyiv. 7. Olga Biliak had a history of mental illness and drug addiction. At the time of her arrest, she was a registered schizophrenic and infected with HIV (Human Immunodeficiency Virus). 8. On 18 November 2002 the Solomyanskyy District Police Department of Kyiv (Солом'янське РУ ГУ МВС України в м. Києві – “the District Police Department”) instituted criminal proceedings against Olga Biliak and S. for assaulting and robbing a certain A. On 15 January 2003 the cases against Olga Biliak and S. were disjoined. S. was subsequently sentenced to seven years' imprisonment for assault and robbery committed jointly with “another person”. 9. On 16 April 2003 Olga Biliak was charged with robbery. 10. On the next day the Solomyanskyy District Court of Kyiv (Солом'янський районний суд м. Києва – “the Solomyanskyy Court”) ordered Olga Biliak's pre-trial detention. 11. On 27 August 2003 the Solomyanskyy Court convicted Olga Biliak of robbery and sentenced her to eight and a half years' imprisonment. 12. On 25 November 2003 the Kyiv City Court of Appeal (Апеляційний суд м. Києва – “the Court of Appeal”), following an appeal by Olga Biliak, quashed this judgment, remitted the case for further investigation and decided – without stating any grounds – that she should remain in detention. From that point on, according to the applicants, no investigative action was taken and Olga Biliak was on no occasion visited by the investigator. 13. On 1 February 2004 Olga Biliak died in pre-trial detention. 14. On 23 August 2004 the District Police Department discontinued the proceedings against Olga Biliak, in view of her death. 15. On 30 December 2004 the Solomyanskyy Court quashed the District Police Department's ruling and ordered the rehearing of the case. On 29 March 2005 the Court of Appeal dismissed a prosecution appeal against this decision. 16. On 31 January 2006 the Solomyanskyy Court found Olga Biliak guilty of robbery and discontinued the proceedings against her because of her death. 17. On 7 November 2006 the Court of Appeal upheld Olga Biliak's conviction. On the same date that court issued a separate ruling to the effect that, in breach of Article 165-1 of the Code of Criminal Procedure and section 20 of the Pre-trial Detention Act, the authorities had failed to implement immediately the investigator's decision to release Olga Biliak (see paragraph 45 below). The Court of Appeal decided to bring this violation of the domestic law to the attention of the Kyiv City Prosecutor (прокурор міста Києва). 18. On 14 June 2007 the Supreme Court of Ukraine quashed the decisions of 31 January and 7 November 2006, including separate rulings, and remitted the case for fresh consideration to the first-instance court. The proceedings are apparently still pending. 19. The applicants complained on many occasions that the real reason behind Olga Biliak's prosecution was revenge for her refusal to cooperate with officers T. and N. from the Anti-Narcotics Police Department (Відділ по боротьбі з незаконним обігом наркотиків), who had allegedly proposed that she sell drugs seized by the police from street dealers. 20. The applicants have requested on numerous occasions that criminal proceedings be instituted against the above-mentioned police officers; however, all their requests have been rejected. 21. On 14 April 2003 Olga Biliak was arrested and brought to the District Police Department, where she was held until 22 April 2003. 22. On 18 April 2003 (according to some documents not until 18 December 2003), she was examined and X-rayed at the Institute of Physiotherapy and Pulmonology (Інститут фізіатрії і пульмонології). She was found to be healthy. 23. On 22 April 2003 Olga Biliak was transferred to Kyiv City Pre-Trial Detention Centre no. 13 (Київський слідчий ізолятор № 13 – “the SIZO”). 24. Upon her arrival at the SIZO, Olga Biliak was examined by prison doctors, whom she informed that she had been using drugs since 1996. No other complaints were made during this examination. According to the Government, she refused to take an HIV test. She was found to be generally healthy and fit for detention in the SIZO. 25. On 7 May 2003 Olga Biliak wrote in her diary that she had pneumonia. 26. On 18 May 2003 a panel of psychiatrists examined Olga Biliak in the SIZO. It established that she was suffering from schizophrenia, but considered that a more detailed assessment was necessary. 27. On 26 May 2003 the Solomyanskyy Court ordered an in-patient psychiatric examination of Olga Biliak. On the same day she was transferred to a psychiatric hospital. 28. On 18 June 2003, following completion of the psychiatric assessment, Olga Biliak was transferred back to the SIZO and again placed in the shared cell, where she remained until her death on 1 February 2004. 29. The psychiatric panel drew up a report on 1 July 2003. They concluded that Olga Biliak was suffering from a mental disorder but at the time of the offence would have been in control of her actions. 30. On 18 July, 11 August and 20 November 2003 Olga Biliak complained to a SIZO physician that her legs were swollen. She was examined and, since no abnormalities were revealed, no treatment was prescribed for her complaints. However, on the last of these dates Olga Biliak was diagnosed with pyelonephritis. 31. In early September 2003 Olga Biliak wrote in her diary that she had again developed pneumonia. 32. On 25 September 2003 her gastric ulcer worsened. She vomited undigested food and then blood. A paramedic (фельдшер) prescribed “medical activated charcoal” (активоване вугілля). 33. On 26 September 2003 the first applicant lodged a request with the SIZO seeking to have his daughter hospitalised. He attached to that request a letter of 25 September 2003 in which Kyiv City Hospital no. 5 confirmed that Olga Biliak had been HIV-positive since 1999 and had undergone related treatment. 34. On 1 and 21 October 2003 Olga Biliak was examined by a neuropathologist and a psychiatrist, who identified some problems with her mental health. 35. On 3 October 2003 the Governor of the SIZO and the head of its medical unit informed the first applicant that Olga Biliak had been examined by a cardiologist and a neuropsychiatrist and had been diagnosed with vasomotor neurosis (вегето-судинна дистонія) (a dysfunction in the nervous system affecting the blood vessels) and a stomach ulcer. According to them, she did not require inpatient treatment in hospital. 36. On 5 October 2003 Olga Biliak was prescribed a diet. 37. On 1 December 2003 Olga Biliak complained to a prison doctor of general weakness and pain in her lungs. She was diagnosed with chronic bronchitis and multi-drug dependence. 38. According to the entries of December 2003 in Olga Biliak's diary, her state of health started to deteriorate seriously. On 4 December 2003 she had shaking chills and a rising temperature. On 9 December 2003 Olga Biliak wrote that she was losing weight rapidly. On 10 December 2003 she complained of nervous exhaustion, stating that she could hardly eat, being only able to keep down tiny pieces of food. She continued to lose weight very quickly. On 11 December 2003 Olga Biliak recorded that a high temperature had caused her fifth sleepless night. Constant weakness, drowsiness and a high temperature prevented her from going outside for walks. On 12 December 2003 Olga Biliak started to lose herself in time. On 13 December 2003, with her temperature constantly around 40oC, Olga Biliak was given a couple of fever-reducing pills. Her only friend in the cell prepared her tea in the morning, coffee and biscuits during the day and milk with sugar and butter in the evening. On 15 December 2003 Olga Biliak was given another pill and informed that she was to have her lungs X-rayed. Her body temperature that day was 39oC, subsequently receding to 35oC. On 17 December 2003 Olga Biliak was scheduled for an X-ray and given another fever-reducing pill. 39. From mid-December 2003 the applicants and Olga Biliak's lawyer repeatedly requested the authorities to release her on account, inter alia, of her rapidly deteriorating state of health. On 13 January 2004 the Deputy Prosecutor of the Solomyanskyy District of Kyiv (заступник прокурора Солом'янського району м. Києва) and, on 19 January 2004, the investigator dealing with her case, rejected those complaints without addressing the health issues. 40. On 6 January 2004 Olga Biliak complained of stomach pain and was diagnosed with chronic gastritis. 41. On 12 January 2004 Olga Biliak again complained to a physician that she had stomach pains and had vomited undigested food. 42. On 21 January 2004 Olga Biliak was examined by a cardiologist, a psychiatrist and the Head of the Medical Board of the Prison Department (начальник медичного відділу управління Державного департаменту виконання покарань), and underwent an X-ray and a blood test. The X-ray revealed no abnormalities. According to the blood test, there was serious inflammation in Olga Biliak's body. She was diagnosed with acute bronchitis, chronic gastritis, anaemia, cachexia and mental disorders. Her state of health was assessed as being of “medium seriousness”. She was prescribed some anti-inflammatory and light tranquilising drugs, as well as some antibiotics. Olga Biliak was asked if she was HIV-positive. She replied that she was not and refused to take a HIV test. However, that was the date when, according to the Government, the prison doctors started to suspect that she was HIV-positive. 43. On 22 January 2004 the Governor of the SIZO applied to the Head of the District Police Department, stating that Olga Biliak's poor state of health prevented her from participating in any investigative actions and that she needed to be admitted to hospital urgently. He asked that the investigative authorities consider the possibility of her release on an undertaking not to abscond. 44. On 28 and 30 January 2004 Olga Biliak was examined by a SIZO physician. Her state of health was again assessed as being of “medium seriousness” and a recommendation was made to “continue treatment”. 45. On 29 January 2004 the investigator of the District Police Department ordered Olga Biliak's release on health grounds. From the documents submitted by the parties, it is unclear when exactly this decision was received by the SIZO. One available copy of the decision has a stamp of the SIZO on the reverse side and a handwritten date – “30.01.2004”. However, another copy of the decision bears a SIZO stamp for incoming correspondence with the number 2954 and an incoming date of 2 February 2004. 46. On 1 February 2004 at 9.15 p.m. Olga Biliak was visited by a prison doctor who gave her a painkiller and an anti-spasmodic drug. At 9.55 p.m. Olga Biliak died. The death certificate issued on the same day indicated bilateral pleurisy as the cause of death. According to the Government, Olga Biliak's death was caused by acute heart failure. 47. The applicants provided two colour photographs of Olga Biliak's body, which show that she had been in an advanced state of exhaustion when she died. 48. Immediately after Olga Biliak's death, the applicants lodged a criminal complaint against the SIZO staff for negligence. 49. During the investigation into the applicants' complaint, the investigator questioned a SIZO physician, S., who had treated her, and the head of the SIZO medical unit. S. submitted that the deceased had been examined on a number of occasions; the last examination took place on 30 January 2004. According to him, at that time there were no grounds for placing Olga Biliak on the medical ward. She was found to be suffering from bronchitis, drug addiction, anaemia and cachexia. Taking into account her state of health, he had recommended her release. 50. The head of the medical unit testified that on her arrival at the SIZO Olga Biliak had been examined and found to be suffering from drug addiction and certain psychiatric problems (such as hysteria), but in general her state of health had been considered satisfactory. The instructions of the SIZO physician were fully complied with and there had been no reason to transfer her to the SIZO medical wing. 51. The head of the medical unit further stated that on 21 January 2004 he had examined Olga Biliak himself and found her state of health to be satisfactory. On the same day she was examined by the Head of the Medical Board of the Prison Department who diagnosed her with “possible AIDS, acute bronchitis, drug addiction and anaemia” and considered that she should be released on medical grounds. 52. The eight inmates who had shared the cell with Olga Biliak before her death claimed that during her detention she was frequently attended to by doctors and paramedics, and that her health had been satisfactory. Their written testimonies given to the Head of the SIZO are all very brief and drafted using the same style and expressions. 53. According to the autopsy report of 25 March 2004 Olga Biliak died from HIV-related advanced purulent pneumonia. The autopsy also revealed a number of bruises on her hands, legs, left cheekbone and chin. 54. In a decision of 30 April 2004 the investigator found that Olga Biliak's death was not caused by any violence or negligence, and decided not to institute criminal proceedings. 55. On 8 June 2004 the Kyiv Deputy Prosecutor instituted disciplinary proceedings against the employees of the SIZO administrative office for mishandling correspondence, since they had registered the decision of 29 January 2004 and handed it to the Head of the SIZO only on 2 February 2004, although it had been received on 30 January 2004. 56. On 14 June 2004 the Kyiv City Prosecutor's Office (Прокуратура м. Києва) rejected the applicants' request to set aside the decision of 30 April 2004, stating that the investigation had been thorough and complete. During her detention the deceased had had appropriate medical treatment, and had received food and medication from her relatives. Until 21 January 2004 the authorities had had no information about her HIV status. 57. On 18 June 2004, the Governor of the SIZO reprimanded the head of its registry for “antedating the letter from the investigator which contained Olga Biliak's release order”. 58. The applicants challenged the decision of 30 April 2004 before the Shevchenkivskyy District Court of Kyiv (Шевченківський районний суд м. Києва – “the Shevchenkivskyy Court”). On 16 December 2004 the court quashed that decision and ordered further inquiries, finding that the initial investigation had been inadequate and incomplete. It ordered an official postmortem examination of the body and sought to clarify the following issues: whether Olga Biliak, given her state of health, had been fit for detention in the SIZO; whether she had received proper medical treatment when in custody; whether she would have survived if she had been taken quickly to hospital; exactly when prison doctors had started to treat her health problems; the time and cause of death. 59. Following this decision, the Shevchenkivskyy District Prosecutor's Office of Kyiv (Прокуратура Шевченківського району м. Києва – “the Shevchenkivskyy Prosecutor's Office”) requested that the authorities of the SIZO carry out additional inquiries into the circumstances of the death of Olga Biliak. Having received no reply, on 21 February 2005 the Shevchenkivskyy Prosecutor's Office decided against instituting criminal proceedings on the ground that there was no indication that her death had been caused by violence or that any other parties had been involved in her death. According to the applicants, they were not informed of this decision. 60. On 21 March 2005 the applicants inquired about the progress of proceedings in the case. In a letter of 11 April 2005 the Kyiv City Prosecutor's Office informed them that the investigations were still ongoing. 61. In August 2005 the applicants, in the course of proceedings concerning their civil action for damages against the SIZO (see paragraphs 68-74 below), learned of the Shevchenkivskyy Prosecutor's Office's decision of 21 February 2005. On 28 September 2005 the Shevchenkivskyy Court, following an application by the applicants, quashed that decision and ordered further investigations. The court found, in particular, that none of the actions indicated in the decision of 16 December 2004 had been taken. 62. It appears that the prosecution authorities were not informed of this decision and, on 17 January 2006, the Kyiv City Prosecutor's Office quashed the February 2005 decision of the Shevchenkivskyy Prosecutor's Office of its own motion and ordered reinvestigation. 63. In the course of the additional investigations the Shevchenkivskyy Prosecutor's Office ordered that further medical evidence be obtained. 64. On 17 November 2006 the Kyiv City Forensic Medical Bureau (Київське міське бюро судово-медичної експертизи – “the Bureau”) issued a report in which it stated that Olga Biliak's death was caused by the hematogenously disseminated tuberculosis affecting the lungs, liver, spleen and other parts of the body, which led to purulent necrotising pneumonia. All these diseases had developed against the background of the concurrent HIV-infection. The lack of correct diagnosis had resulted in a failure to provide appropriate medical treatment; therefore, the death of Olga Biliak had been indirectly caused by the actions of the SIZO officials. 65. On 22 December 2006 the Deputy Prosecutor of the Shevchenkivskyy District of Kyiv requested that the Bureau carry out further examinations with a view to establishing whether Olga Biliak had required urgent hospitalisation in October 2003 and in January 2004 and whether she had received adequate medical assistance during her detention in the SIZO. 66. However, on 25 December 2006 the investigator from the Shevchenkivskyy Prosecutor's Office, taking into account the fact that the reply from the Bureau could not be received before the expiry of the statutory time-limit for reaching a decision on a criminal complaint, decided not to institute criminal proceedings into the death of Olga Biliak as the evidence in the case file did not show that her death had been caused by violence or by the negligence of the SIZO staff. 67. On 12 July 2007 the Shevchenkivskyy Court, acting on an appeal lodged by the applicant, quashed this decision on the ground that the investigating authorities had failed to follow the instructions set out in that court's decisions of 16 December 2004 and 28 September 2005. The court ordered that further investigations into the death of Olga Biliak be carried out. The proceedings are apparently still ongoing. 68. On 21 July 2004 the applicants sued the SIZO for non-pecuniary damage incurred on account of the inadequate medical treatment of Olga Bilaik and the failure to hospitalise or release her on medical grounds. They also claimed compensation for burial expenses. 69. On 27 October 2006 the Shevchenkivskyy Court partially allowed these claims. It found, inter alia, that the prison authorities had learned of Olga Bilaik's HIV status on 26 September 2003 from her father's letter. The court further indicated that although the relevant regulations provided that each newly admitted detainee should be examined and interviewed in relation to AIDS or HIV infection, this had never been done in respect of Olga Bilaik. The Shevchenkivskyy Court also established that, contrary to the domestic law, she had not been X-rayed within three days of her arrival at the SIZO. She did not undergo that examination until 18 December 2003. 70. The court further indicated that on 30 January 2004 the Head of the Disrict Police Department had requested the SIZO to bring Olga Biliak to the District Police Department on 2 February 2004. According to the SIZO incoming mail register this request has been received on 30 January 2004. The decision of 29 January 2004 to release Olga Biliak was registered only on 2 February 2004 with the incoming mail number 2954. 71. The Shevchenkivskyy Court concluded that the applicants had suffered distress on account of the inadequate medical assistance offered to their daughter and mother in the SIZO. The court further stated that: “It should be noted that [the finding of Olga Bilaik's lack of medical treatment in the SIZO] does not mean that there is a causal link with Olga Bilaik's death, the circumstances of which have not been established during the hearings and are currently being considered by the Shevchenkovsky District Prosecutor's Office of Kyiv in the context of the criminal investigation into the death of Olga Bilaik.” 72. The applicants were awarded 20,000 Ukrainian hryvnas (UAH) in total for non-pecuniary damage. The claim for burial expenses was rejected as unsubstantiated. 73. The SIZO and the applicants appealed against this judgment. 74. On 24 May 2007 the Kyiv City Court of Appeal quashed the judgment of 27 October 2006 and remitted the case for fresh consideration on the ground that the first-instance court had failed to identify the medical staff who had examined Olga Biliak, diagnosed her, prescribed her treatment, etc., and to decide whether they should have participated in the proceedings 75. The relevant extract of the Constitution of Ukraine provides: Article 27 “Every person has the inalienable right to life. No one shall be arbitrarily deprived of life. The duty of the State is to protect human life. ...” Article 28 “Everyone has the right to respect for his or her dignity. No one shall be subjected to torture, cruel, inhuman or degrading treatment or punishment that violates his or her dignity. ...” “Human and citizens' rights and freedoms shall be protected by the courts. Everyone shall be guaranteed a right to challenge in court the decisions, actions or omissions of bodies of State power, bodies of local self-government, officials and officers. ... Everyone shall have a right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law.” Article 56 “Everyone shall have a right to compensation from public or municipal bodies for losses sustained as a result of unlawful decisions, acts or omissions by public or municipal bodies or civil servants in the performance of their official duties.” 76. The Code requires a competent authority to institute criminal proceedings if there is a suspicion that a crime has been committed. That authority is under an obligation to carry out all measures provided for by law to establish the facts and to identify those responsible and secure their conviction (Article 4). 77. Article 94 of the Code provides that criminal proceedings shall be instituted in the following cases: “Criminal proceedings shall be instituted following: (1) applications or communications from ... individuals; ... (5) direct detection of signs of a crime by a body of inquiry, investigation, a prosecutor or a court. A case can be instituted only when there is sufficient information indicating a crime.” No criminal proceedings can be brought in the absence of a corpus delicti (Article 6). 78. According to Article 165-1 § 3 of the Code, the decision of the body of inquiry, investigator, prosecutor or court to apply, change or discontinue a preventive measure (including pre-trial detention) should be communicated to the person concerned immediately. 79. Article 236-1 of the Code provides: “Within seven days of notification, a decision of the body of inquiry, investigator or prosecutor not to institute criminal proceedings or a refusal of the higher prosecutor to quash such a decision can be appealed against by an interested party or their representative to the district (town) court within whose area of jurisdiction the authority which took the decision falls...” 80. The relevant part of Article 236-2 of the Code provides: “An appeal against the decision of the body of inquiry, investigator or prosecutor not to institute criminal proceedings shall be examined [by a court] in a single-judge formation within ten days of being lodged. The judge shall request the materials on the basis of which the decision not to institute criminal proceedings was made, examine them and inform the prosecutor and the appellant of the date on which the hearing of the appeal is listed. Having examined the case, the judge ... may take one of the following decisions: (1) to set aside the decision not to institute criminal proceedings and to remit the case for further preliminary inquiries... (2) to dismiss the appeal ...” 81. Articles 1166 and 1167 of the Civil Code, as in force since 1 January 2004, provide for the possibility to claim pecuniary and non-pecuniary damages inflicted as a result of the unlawful decisions, actions or inactivity of an individual or a legal entity, including State bodies. 82. Article 201 § 1 (4) of the Code of Civil Procedure provides in its relevant part: “The court must suspend its examination of a case if ...it is impossible to hear that case before the termination of another set of civil, criminal or administrative proceedings.” 83. Article 20 § 4 reads as follows: “Rulings, judgments or decisions granting release shall be implemented immediately upon their receipt by the detention centre.” 84. In accordance with Section 6.1.3 of the Rules, all persons should undergo an initial medical examination on their arrival at the SIZO. The results of this examination are entered in the SIZO medical register. During the examination the doctor should inform the detainee about the possibility of undergoing a HIV test. 85. The relevant extracts from the European Prison Rules read as follows: “Medical services 26. 1. At every institution there shall be available the services of at least one qualified general practitioner. The medical services should be organised in close relation with the general heath administration of the community or nation. They shall include a psychiatric service for the diagnosis and, in proper cases, the treatment of states of mental abnormality. 2. Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals. Where hospital facilities are provided in an institution, their equipment, furnishings and pharmaceutical supplies shall be suitable for the medical care and treatment of sick prisoners, and there shall be staff of suitably trained officers. ... 30. 1. The medical officer shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with hospital standards, all sick prisoners, all who report illness or injury and any prisoner to whom attention is specially directed. 2. The medical officer shall report to the director whenever it is considered that a prisoner's physical or mental health has been or will be adversely affected by continued imprisonment or by any condition of imprisonment.” 86. The relevant extract from the Report of the CPT on a visit to Ukraine from 24 November to 6 December 2002 reads as follows:
| 1
|
train
|
001-99176
|
ENG
|
POL
|
CHAMBER
| 2,010
|
CASE OF GRADEK v. POLAND
| 4
|
Violation of Art. 8
|
Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
|
5. The applicant was born in 1972 and lives in Łódź. 6. On 20 October 2004 the Łódź District Court ordered the applicant's pre-trial detention for a period of fourteen days. The court referred to the reasonable suspicion that the applicant was guilty of fraud while acting in an organised group. 7. On 6 June 2006 the applicant was arrested. On 13 June 2006 the Łódź District Court ordered his detention for a period of three months. The court held that there was a reasonable suspicion that the applicant had committed the offences with which he had been charged (including establishing and leading an organised criminal group). Furthermore, he had confessed to the charges. The court also stressed that the detention was necessary in order to ensure the proper course of the proceedings, in particular as the applicant had been in hiding. 8. In July his detention was extended until 6 November 2006. The court repeated the reasons previously given. 9. On 14 June and 3 July 2006 the applicant's wife, M.G., asked for permission to visit her husband in prison. On 20 June and 5 July 2006 respectively, the Łódź Regional Prosecutor refused her requests. The prosecutor made handwritten notes on M.G.'s applications – “no permission” and “permission refused” respectively (“brak zgody”, “nie wyrażam zgody”). 10. On 24 July 2006 the applicant was again refused permission to be visited by his wife and children by the Piotrków Trybunalski District Court. The prosecutor made a handwritten note on the applicant's motion “permission refused” (“nie wyrażam zgody”). 11. On 24 September 2006 the applicant was visited by his daughter. 12. On 26 October 2006 the Łódź District Court extended the applicant's detention until 6 May 2007. The court held that the original reasons for his detention were still valid. The court also referred to the likelihood of a heavy sentence and the fact that the applicant had acted in a criminal group. The court further refused the applicant's request for release. 13. On 21 February 2007 the Łódź District Court refused the applicant's application for release and the replacement of detention by more lenient preventive measures. The court referred to the grounds given in previous decisions. 14. The trial began on 4 April 2007. There were sixteen other coaccused in the proceedings. The prosecutor asked the court to hear 106 witnesses. 15. At the hearing held on 29 May 2007 the applicant again asked for the preventive measure to be changed. The court refused his request and extended the detention until 31 July 2007. 16. Between 8 June 2007 and 2 May 2008 the applicant was visited by his wife on twelve occasions. 17. The applicant's detention was subsequently extended on several occasions, in particular on 23 August and 5 October 2007. 18. On 8 May 2008 the applicant was released from detention. 19. It would appear that the proceedings are pending. 20. The relevant domestic law and practice concerning the imposition of pre-trial detention (aresztowanie tymczasowe), the grounds for its extension, release from detention and the rules governing other “preventive measures” (środki zapobiegawcze) are set out in the Court's judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006, and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006. 21. Article 217 § 1 of the Code of Execution of Criminal Sentences of 1997, as applicable at the material time, provided as follows: “A detainee is allowed to receive visitors, provided that he obtains permission from the authority at whose disposal he remains [investigating prosecutor at the investigative stage or from the trial court once the trial has begun]. If the detainee remains at the disposal of several authorities, it is necessary to obtain permission from all of them unless they decide otherwise.” 22. The judgment was given following a constitutional complaint lodged by the Ombudsman, alleging that Article 217 § 1 of the Code of Execution of Criminal Sentences had been incompatible with a number of constitutional provisions, including the principle of protection of private and family life (Article 47 of the Constitution), the principle of proportionality (Article 31 § 3 of the Constitution), Article 8 of the ECHR and Article 37 of the UN Convention of the Rights of the Child. The Constitutional Court's judgment became effective on 8 July 2009, on the date of its publication in the Journal of Laws (Dziennik Ustaw). 23. The Constitutional Court ruled that Article 217 § 1, in so far as it did not specify the reasons for refusal of family visits in pre-trial detention, was incompatible with the above provisions. The court held that this provision did not indicate with sufficient clarity the limitations on a detainee's constitutional right to protection of private and family life. The court also considered that Article 217 § 1 was incompatible with the Constitution in so far as it did not provide for a possibility to appeal against the prosecutor's decision to refuse a family visit in pre-trial detention. 24. On 5 November 2009 the parliament adopted amendments to Article 217 of the Code of Execution of Criminal Sentences. In particular, subparagraphs 1a-1f were added. These provisions provide in particular that a detainee is entitled to at least one family visit per month. In addition, they indicate clearly the conditions for refusing a family visit to a detainee and provide an appeal procedure against such a refusal. The amendments enter into force on 8 June 2010. 25. The relevant extracts from the Recommendation read as follows: “Part II Conditions of imprisonment Contact with the outside world 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. 24.3 National law shall specify national and international bodies and officials with whom communication by prisoners shall not be restricted. 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. 24.5 Prison authorities shall assist prisoners in maintaining adequate contact with the outside world and provide them with the appropriate welfare support to do so. ”
| 1
|
train
|
001-82625
|
ENG
|
NLD
|
ADMISSIBILITY
| 2,007
|
BAH v. THE NETHERLANDS
| 4
|
Inadmissible
|
David Thór Björgvinsson
|
The applicant, Mr Adul Bah, claims to be a Sierra Leonean national who was born in 1980. At the time when the application was lodged he was held in detention in Soesterberg. He is represented before the Court by Mr P.A. Blaas, a lawyer practising in ‘s-Hertogenbosch. The respondent Government are represented by their Agent, Mr R.A.A. Böcker, of the Netherlands Ministry for Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant entered the Netherlands approximately two years before the events complained of. He lodged a request for asylum and was met with a refusal. He remained in the Netherlands as an illegal alien. On 3 March 2004 the applicant was apprehended. An officer of the Aliens Police (Vreemdelingenpolitie), acting on behalf of the Minister for Aliens Affairs and Integration (Minister voor Vreemdelingenzaken en Integratie) and in accordance with Article 59 of the 2000 Aliens Act (Vreemdelingenwet), placed the applicant in aliens’ detention (vreemdelingenbewaring) for expulsion purposes on public order grounds, namely the suspicion that the applicant was seeking ways to evade expulsion as he had no identity papers, he had failed to leave the country within the time allowed him for that purpose, he had no fixed abode, was suspected of having committed a criminal act, had no adequate means of subsistence and was not lawfully staying in the Netherlands. The Regional Court of The Hague was notified by the Minister of the detention order on 5 March 2004. In accordance with Article 94 of the 2000 Aliens Act, this counted as an automatic appeal. This notification-appeal was heard before the Regional Court on 12 March 2004. On 18 March 2004 a single-judge Chamber of the Regional Court gave a decision dismissing the appeal. The decision noted that the applicant had relied on the European Court’s judgment in the case of Shamsa v. Poland (nos. 45355/99 and 45357/99, 27 November 2003), but held that, given the provisions of Article 94 of the 2000 Aliens Act, there was an adequate guarantee that the judge would take a speedy decision about the lawfulness of the applicant’s detention and order his release if his detention was found unlawful. Given the reasons on which it was based, the applicant’s placement in aliens detention was found justified, and it was further found that the Netherlands authorities were pursuing the applicant’s effective removal from the Netherlands with the required diligence, given that in the meantime the procedure for obtaining a laissez-passer from the Sierra Leonean authorities had been set in motion. The applicant lodged an appeal against the decision of 18 March 2004 with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State) on 22 March 2004. Again relying on the Court’s Shamsa judgment, he only raised one complaint, namely that the Regional Court had unjustly failed to acknowledge that persons placed in aliens’ detention must – like persons detained in the context of criminal proceedings – be heard promptly, that is no later than three days and fifteen hours, before an independent tribunal. As he had only been heard after ten days, the Regional Court should have found this delay too long and, consequently, should have ordered his release. On 13 May 2004, following a hearing held on 14 April 2004, the Administrative Jurisdiction Division dismissed the further appeal and upheld the Regional Court’s decision. This ruling, in so far as relevant, reads: “The appellant has been placed in aliens’ detention for expulsion purposes, in accordance with Article 59 § 1 (a) of the 2000 Aliens Act. Therefore and on a statutory basis, an expulsion procedure within the meaning of Article 5 § 1 (f) of the Convention was pending against him. Pursuant to Article 94 §§ 1 and 2 of the 2000 Aliens Act, the placement in aliens’ detention at issue has been submitted for examination before the Regional Court within a delay of ten days. The judgment of the European Court of Human Rights [in the case of Shamsa v. Poland] of 27 November 2003, invoked by the [appellant], concerns the continued detention of aliens against whom an expulsion or extradition procedure was no longer pending, for which continued detention there was no legal basis. Consequently, the detention had lost its lawful character and thus did not fall within the scope of one of the permissible grounds of deprivation of liberty as listed in an exhaustive manner in Article 5 § 1 of the Convention. In this light, the Administrative Jurisdiction Division understands the judgment and in particular the reasoning set out in paragraph 59 in the sense that the Court – in assessing such detention – incorporates the rationale of Article 5 taken as a whole and, in that context, also considers relevant the guarantees for legal protection and legal certainty as incorporated in the third paragraph of [Article 5 of the Convention]. Noting this as well as the [decisions on admissibility taken by] the Court in the case Leaf v. Italy [no. 72794/01, 27 November 2003] and Vikulov and Others v. Latvia [16870/03, 25 March 2004], the Administrative Jurisdiction Division is of the opinion that the Court did not have the intention to consider Article 5 § 3 applicable by analogy to the detention of aliens in accordance with [Article 5 § 1 (f) of the Convention], which would also be at variance with the wording of [Article 5 § 3 of the Convention]. In this connection the Administrative Jurisdiction Division also finds of relevance that the Court, in its [decision on admissibility] in the case of Tekdemir v. the Netherlands (no. 46860/99, 1 October 2002) found that there was no reason for holding that there was a violation of Article 5 § 4 of the Convention, as the alien concerned who had been placed in aliens’ detention under the Aliens Act [as in force until 1 April 2001] could at any point in time challenge the lawfulness of [that] detention before the judge who should determine [this issue] speedily. The Court did not conduct an additional examination of the matter under [Article 5 § 3 of the Convention]. In accordance with Article 94 § 1 and Article 96 §§ 1 and 5 of the 2000 Aliens Act an alien can also at present file an appeal at any point in time against a decision imposing deprivation of liberty. The Administrative Jurisdiction Division therefore agrees with the Regional Court that the applicant’s reliance on [the Court’s Shamsa judgment] fails...” This ruling was published in the Immigration Law Reports (Jurisprudentie Vreemdelingenrecht; “JV”) 2004/290. Until 1 April 2001, the admission, residence and expulsion of aliens were regulated by the 1965 Aliens Act (Vreemdelingenwet; “the 1965 Aliens Act”). Further rules were set out in the 1966 Aliens Decree (Vreemdelingenbesluit), the Regulation on Aliens (Voorschrift Vreemdelingen) and the Aliens Act Implementation Guidelines 1994 (Vreemdelingencirculaire). The General Administrative Law Act (Algemene Wet Bestuursrecht) applied to proceedings under the 1965 Aliens Act, unless indicated otherwise in this Act. On 1 April 2001, the 1965 Aliens Act and the pertaining regulations were replaced by the 2000 Aliens Act, the 2000 Aliens Decree, the 2000 Regulation on Aliens and the 2000 Aliens Act Implementation Guidelines. Unless indicated otherwise in the 2000 Aliens Act, the General Administrative Law Act continued to apply to proceedings on requests by aliens for admission and residence. At the time of the events complained of, the 2000 Aliens Act, as relevant to the case, provided as follows: “1. If necessary in the interests of public order or national security so requires, [the competent Minister] may, for the purpose of expulsion (uitzetting), order the detention of an alien who: (a) is not lawfully resident; ...” “In deviation from Article 37 § 1 of the Act on the Council of State (Wet op de Raad van State), no appeal lies against a decision of the Regional Court ...: a. about a decision or act based on ... [Article 59 of the 2000 Aliens Act] ...” “1. Our [competent] Minister shall notify the Regional Court of a decision to impose deprivation of liberty as referred to in Article ... 59 ... [of the 2000 Aliens Act] no later than the third day after communication of the decision, unless the alien himself has lodged an appeal first. As soon as the Regional Court has received the notification, the alien shall be deemed to have lodged an appeal against the said decision imposing deprivation of liberty. The appeal shall also constitute a request for the award of damages. 2. The Regional Court shall immediately fix the time of a hearing. The hearing shall take place no later than the seventh day after the receipt of the written statement of appeal or the notification. ... In deviation from Article 8:42 § 2 of the General Administrative Law Act, the delay referred to in that Article cannot be prolonged. 3. The Regional Court shall give judgment orally or in writing. A written judgment shall be given within seven days of the conclusion of the hearing. In deviation from Article 8:66 § 2 of the General Administrative Law Act, the delay referred to in that Article cannot be prolonged. 4. If the Regional Court finds on appeal that the application or implementation of the decision [to impose deprivation of liberty] is contrary to this Act or is – on consideration of all the interests involved – not reasonably justified, it shall accept the appeal. In such a case the Regional Court shall order that the deprivation of liberty be terminated or the manner of its implementation altered.” Article 95 “1. In deviation from Article 84 under a., a ruling given by the Regional Court as referred to in Article 94 § 3 can be appealed before the Administrative Jurisdiction Division of the Council of State. ...” Article 96 “1. In case the Regional Court has rejected as unfounded an appeal within the meaning of Article 94 and the deprivation of liberty continues, Our Minister shall notify the Regional Court of the continuation of the deprivation of liberty no later than four weeks after the ruling within the meaning of Article 94 has been given, unless the alien himself has lodged an appeal first. As soon as the Regional Court has received the notification, the alien shall be deemed to have lodged an appeal against the decision to prolong the decision imposing deprivation of liberty. ” Article 94 was amended with effect from 1 September 2004. It now requires the Regional Court to be notified of the detention decision within twenty-eight days after its issuance unless the alien has lodged an appeal first, and the hearing of the appeal must take place no later than fourteen days after the Regional Court has received the written statement of appeal or the Minister’s notification. This amendment meant in practice a revival of the legal situation that existed before 1 April 2001 in respect of these two time-limits under the former 1965 Aliens Act and pertaining regulations (for further details, see Tekdemir v. the Netherlands (dec.), nos. 46860/99 and 49823/99, 1 October 2002, under “Relevant domestic law and practice”). Article 69 § 3 of the 2000 Aliens Act stipulates that there is no time-limit for filing an appeal within the meaning of Articles 94 and 96 of the 2000 Aliens Act and that an appeal referred to in Article 95 must be filed within one week. Accordingly, a person placed in aliens’ detention can in principle file as many appeals against this placement as he or she sees fit. When the lawfulness of a decision of placement in aliens’ detention has been determined for a first time, the examination of any subsequent appeal in this respect will be limited to the lawfulness of the continuation of the placement in aliens’ detention. Pursuant to Article 84 of the 2000 Aliens Act, no appeal to the Administrative Jurisdiction Division lies against a decision by the Regional Court on such a subsequent appeal (Administrative Jurisdiction Division, 1 November 2006, case no. 200607626/1). The hearing and determination of such a subsequent appeal are subject to the same mandatory time-limits as those for a first appeal (Regional Court of The Hague sitting in Groningen, 19 June 2006, case no. AWB 06/22632). According to a ruling given by the Administrative Jurisdiction Division on 11 February 2005 (JV 2005/172), the time-limit set out in Article 94 § 2 of the 2000 Act is of a strict mandatory nature. In the event that this time-limit has not been respected, the placement in aliens’ detention becomes unlawful on the day following the day on which this time-limit expired. As there is no statutory fixed maximum duration of a placement in aliens’ detention for expulsion purposes, an alien whose expulsion has been ordered can, in principle, remain in aliens’ detention for an unlimited period of time provided there are reasonable prospects for expulsion within the foreseeable future. However, it has been established in domestic caselaw that the interest of an alien to be released from aliens’ detention increases with the passage of time. Where a placement in aliens’ detention exceeds a period of six months, it is generally held that the alien’s interest in being released is greater than the interest in keeping him in detention for the purposes of expulsion. Depending on the specific circumstances of each case, this point in time may also be reached before or after six months have passed. It may be later when an exclusion order (ongewenstverklaring) has been imposed or where the alien concerned frustrates the determination of his identity or nationality, and it may be earlier where the alien concerned is unable to obtain travel documents for reasons beyond his or her control (see, Legal Uniformity Division (Rechtseenheidskamer) of the Regional Court of the Hague, case no. AWB 97/4849, 21 August 1997; and the Regional Court of The Hague sitting in Groningen, case no. AWB 06/22632, 19 June 2006).
| 0
|
train
|
001-94644
|
ENG
|
POL
|
CHAMBER
| 2,009
|
CASE OF KULIŚ AND RÓŻYCKI v. POLAND
| 2
|
Violation of Art. 10;Pecuniary damage - award;Non-pecuniary damage - award
|
Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
|
5. The applicants were born in 1956 and 1946 respectively. The first applicant lives in Łόdź. 6. The first applicant owns a publishing house named “Westa Druk” which publishes a weekly magazine, Angora, and its supplement for children, Angorka. The second applicant was the editor in chief of the magazine. 7. On 16 May 1999 Angorka published an article referring to an advertising campaign by a company, Star Foods, for its potato crisps. On the first page of the magazine there was a cartoon showing a boy holding a packet, with the name “Star Foods” on it, saying to Reksio – a little dog, a popular cartoon character for children – “Don’t worry! I would be a murderer too if I ate this muck!” (“Nie martw się – też bym był mordercą, gdybym jadł to świństwo!”). Above the cartoon, there was a large heading reading “Polish children shocked by crisps advertisement, ‘Reksio is a murderer’ (Reksio to morderca)”. 8. The article, printed on the second page of the magazine, read as follows: “Recently in Star Foods crisps [packets] stickers appeared which terrified parents and their children: ‘Reksio is a murderer’. In the [packets of] crisps from the company Star Foods, which are stocked on the shelves of almost all shops, stickers appeared recently which terrified parents and children. In the packets there are little pieces of paper bearing the slogan: “Reksio is a murderer”. Before the stickers appeared in the packets of crisps the company ordered a market study. One of the advertising agencies proposed slogans and sayings used every day by teenagers. Children, however, are terrified by those slogans. ... Prepared following ‘the Super Express’” 9. The above quoted article on the second page was accompanied by a small cartoon featuring two cats holding a packet with the word “crisps” on it and the dog Reksio in the background. One cat holds a piece of paper with the slogan “Reksio murderer” apparently taken out from the packet and says to the second cat - “surely, he is sometimes unpleasant, but a murderer?!” (“Owszem, nieraz bywa przykry, ale żeby od razu mordercą?!”). 10. On 2 November 1999 Star Foods (“the plaintiff”) lodged against both applicants a civil claim for protection of personal rights. The company sought an order requiring the defendants to publish an apology in Angora and Angorka for publishing a cartoon discrediting, without any justification, Star Foods products. They further sought reimbursement of their legal costs and payment by the applicants of 10,000 Polish zlotys (PLN) to a charity. 11. On 28 May 2001 the Łόdź Regional Court (Sąd Okręgowy) found for the plaintiff. The court ordered the applicants to publish apologies as sought in the statement of claim and to pay PLN 10,000 to a charity. The applicants were also ordered to pay the plaintiffs PLN 11,500 to reimburse the costs of the proceedings. The court considered that the cartoon in question had breached the personal rights of the plaintiff and discredited the products of the company. The words used by the applicants had an unambiguous meaning relating to disgust and repulsion and were strongly pejorative. Accordingly, the court concluded that the applicants had overstepped the threshold of permissible criticism, in particular in a magazine aimed at children. The court dismissed the applicants’ arguments that the cartoon had aimed to criticise the advertising campaign run by Star Foods and not their product. It considered that such an attack on the plaintiff’s personal rights could not have been justified even by the argument that their campaign was ill-considered. 12. The applicants appealed against the judgment. 13. On 21 March 2002 the Łόdź Court of Appeal dismissed the appeal and ordered the applicants to pay the plaintiffs PLN 2,500 to reimburse the costs of the appellate proceedings. It agreed with the lower court’s assessment that the critical statement had not concerned the style of advertisement adopted by Star Foods. Calling the product of the company “muck” was surely not a critical assessment of their advertising campaign but had been aimed at the product, the brand, and the good name of the company. The statement in question “I would be a murderer too if I ate this muck” contained an obviously negative assessment of the taste and quality of the product. Thus, the applicants’ action aimed to discredit, without justified grounds, the product of Star Foods and as such could not enjoy the benefit of legal protection. The appellate court also observed that the applicants had repeatedly relied on the interests of children to justify their actions, while they themselves had repeated, in the supplement for children, the slogan that in their opinion had had a negative impact on children’s emotions and had terrified them. 14. On 12 December 2002 the Supreme Court refused to examine the cassation appeal lodged by the applicants. 15. 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.” 16. Article 24 of the Civil Code provides for ways of redressing infringements of personal rights. According to that provision, a person facing the danger of an infringement may demand that the prospective perpetrator refrain from the wrongful activity, unless it is not unlawful. Where an infringement has taken place, the person affected may, inter alia, request that the wrongdoer make a relevant statement in an appropriate form, or claim just satisfaction from him/her. If an infringement of a personal right causes financial loss, the person concerned may seek damages.
| 1
|
train
|
001-102793
|
ENG
|
POL
|
ADMISSIBILITY
| 2,010
|
SIEDLECKI v. POLAND
| 4
|
Inadmissible
|
Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano
|
The main applicant, Mr Andrzej Siedlecki (“the applicant”), is a Polish national who was born in 1963 and lives in Płock. He was represented before the Court by Mr T. Włoczyk, a lawyer practising in Gliwice. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. The names and personal details of the remaining applicants (“the applicants”) and the facts pertaining to their cases are presented in the attached statements setting out the particular circumstances of each case. The facts of the case, as submitted by the parties, may be summarised as follows. On 10 January 2001 the applicant was committed to Zabrze Prison. After that date he was continuously detained in several penitentiary facilities. On 27 July 2009 he was released. The parties gave partly differing accounts of the conditions of the applicant’s detention. The applicant maintained that throughout his detention he had been held in overcrowded cells in conditions below the basic standard of hygiene. He further stated that in the Zabrze Prison detainees had been allowed to smoke in the central corridor from where the smoke had penetrated into the cells. The Government submitted that they could not confirm whether or not during his stay in the Zabrze Prison the applicant had been detained in cells with a surface area of at least 3 m² per person. They further stated that in all penitentiaries smoking had only been permitted in designated zones. The Government maintained that in the Zabrze Prison two smoking areas had been designated near the entrances to units and that the applicant had not been exposed to tobacco smoke during his detention in that establishment. The Government did not comment on the conditions of the applicant’s detention in the remaining detention establishments. The applicant lodged several complaints with the penitentiary authorities regarding the conditions of his detention. He did not bring a civil action in tort to seek compensation for the infringement of his personal rights. A detailed description of the relevant domestic law and practice concerning general rules governing conditions of detention in Poland and domestic remedies available to detainees alleging that conditions of their detention are inadequate are set out in the Court’s pilot judgments given in the cases of Orchowski v. Poland (no. 17885/04) and Norbert Sikorski v. Poland (no. 17599/05) on 22 October 2009 (see §§ 75-85 and §§ 45-88 respectively). More recent developments are described in the Court’s decision in the case of Łatak v. Poland (no. 52070/08) on 12 October 2010 (see §§ 25-54).
| 0
|
train
|
001-120588
|
ENG
|
ROU
|
ADMISSIBILITY
| 2,013
|
CÂRSTOIU v. ROMANIA
| 4
|
Inadmissible
|
Alvina Gyulumyan;Corneliu Bîrsan;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria
|
1. The applicant, Mr Dumitru Cârstoiu, is a Romanian national who was born in 1962 and lives in Bucharest. He was represented before the Court by Mr Ioan Stoicana, a lawyer practising in Bucharest. 2. The Romanian Government (“the Government”) were represented by their Agent, Mrs Catrinel Brumar, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant and his wife, A.A.C., had a child, A., born on 1 April 2005. On 24 November 2006 the Bucharest District Court granted the couple’s divorce and the mother was granted custody of the child. The applicant was ordered to pay child support and was granted the right to have personal relations with the child and contact rights, as follows: at the child’s home on Sundays from 4 p.m. to 7 p.m. and at the applicant’s home on the first and third Saturday of the month from 10 a.m. to 4 p.m. 5. Relations between the parties continued to deteriorate, and the contacts between the applicant and his former wife became increasingly turbulent, even in the presence of the child. It therefore became difficult for the applicant to see A. without a conflict occurring between the adults involved. 6. On 28 May 2008 the applicant brought an action for custody of his child, asking, alternatively, for an extension of his contact rights. He pointed out that he had not seen his son for one and a half years, as his former wife and her family had forbidden all contact. The Bucharest District Court gave judgment on 5 November 2008. It noted that the relations between the parents had deteriorated and that the mother was obstructing all contact between the father and his son, being inflexible and omitting to communicate important information about the child to the applicant. ’s request for modification of the visiting times. It ruled: “Dismisses the plaintiff’s requests for modification of the right to personal relations with the child, namely to accommodate the minor in [the plaintiff’s] home.” The court ordered A.A.C. to communicate with the applicant about the child and to allow them to speak on the telephone. 7. The applicant appealed, pointing out that not only had the court dismissed his claims, but it had also restricted his contact rights by no longer allowing him to take his son to his home. 8. On 14 May 2009 the Social Services and Child Protection Directorate of the Bucharest local council (“the Child Protection Authority”), acting at the County Court’s request, visited the applicant’s home, interviewed him, and concluded that he was in terms of his psychological and material situation a fit and proper person to take care of his child. 9. On 25 May 2009 the Bucharest County Court upheld the previous judgment, on the ground that the best interests of the child required that he remain resident with his mother; it gave no answer to the applicant’s representation about the restriction on his contact rights. 10. The applicant appealed on points of law, seeking mainly to be granted custody of the child. He did not expressly complain about the restriction of contact rights perceived by him. The Bucharest Court of Appeal dismissed his claims in a final decision of 11 November 2009. 11. On 19 November 2009 the applicant sought revision of the previous decision, on the ground that by limiting his visiting rights the courts had decided ultra petita, to his disadvantage. On 29 March 2010 the Bucharest County Court dismissed his request as out of time. The applicant did not appeal against that decision. 12. According to the applicant, his subsequent attempts to see the child remained unsuccessful, as, encouraged by the decision of 5 November 2008, the mother refused to allow him to enter her home or to take the child away with him. 13. On 7 September 2009 A.A.C. lodged a request for modification of the contact schedule. On 19 September 2012 the Bucharest District Court set contact hours for the applicant, every other weekend, on Saturdays and Sundays from 5 p.m. to 8 p.m. at the child’s home. Appeal proceedings are currently pending with the Bucharest County Court. 14. During the new custody proceedings, on 3 August 2010 the applicant requested by means of an urgent procedure (ordonanţă preşedinţială) a residence order in his favour, but on 7 October 2010 the Bucharest District Court dismissed that request, on the ground that a change in residence required serious consideration, which could not be done in an expeditious procedure. The decision was upheld by the Bucharest County Court in a final decision of 27 January 2011. 15. On 14 July 2011 the applicant lodged a new request for interim measures, seeking modification of the contact schedule. In particular, he complained that relying on the judgment of 5 November 2008, A.A.C. had since refused to allow him to take the child to his home. 16. The Bucharest District Court gave its ruling on 28 November 2011. It examined the previous decisions rendered in the matter of residence and contact rights between the parties, and evidence of the recent deterioration of the former spouses’ personal relations, as well as the written answers given by A.A.C. to the questionnaire addressed to her by the applicant through the intermediary of the court, on the manner in which she was allegedly obstructing the exercise of his contact rights. The court also took note that the applicant refused to answer the questions addressed to him by A.A.C. through the court on the manner in which he was exercising his contact rights. 17. On the basis of the evidence in the file, the court noted that custody and contact rights had been established by the decision of 24 November 2006, and that on 5 November 2008 additional requests by the applicant had been dismissed, apart from the right to obtain information about the child and to speak with him on the telephone. The court further observed that on several occasions the applicant had breached the contact schedule by trying to take the child outside the times set in the court order or by not returning the child on time to the mother’s home, and that the mother had been forced to seek help from the authorities (bailiffs and police) to get her child back. It also noted that the applicant had exhibited violent behaviour towards the mother in the presence of the child, and that on several occasions he had tried to take the child from A.A.C. by force. Relying both on Article 8 of the Convention and on the provisions of the new Civil Code, the court stated that the right to maintain personal relations with the child could not be exercised to the detriment of the child’s best interest. The court reiterated that its role was to decide on a temporary agreement, as the merits of the residence rights were being examined by a different court. It noted the tense situation between the parents, and considered that it was not in the child’s best interest for them to have joint custody or for the applicant’s visiting rights to be extended. It therefore dismissed the applicant’s request. 18. In a final decision of 18 April 2012 the Bucharest County Court dismissed as out of time the appeal lodged by the applicant against the decision rendered by the District Court on 28 November 2011. 19. From 2008 on, the applicant and A.A.C. lodged several criminal complaints against each other, the applicant accusing his former wife of breaching his right to maintain personal relations with his child by not allowing him contact with his son, by denigrating him in front of the child, and by repeatedly changing the child’s place of residence, while A.A.C. accused the applicant of causing a public breach of the peace when trying to visit A. in her home, and of keeping the child longer than allowed by the court order. They were both fined for their behaviour, the prosecutor and criminal courts acknowledging the bad relations between the parents and finding that both of them had tried, after the divorce, to cut the other parent off from the child, thus failing on several occasions to respect the contact schedule. In addition, by a prosecutor’s decision of 20 July 2009 the applicant was fined for hitting O.G., who had tried to stop him from forcibly taking the child from A.A.C.’s arms on the way to his kindergarten. 20. In August 2007 the applicant sought the assistance of the Child Protection Authority to persuade the mother to comply with the court decisions granting him contact rights. A social worker visited A.A.C.’s home, assessed it as a suitable home for the child, advised the mother on the importance of allowing the child to maintain normal relations with both parents, and explained to her that the conflicts between her and her former spouse were jeopardising the child’s development. 21. In March 2008 the applicant made a new similar request. A social worker visited A.A.C. and the child in their new home and discussed the situation with the mother, drawing her attention to the child’s right to maintain relations with his father and the extended family, but also to the importance of protecting the child from any form of abuse or neglect. A.A.C. informed the Child Protection Authority that at that moment the applicant was exercising his contact rights at the child’s school, as each visit to her home ended in open conflict between the adults. 22. A.A.C. also sought the Child Protection Authority’s assistance in June 2008, when the applicant refused to return the child to her home after a visit. 23. The applicant and his former spouse continued to complain to the Child Protection Authority about various obstructions to their rights over the child. As a consequence, in April 2009 the experts of the Authority met with the parents to seek a workable solution for the exercise of their respective rights. A further meeting was held in August 2009. On both occasions the parents failed to reach a satisfactory compromise. 24. In various reports on the applicant’s case, the Child Protection Authority found that the child was developing well and that the mother was providing an excellent environment for his upbringing. 25. The former spouses sent each other several notifications, through bailiffs’ offices (on 16 May and 29 October 2008 on behalf of the applicant and on 15 September 2008 on behalf of A.A.C.), asking for the contact schedule established by court orders to be adhered to. 26. The relevant domestic legal provisions are set out in Lafargue v. Romania, no. 37284/02, §§ 64-69, 13 July 2006, and Costreie v. Romania, no. 31703/05, §§ 55-58, 13 October 2009.
| 0
|
train
|
001-69169
|
ENG
|
ITA
|
ADMISSIBILITY
| 2,004
|
CATALDO v. ITALY
| 1
|
Inadmissible
| null |
The applicant, Mr Guido Antonio Cataldo, is an Italian national who was born in 1941 and lives in Benevento. He was represented before the Court by Mr S. Ferrara, a lawyer practising in Benevento. The Government were represented by their Agents, in which capacity Mr U. Leanza was followed by Mr I.M. Braguglia, and by their co-Agents, in which capacity Mr V. Esposito was followed by Mr F. Crisafulli. The facts of the case, as submitted by the parties, may be summarised as follows. In 1991 the Naples public prosecutor's office entered the applicant's name in the register of persons against whom criminal proceedings had been brought (registro degli indagati), on suspicion of forgery. On 8 July 1994 the public prosecutor's office requested that the applicant and twenty-nine other accused be committed for trial. The application erroneously gave his name as Vito Antonio instead of Guido Antonio. On 17 January 1995 the preliminary investigations judge listed the preliminary hearing for 30 March 1995. On 3 February 1998 the District Court noted the mistake and sent the case file back to the preliminary investigations judge for a hearing on 20 April 1998, which was later adjourned to 27 May 1998. On 27 May 1998 the preliminary investigations judge noted that the applicant had not been questioned and sent the file back to the public prosecutor's office. On 15 July 1998 the prosecuting authorities questioned the applicant. The preliminary hearing was then set for 3 November 1998. On 3 November 1998 the preliminary investigations judge ruled that he did not have jurisdiction ratione materiae and sent the file back to the public prosecutor's office. The subsequent course of the proceedings is not known, since the file is untraceable. On 18 June 2001 the Court informed the applicant of the entry into force, on 18 April 2001, of Law no. 89 of 24 March 2001 (hereafter “the Pinto Act”), which introduced into the Italian legal system a remedy against the excessive length of judicial proceedings. In a letter of 5 July 2001 the applicant informed the Court that he had applied to the Rome Court of Appeal for compensation under the Pinto Act and asked the Court to suspend the examination of his application until the end of the related proceedings. On 6 July 2001 the applicant did indeed submit a claim to the Rome Court of Appeal under the Pinto Act, complaining of the excessive length of the proceedings described above. He asked it to hold that there had been a violation of Article 6 § 1 of the Convention and to order the Italian State to make good the pecuniary and non-pecuniary damage he had sustained and to pay him costs and expenses. In particular, the applicant claimed 882,843.49 euros (EUR), made up of EUR 743,697.93 for loss of opportunity, EUR 103,291.38 for non-pecuniary damage, EUR 35,854.17 for the downgrading his employer had imposed on him and EUR 10,329.14 for costs and expenses. By a decision of 15 October 2001, deposited with the registry on 6 November 2001, the Court of Appeal found that a reasonable time had been exceeded. It refused the application regarding compensation for pecuniary damage, describing the applicant's claims as “speculative”, but awarded him, on an equitable basis, EUR 7,230.40 in compensation for non-pecuniary damage and EUR 1,394.43 for costs and expenses, plus interest. On 26 November 2001 the Court of Appeal's decision became enforceable. On 3 December 2001 the applicant served the Court of Appeal's decision on the respondent authority. In letters dated 14 February 2002 and 6 March 2002 the applicant requested payment of the sums due. On 18 July 2002 he served the respondent authority with a notice to pay. As the money was not forthcoming, he summoned the authority to appear in court on 20 January 2003. In a letter of 31 October 2003 the applicant asked the Court to resume its examination of his application. He explained that, in the end, he did not intend to appeal on points of law against the Court of Appeal's decision because he considered that he had very little prospect of success. In a decision of 21 October 2003, deposited with the registry on 22 October 2003, the Rome judge responsible for supervising the execution of judgments ordered the respondent authority to pay the sums due. On 10 December 2003 the applicant obtained payment of the amounts in question. The relevant domestic law and practice are described in Scordino v. Italy ((dec.) no. 36813/97, ECHR 2003-IV).
| 0
|
train
|
001-109033
|
ENG
|
MDA
|
ADMISSIBILITY
| 2,012
|
BADEA v. MOLDOVA
| 4
|
Inadmissible
|
Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
|
1. The applicant, Mr Viorel Badea, is a Moldovan national who was born in 1978 and lives in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 20 October 2005 the applicant was arrested by the police on suspicion of having stolen property. 4. He was allegedly subjected to psychological pressure in order to confess to the crime with which he had been charged, following which he made self-incriminating statements. He subsequently confirmed his statements and asked the courts to reduce his sentence in view of his family’s poor financial situation. He had allegedly had to steal in order to feed his family. He also claimed that he had never seen the State-appointed lawyer handling his case, who had signed all the documents relating to the matter after the fact in order to lend an appearance of legitimacy to the investigation. 5. On 21 November 2005 the applicant was convicted by the Ciocana District Court. That judgment was upheld by the Chişinău Court of Appeal on 19 January 2006. The applicant did not inform the Court of any subsequent judgments concerning his case. 6. After his arrest, the applicant was detained in Ciocana police station for three days in a cell measuring just over 1 sq. m together with four or five other detainees. It was impossible to sleep or sit there – one could only stand. There was no window or other means of ventilation. 7. The applicant was subsequently transferred to the premises of the General Police Directorate (“the GPD”). However, he was brought back to Ciocana police station several times for further questioning and each time he was detained in the same 1 sq. m cell as previously. In the GPD’s premises he was placed in cell no. 11, which measures 2.5 x 3 m and in which twelve detainees were held. The cell was unventilated, dirty and damp. No daily walk was allowed. A window of 50 cm x 50 cm was covered with thick metal netting preventing almost all sunshine and air from reaching the cell. The cell had a toilet, next to the dining table. Water was available from a tap installed above the toilet. Detainees had to take turns to sleep. The cell was infested with parasitic insects. No bed linen was available. No doctor visited the cell. The prosecutor responsible for checking conditions of detention fully supported the police and did not take action in response to any complaints. 8. Three weeks later the applicant was transferred to prison no. 13 in Chişinău and placed in cell no. 126. The cell was in the basement, had no windows and was not heated; it was very cold and damp. There were more detainees than sleeping places in the cell. 9. On 15 March 2006 he was transferred to prison no. 15 in Cricova.
| 0
|
train
|
001-69614
|
ENG
|
NLD
|
CHAMBER
| 2,005
|
CASE OF SAID v. THE NETHERLANDS
| 1
|
Violation of Art. 3;No separate issue under Art. 2;Pecuniary damage - claim dismissed
| null |
8. The applicant was born in 1967 and is currently staying in the Netherlands. 9. On 8 May 2001 the applicant arrived in the Netherlands, where on 21 May 2001 he applied for asylum (verblijfsvergunning asiel voor bepaalde tijd) at the asylum application centre (aanmeldcentrum) at Schiphol. A first interview with an official of the Immigration and Naturalisation Department of the Ministry of Justice took place that same day, in order to establish the applicant's identity, nationality and travel route. The next day he was interviewed regarding the reasons for his request for asylum. The applicant submitted the following. 10. After completing his eighteen months' military service on 1 December 1995, the applicant was again called up during a general mobilisation in April 1998. He served as a soldier in an anti-tank unit and fought in the war against Ethiopia. 11. Although the war ended on 13 June 2000, demobilisation did not commence until considerably later because the Eritrean authorities feared further military incursions by the Ethiopians. In August 2000 a meeting was held with the applicant's battalion, consisting of between 5,000 and 7,000 men, in order to evaluate its performance in the war. According to the applicant, it was customary for such meetings to be held, and they allowed the higher army echelons to cover up their mistakes by putting the blame for an unsuccessful campaign on the soldiers. During this meeting the commanders said that the soldiers had not fought well. The applicant spoke up and said that this was because the commanders had insisted that hungry, thirsty and tired soldiers should continue fighting at the front, which had resulted in casualties. He said that his unit should have been replaced or strengthened. Other soldiers present at the meeting also voiced criticism, saying, for example, that there had not been enough weapons. When the applicant had spoken out, the other soldiers had vociferously supported him and an argument had ensued. 12. For some time after the meeting, the applicant had the feeling that the army authorities were keeping an eye on him; for example, he thought he was being followed whenever he visited other units, and he was denied permission to go into town. On 5 December 2000, by which time he thought everything had been forgotten, he was summoned to the battalion's headquarters. There, he was informed that he had incited the soldiers. He was made to hand over his weapons and was detained in an underground cell for almost five months. He was neither interviewed, nor charged, nor brought before a military tribunal. 13. On 20 April 2001 he was put into a jeep, with a driver and a guard who were armed. He was neither handcuffed nor bound. During the drive, they happened upon a military vehicle that had had an accident. Both the driver and the guard got out of the car to see if they could lend assistance. The applicant, left alone, seized the opportunity and escaped through the back of the car. 14. The applicant made his way unhindered to Sudan, avoiding official border posts. An acquaintance of his in Khartoum brought him into contact with a travel agent, who arranged for a passport and air tickets. Accompanied by the travel agent, the applicant flew to Belgium via Syria and another, unspecified European country. From Brussels they took a train to Breda in the Netherlands. There, the travel agent told the applicant they had reached their destination. He asked him to hand back the passport and to report to a police station. 15. On 23 May 2001 the Deputy Minister of Justice (Staatssecretaris van Justitie), applying an accelerated procedure, rejected the applicant's request for asylum. His failure to submit any document capable of establishing his identity, nationality or travel itinerary was held to affect the plausibility of his statements. Moreover, the Deputy Minister considered that the applicant's account of his alleged escape lacked credibility: it was hard to believe that someone who had been kept in detention for four months should have been transported unrestrained and been able to get away without being stopped by his guards, both of whom were alleged to have left him alone in the back of an open jeep in order to look at a traffic accident. The applicant was further held not to have substantiated his alleged detention. The comments he had allegedly made at the meeting in August 2000 were not of such a confrontational nature that he had well-founded reasons to fear persecution on that account, the more so bearing in mind that his comments did not particularly deviate from the opinion of the superiors to whom he claimed to have addressed them. Moreover, the applicant himself had stated that he was not the only soldier to have voiced criticism, yet neither had it been alleged, nor had it appeared, that any of those other soldiers had experienced problems as a result of their comments. The applicant had also not explained why he had not been arrested until four months later and had been left undisturbed in the meantime. 16. The applicant lodged an appeal with the Regional Court (arrondissementsrechtbank) of The Hague, sitting in Amsterdam, and also applied to the President of that court for a provisional measure staying his expulsion. Pending the outcome of these proceedings, the applicant submitted a written statement by a certain Mr Khalifa, to the effect that Mr Khalifa's son had been executed in Eritrea in October 2000 after he had been staying with his mother for three months without having obtained prior permission from his army commanders. He also submitted an identity card, a military identity card, a driving licence and a marriage certificate. On 18 June 2001 the President of the Regional Court rejected the application for a provisional measure and, finding that further investigation could not reasonably contribute to the clarification of the case, also dismissed the appeal. The President considered that the applicant's alleged desertion and his resulting fear of disproportionate punishment had not been established in a sufficiently plausible manner. It was unlikely that the army should still have been mobilised at the time of the applicant's escape in April 2001, given that the war had ended in June 2000 and that the army, by the applicant's own account, had evaluated its performance in the war at a meeting in August 2000. The applicant's claim that he stood accused of incitement was based on pure supposition. In view of the ease with which the applicant had allegedly managed to escape, the President further found it unlikely that the (army) authorities wished to harm him. Thus, finding the applicant's account neither credible nor plausible, the President deemed it unnecessary to hear Mr Khalifa as a witness. 17. The applicant lodged a further appeal (hoger beroep) with the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State), arguing, inter alia, that further investigation of the case, and in particular of the question whether the Eritrean army had been demobilised at the time of his desertion, was called for and feasible. If it turned out that the army had still been mobilised in April 2001, the reasoning adopted by the President of the Regional Court as to the lack of credibility and plausibility of the applicant's account would no longer stand up. The applicant also applied for a provisional measure allowing him to await the outcome of his further appeal in the Netherlands. He withdrew this application on 6 July 2001 in view of the relevant case-law of the Administrative Jurisdiction Division. 18. On 16 July 2001 the Administrative Jurisdiction Division dismissed the further appeal. It held that the applicant's appeal to the Regional Court had not been dismissed for reasons relating solely to the mobilisation, but also for reasons relating to the applicant's account of his arrest and escape. Given the conclusions reached by the President of the Regional Court to the effect that the Deputy Minister had not been wrong in describing the applicant's account as not credible, he (the President) had been entitled to decide not to hear evidence from Mr Khalifa as a witness. The fact that it was not in dispute that the applicant had served in the army did not affect this ruling. 19. Under the terms of section 29 of the Aliens Act 2000 (Vreemdelingenwet 2000), in force at the relevant time, an alien is eligible for a residence permit for the purposes of asylum if, inter alia, (a) he or she is a refugee within the meaning of the Convention relating to the Status of Refugees of 28 July 1951; or (b) he or she has established that he or she has well-founded reasons to assume that he or she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin. 20. To help in the assessment of asylum applications and the establishment of whether it is safe to return unsuccessful asylum-seekers, the Minister for Foreign Affairs regularly publishes official country reports (ambtsberichten) on the situation in asylum-seekers' countries of origin. In drawing up these reports, the Minister uses published sources and reports by non-governmental organisations as well as reports by Netherlands diplomatic missions. 21. The decision of 23 May 2001 rejecting the applicant's request for asylum was based on information contained in the country report of 20 October 2000. That report described Eritrea's conflict with Ethiopia and the hostilities that arose from it. The first series of hostilities ended in June 1998. Fierce fighting broke out again in February 1999, and there was small-scale fighting in September and October 1999. Full-scale war broke out again on 12 May 2000. On 18 June 2000 the two countries signed an agreement which has ended hostilities for the time being. Since then, the security situation has been good but the humanitarian situation has been worrying. 22. The country report made clear that merely coming from Eritrea does not constitute legal grounds for being admitted to the Netherlands. An asylum-seeker has to show convincingly that his or her personal circumstances – viewed objectively – justify a fear of persecution as defined in refugee law or constitute grounds for the issuing of a residence permit for the purposes of asylum because he or she would be subjected to treatment prohibited by Article 3 of the Convention if returned to the country of origin. 23. The country report of 1 March 2002 largely confirmed the findings of the previous report, although it also stated that deserters belonged to the categories of persons who, from a human rights point of view, ran a greater risk than others of encountering adverse treatment. With regard to penalties for desertion, it stated that the maximum penalty for desertion during general mobilisation was life imprisonment or, in extreme cases, death. According to the country report, these penalties and the question whether they applied in time of war or in peacetime were, however, largely theoretical. In practice, deserters were not tried in court, not even a military court. They were sentenced by their superiors and put to work in mining or road building for periods varying from six months to one year, until a new batch of recruits received basic training. Those sentenced were then sent to join the new batch and, subsequently, into active service. There were reports that in May/June 2000, during the war with Ethiopia, deserters who had been caught in the act were executed. 24. The most recent country report, that of 28 February 2005, contained the same information as the aforementioned report as far as penalties for desertion were concerned. It added that it seemed likely that the severity of the punishment imposed on deserters depended on the specific circumstances, including whether the desertion took place in time of war or in peacetime, whether the authorities were aware of the desertion at the time, and the particular circumstances of the individual concerned. 25. The same report further stated that there had been indications of ill-treatment of deserters by (military) police and security forces, and of disciplinary punishments, such as extended exposure to high temperatures or the binding of hands, being meted out to deserters in the army and resulting in permanent injury in some cases. 26. Given that there was a system of registration for conscripts, it was assumed that deserters were also registered and therefore known to the authorities. 27. In support of his application, the applicant provided the Court with information relating to the demobilisation of the army and the treatment of deserters. 28. According to a report published on 25 August 2001 in the weekly news magazine The Economist, the Eritrean army was at that time yet to be demobilised. 29. A letter to the applicant's lawyer dated 27 May 2002 from the Horn of Africa specialist of the Netherlands branch of Amnesty International stated that it was usual for the Eritrean army to get together after an offensive and to conduct an evaluation of its performance. It was also not unusual for a considerable time to pass between openly expressed criticism and arrest, or for deserters to be punished by their superiors without trial. Demobilisation of the Eritrean army had commenced in May 2002. 30. The applicant also submitted written statements by two Eritrean nationals currently living in exile in Germany and the United Kingdom respectively. The first statement, dated 6 March 2002, related how a relative of the author had been executed in April 1999 following this relative's voluntary return to the army after attending his brother's funeral without permission from his commanders. According to the second statement, made on 11 March 2002 by one of the founders and senior members of the Eritrean People's Liberation Front and former governor of a provincial capital, conscripts and soldiers who left the army were “hunted down and killed”. 31. In its Annual Report 2003, covering events from January to December 2002, Amnesty International noted with regard to Eritrea, inter alia: “The penalty for evading conscription or protesting against military service is three years' imprisonment, but in practice those caught are tortured and arbitrarily detained for several months with hard labour, before being forced back into the army. Methods of torture reported included being left for many hours in the hot sun, bound hand and foot, in some cases resulting in permanent injury.” 32. An Amnesty International press release of 11 August 2003 expressed that organisation's concern about reported plans by the Libyan authorities forcibly to return seven Eritreans to Eritrea. These men had deserted from the Eritrean army at different times during 2002 and fled from Eritrea to Sudan and then to Libya, hoping to reach a country of asylum in Europe. The press release stated that hundreds of Eritreans had fled the country in the past two years, to Sudan initially, after deserting from national service or to escape conscription. Prisoners held in military detention also included a number of persons who had expressed opinions critical of the government or the military authorities. The press release contained the following passage: “[I]f these seven Eritrean detainees are forcibly returned to Eritrea, they are at high risk of being arrested on arrival, and detained incommunicado and in secret without charge or trial for an indefinite period. They could face torture – which is routinely used by the military in Eritrea – and at least two of them who had been previously detained in Eritrea for political reasons could face extrajudicial execution.” 33. Amnesty International's Report 2004, covering events from January to December 2003, stated: “Torture continued to be used ... as a standard military punishment. Army deserters ... were tortured in military custody. They were beaten, tied hand and foot in painful positions and left in the sun for lengthy periods ('the helicopter' torture method), and suspended by ropes from the ceiling.” Amnesty International's Report 2005, covering events from January to December 2004, depicted an identical situation. 34. On 19 May 2004 Amnesty International published a report entitled “Eritrea: 'You Have No Right to Ask' – Government Resists Scrutiny on Human Rights”. It described, inter alia, the forcible deportation back to Eritrea of some 220 Eritreans who had landed on the island of Malta in 2002, mainly as a result of shipwrecks or sea rescues, by the Maltese authorities in September and October of that year. According to the report, the deportees “... were all immediately detained on arrival in Asmara and sent to the nearby Adi Abeto military detention centre. ... As Amnesty International learned later, women, children and those over the conscription age limit of 40 years were released after some weeks in Adi Abeto Prison but the rest of the Malta deportees – mostly army deserters – were kept in incommunicado detention and tortured.” 35. On 28 February 2005 the United States Department of State released the 2004 Country Report on Human Rights Practices in Eritrea. It stated, inter alia: “The Government continued to authorise the use of deadly force against anyone resisting or attempting to flee during military searches for deserters ... During the year, police severely mistreated and beat army deserters ... Security forces detained deserters ... and subjected them to various disciplinary actions that included prolonged sun exposure in temperatures of up to 113 degrees Fahrenheit or the binding of the hands, elbows and feet for extended periods. ... The Government deployed military police throughout the country using roadblocks, street sweeps, and house-to-house searches to find deserters ...”
| 1
|
train
|
001-79604
|
ENG
|
GBR
|
CHAMBER
| 2,007
|
CASE OF ASSOCIATED SOCIETY OF LOCOMOTIVE ENGINEERS AND FIREMEN (ASLEF) v. THE UNITED KINGDOM
| 2
|
Preliminary objection dismissed (non-exhaustion);Violation of Art. 11;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
|
Josep Casadevall;Nicolas Bratza
|
5. The applicant is a trade union, representing mainly train drivers on the United Kingdom's railways. Founded in 1880, it has some 18,000 members and most train drivers are members of ASLEF. It is an independent trade union. The various companies on the United Kingdom rail network do not operate a “closed shop” and railway workers, including drivers, are free to join ASLEF or other unions or not to join a union at all. 6. Its Rules provide that its objects include, as well as regulating relations between workers and employers and protecting the welfare of members and the industry, that it “assist in the furtherance of the labour movement generally towards a Socialist society (Rule 3.1(vii) and to “promote and develop and enact positive policies in regard to equality of treatment in our industries and ASLEF regardless of sex, sexual orientation, marital status, religion, creed, colour, race or ethnic origin” (Rule 3.1(viii)). 7. In 1978 the Annual Assembly of Delegates(“AAD”) of ASLEF, its governing body, resolved, pursuant to rule 14(a) of ASLEF rules, that "this AAD being concerned with the rise of Fascist activists and groups instruct the Executive Committee to campaign vigorously to expose the obnoxious policies of political parties such as the National Front." 8. In February 2002, a Mr Lee (a member of the far-right, lawful, British National Party ('BNP'), previously known as the National Front) applied for membership in ASLEF and was accepted. In April 2002 Mr Lee stood as a candidate in the local elections in Bexley for the BNP. 9. On 17 April 2002 an ASLEF trade union officer sent a report to the General Secretary concerning Mr Lee, attaching information that Mr Lee was an activist in the BNP, had handed out anti-Islamic leaflets dressed as a priest and that in 1998 he had stood as a candidate for the BNP in Newham. The report included an article written by Mr Lee for Spearhead (the BNP magazine) and a fax from Bexley Council for Racial Equality stating that Mr Lee had seriously harassed Anti-Nazi League pamphleteers, including taking pictures of them, taking their car numbers, making throat-cutting gestures and following one woman in his car and visibly noting her home address, which matters had been reported to the police. 10. On 19 April 2002, an Executive Committee meeting of ASLEF voted unanimously to expel Mr Lee, who was so informed by a letter of 24 April 2002, which stated that his membership of the BNP was incompatible with membership with ASLEF, that he was likely to bring the union into disrepute and that he was against the objects of the union. 11. Mr Lee appealed against the expulsion and was informed that a hearing would take place on 13 March 2003. On 20 February 2003, he stated that he would not attend. On 13 March 2003, the Appeals Committee of ASLEF met and rejected his appeal. 12. On 18 May 2002, AAD resolved "that membership of the BNP or similar Fascist organisation is incompatible with being a member of ASLEF as determined under Rule 5-Objects. Therefore any members of BNP who are members of, or apply for membership, of ASLEF shall be removed from membership or refused membership." The rules were changed accordingly to read: Rule 4.1(d): “No person shall be admitted into membership of ASLEF if by choice they are members of, supporters of, or sympathisers with, organisations which are diametrically opposed to the objects of the union, such as a fascist organisation.” 13. In the meantime, Mr Lee had brought proceedings in the Employment Tribunals ('ET') in respect of his expulsion, on the basis of section 174 Trade Union and Labour Relations (Consolidation) Act 1992 ('section 174'), which prohibits trade unions from excluding a person or expelling a member wholly or to any extent on the ground that the individual is or was a member of a political party. The ET found in favour of Mr Lee on 21 May 2003. The applicant appealed to the Employment Appeal Tribunal ('EAT'), which on 10 March 2004 found that the first ET had fallen into serious errors of law, quashed the decision and remitted it to a second ET. 14. The EAT considered that it could construe section 174 without the need to resort to Article 11. It noted the parties' submissions, including the applicant's reliance on the decision in Cheall v. the United Kingdom (no. 10550/83, Comm. Dec. 13.5.85, D.R. 42, p. 178) and continued: “As we have indicated [counsel for the applicant] accepts that we are not in a position to grant a declaration of incompatibility, on the one hand... But it is also clear to us that the very existence of competing claims under Article 11 (albeit that it would seem to us, on the authorities, that, absent a case of prejudice to livelihood, in this case [the applicant's] right of negative association for the Union and its members would seem likely to override the asserted right of association of [Mr Lee]) renders it more appropriate for us to seek to resolve the construction of the statute without reference to those competing rights. [Counsel for the applicant], while reserving his position, does not dissent from that course, and [counsel for Mr Lee] said that he understood, and indeed accepted that it was thereby being assumed in [his favour] that there is at least arguable an Article 11 right, such as he asserts.” 15. The EAT's conclusion on the meaning of section 174 was that a union could rely as a legitimate ground for expulsion on the conduct of the expelled member so long as that conduct was not the fact of being a member of a political party. It found that a union could not rely on conduct which was a “necessary act for the purpose of being or continuing to be a member” (at paragraph 29 of its judgment). It specifically rejected the submission advanced by the applicant that included in the concept of membership (and thus amounting to conduct on which the union was not permitted to rely) was conduct as a member, or in the capacity as a member, of a political party (paragraph 28.5 of the EAT judgment). 16. A second ET again upheld Mr Lee's complaint by way of decision promulgated on 6 October 2004. It rejected the applicant's defence that Mr Lee's expulsion was entirely attributable to his conduct (apart from the fact of membership of the BNP) for the purpose of section 174, holding that the expulsion was “primarily because of his membership of the BNP” (paragraph 25 of its judgment). 17. The applicant did not appeal to the EAT against the second decision of the ET. 18. In consequence of the second decision of the ET, the applicant has been obliged to re-admit Mr Lee to the membership of the Union. It is in breach of its own Rules in so doing. Had the applicant not re-admitted Mr Lee, it would have been liable to pay him compensation in such sum as the ET considered just and equitable (subject to a statutory minimum of, currently, just over 8,600 euros (EUR), with no upper limit). Even though it has re-admitted Mr Lee, the applicant remains exposed to an application from Mr Lee for compensation in such sum as the ET considers just and equitable but subject to an upper limit of around EUR 94,200. It does not appear that Mr Lee has made any such application. 19. Section 174 of the Trade Union and Labour Relations (Consolidation) Act 1992 reads in relevant part: (1) An individual shall not be excluded or expelled from a trade union unless the exclusion or expulsion is permitted by this section. (2) The exclusion or expulsion of an individual from a trade union is permitted by this section if (and only if) – ... (d) the exclusion or expulsion is entirely attributable to his conduct. ... (3) For purposes of subsection 2(d) 'conduct,' in relation to an individual, does not include – (a) his being or ceasing to be, or having been or ceased to be - (...) (iii) a member of a political party, or ...” 20. Subsequent to the decision of the second ET in Mr Lee's case, section 174 was amended (with effect from 31 December 2004) to read as follows (again in material part only): “(1) An individual shall not be excluded or expelled from a trade union unless the exclusion or expulsion is permitted by this section. (2) The exclusion or expulsion of an individual from a trade union is permitted by this section if (and only if) – (...) (d) the exclusion or expulsion is entirely attributable to conduct of his (other than excluded conduct) and the conduct to which it is wholly or mainly attributable is not protected conduct. ... (3) For purposes of subsection (2)(d) “excluded conduct,” in relation to an individual, means – (a) conduct which consists in his being or ceasing to, or having been or ceased to be, a member of another trade union (b) conduct which consists in his being or ceasing to be, or having been or ceased to be, employed by a particular employer or at a particular place, or (c) conduct to which section 65 (conduct for which an employer may not be disciplined by a union) applies or would apply if the references in that section to the trade union which is relevant for the purposes of that section were references to any trade union. (4A) For the purposes of subsection (2)(d) “protected conduct” is conduct which consists in the individual's being or ceasing to be, or having been or ceased to be, a member of a political party. (4B) conduct which consists of activities undertaken by an individual as a member of a political party is not conduct falling within subsection (4A). ..” 21. Section 177(1)(b) provides that “'conduct' includes statements, acts and omissions.” 22. Article 5 of European Social Charter 1961 provides for the following “right to organise”: “With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Contracting Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations.” 23. In that context, the European Committee of Social Rights of the Council of Europe (formerly the “Committee of Independent Experts”, which is the supervisory body of the European Social Charter 1961 has given consideration on numerous occasions to sections 174-177 of the 1992 Act. Concern with the interference by section 174 in the right of trade unions to fix their own rules and choose their own members was expressed by the Committee in Conclusions XIII-3, p. 109; Conclusions XV-1 p. 629; and in November 2002, Conclusions XVI-1, p. 684 where it held: “Section 174 of the 1992 Act limits the grounds on which a person may be refused admission to or expelled from a trade union to such an extent as to constitute an excessive restriction on the rights of a trade union to determine its conditions for membership and goes beyond what is required to secure the individual right to join a trade union....The Committee concludes that, in light of the provisions of the Trade Union and Labour Relations (Consolidation Act) 1992 referred to above (sections 15, 65, 174 and 226A) the situation in the United Kingdom is not in conformity with Article 5 of the Charter” 24. In Conclusions XVII-1 (2004) it again concluded that the United Kingdom was not in conformity with Article 5 of the Charter as section 174 constituted an excessive restriction on trade unions' right to determine their membership conditions. 25. The (ILO) Freedom of Association and Protection of the Right to Organise Convention, 1948 (no. 87) provides, inter alia: “Part I. Freedom of Association ... Article 2 Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.”
| 1
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train
|
001-79710
|
ENG
|
DEU
|
ADMISSIBILITY
| 2,007
|
AL-MOAYAD v. GERMANY
| 3
|
Inadmissible
|
Peer Lorenzen
|
1. The applicant, Mohammed Ali Hassan Al-Moayad, is a Yemeni national who was born in 1948 and was resident in Yemen. He was an adviser to the Yemeni Minister for Religious Foundations with the rank of secretary of state and the imam of the Al-Ihsan Mosque in Sanaa (Yemen). 2. He is currently detained in the United States of America. Before the Court he was represented by Mr Alfred Dickersbach, a former judge of the Federal Administrative Court and lawyer practising in Berlin. The respondent Government were represented by their Agent, Mr K. Stoltenberg, Ministerialdirigent, and, subsequently, Mrs A. Wittling-Vogel, Ministerialdirigentin. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. A Yemeni citizen on an undercover mission for the US investigation and prosecution authorities in Yemen convinced the applicant that he could put him in touch with a person abroad who was willing to make a major financial donation (the purpose of which is a matter of dispute). Thereupon, the applicant decided to travel to Germany. 5. On 6 November 2002 the US authorities requested legal assistance (Rechtshilfe) from the German authorities in the criminal investigations into the applicant’s activities. On 18 December 2002 the Frankfurt am Main Regional Court authorised the interception and recording of conversations in the hotel rooms in Frankfurt in which the applicant was expected to stay. 6. The applicant travelled to Germany in January 2003 with his secretary. On 10 January 2003 they were arrested in Frankfurt by German police officers under an arrest warrant that had been issued on 5 January 2003 by the US Federal Court for the Eastern District of New York supported by a motion dated 8 January 2003 of the US Ministry of Justice for the applicant to be taken into custody pending extradition. The US prosecution authorities charged the applicant with providing money, weapons and communications equipment to terrorist groups, in particular Al-Qaeda and Hamas, and with recruiting new members for these groups between October 1997 and the date of his arrest. 7. On 11 January 2003 the Frankfurt am Main District Court ordered the applicant’s provisional detention after hearing his representations. Pursuant to an order of the Frankfurt am Main Court of Appeal dated 14 January 2003, the applicant was remanded in provisional custody pending extradition. 8. On 24 January 2003 the Embassy of the United States of America transmitted a formal request to the German Federal Government for the applicant’s extradition for criminal prosecution. The request was based on the extradition treaty between the Federal Republic of Germany and the United States of America of 20 June 1978 read in conjunction with the supplementary treaty of 21 October 1986 (see below at paragraphs 29-34). Enclosed with the request were the arrest warrant of 5 January 2003 and a written affidavit by the Deputy US Attorney of the Eastern District of New York in which the latter expounded the state of the investigations in the United States. 9. On 13 February 2003, upon an application made by the public prosecutor’s office, the Frankfurt am Main Court of Appeal ordered the applicant’s remand in formal custody pending extradition (förmliche Auslieferungshaft). It gave the US authorities until 31 March 2003 to furnish additional particulars of the offences the applicant was charged with. Thereupon, additional extradition documents were submitted to that court, including an affidavit by an FBI investigator setting out the specific offences with which the applicant was charged under the US criminal law. It emerged from these documents that the US authorities had learned of the suspected offences from a Yemeni national who had also incited the applicant to meet another informant in Frankfurt who allegedly wanted to donate money for the “Jihad”. 10. At a hearing before the Frankfurt am Main Court of Appeal on 19 February 2003 the applicant refused to consent to his extradition. 11. On 24 April 2003 the Frankfurt am Main Court of Appeal confirmed its order of formal detention pending extradition. Having received additional documents from the US authorities, it noted that the applicant was now charged with membership of two terrorist associations, Al-Qaeda and the extremist branch of the Hamas. These activities corresponded to offences under German criminal law. 12. In three notes verbales the Embassy of the Republic of Yemen informed the German Foreign Office that it considered that the applicant had been abducted from Yemen to Germany contrary to public international law and to the prohibition in the Yemeni Constitution on the extradition of its own citizens. It requested the federal government to repatriate the applicant to Yemen. 13. In a note verbal of 22 May 2003 the Embassy of the United States of America gave an assurance (Zusicherung) to the German authorities that the applicant would not be prosecuted by a military tribunal pursuant to the Presidential Military Order of 13 November 2001 (see below at paragraphs 37-38) or by any other extraordinary court. 14. On 18 July 2003 the Frankfurt am Main Court of Appeal declared the applicant’s extradition admissible and ordered his further remand in custody, invoking the risk that he might abscond if released. It found that the offences which the applicant was charged with in the United States of America were punishable and extraditable, under the law of both the United States and Germany. There were no rules of domestic or public international law that required the discontinuance of the proceedings on account of the fact that the applicant had been incited to travel to Germany by an informant. Moreover, there was nothing to warrant the conclusion that the applicant might be subjected to unfair criminal proceedings or torture in the United States. The assurance given by the United States on 22 May 2003 clearly stated that criminal proceedings for the offences listed in the extradition request would be instituted against the applicant in the ordinary criminal courts. 15. On 23 July 2003 the applicant complained to the Frankfurt am Main Court of Appeal of a violation of his right to be heard in court and applied for a new decision on the validity of the extradition request and a stay of execution. On 5 August 2003 the Court of Appeal dismissed the complaint as the reasons given by the applicant disclosed no new circumstances justifying a different decision on the validity of the extradition request. 16. On 19 August 2003 the Frankfurt am Main Court of Appeal dismissed a further application by the applicant for a fresh decision on the validity of the extradition request. It found that the evidence supporting the charges had exclusively been taken from the extradition documents submitted by the US authorities, which had been sent to the applicant’s lawyers for inspection prior to the decision on the validity of the extradition request. Concerns that the applicant might be at risk of torture if extradited had been allayed by the assurance given by the US authorities, which was binding under public international law. It had to be assumed that the applicant would be brought before an ordinary criminal court in the United States. Worrying reports about inhuman treatment of prisoners suspected of terrorism concerned almost without exception prisoners in Guantánamo Bay (Cuba) and Bagram (Afghanistan) and in some third countries. It could not be concluded from existing press reports on the treatment of these prisoners that ordinary criminal proceedings in the United States would not meet the minimum standards of due process of law or would infringe the prohibition on torture. Moreover, no other circumstances were known that would give cause for further inquiry into the facts. 17. On 28 August 2003 the applicant filed a constitutional complaint with the Federal Constitutional Court against the decisions of the Frankfurt am Main Court of Appeal of 18 July, 5 and 19 August 2003. He argued, in particular, that his surveillance by the FBI in Yemen and his abduction from that country to Germany had been in breach of Yemen’s territorial sovereignty and therefore of public international law and that, accordingly, his detention pending extradition had no legal basis. He also claimed that he would be placed in preventive detention in the United States indefinitely without access to a court or a lawyer. He further alleged that, if he was extradited, the American authorities would expose him to interrogation methods that were contrary to Article 3 of the Convention. 18. On 5 November 2003 the Second Chamber (Senat) of the Federal Constitutional Court unanimously rejected the complaint as ill-founded and therefore refused to grant an interim injunction staying the applicant’s extradition. 19. The Federal Constitutional Court found that the Frankfurt am Main Court of Appeal’s decision had not infringed the Basic Law. The applicant’s extradition was not in breach of public international law. There was no general rule of public international law, at any rate not in cases such as the present one, to prevent a person being lured by trickery from his State of origin to a State to which a request was then made for his extradition (“the requested State”) in order to circumvent a ban on extradition that was valid in his State of origin. Examining the State practice on this question, the Federal Constitutional Court held as follows: “The examination of State practice shows that the general rule of international law that is alleged by the complainant does not exist. The courts’ case-law is heterogeneous as regards the question whether the fact that a prosecuted person has been lured out of his or her State of origin becomes an obstacle precluding extradition in the requested State of residence. The majority of decisions do not even regard the circumstances which preceded the arrest as an obstacle precluding criminal prosecution in the State of the forum. In this context, it need not be decided whether a national obstacle precluding criminal proceedings or extradition results from customary international law if the prosecuted person has been taken from his or her State of origin to the State of the forum or to the requested State by the use of force. Admittedly, more recent State practice, in particular as a consequence of dealing with the U.S. Supreme Court decision in the Alvarez-Machain case (United States Reports, Vol. 504 [1991/92], pp. 655 et seq.) indicates that the principle male captus, bene detentus is rejected at any rate if the State got hold of the prosecuted person by committing serious human rights violations, and if the State whose territorial sovereignty was violated protested against such procedure (see International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Dragan Nikolic, Decision of 5 June 2003 - IT-94-2-AR73, Appeals Chamber, nos. 24 et seq. with reference to the decision of the U.S. Federal Court of Appeal, United States v. Toscanino, 500 Federal Reporter, Second Series 267 [1974]; see also Wilske, Die völkerrechtliche Entführung und ihre Rechtsfolgen, 2000, pp. 272 et seq., at p. 336, with further references). The facts of the present case, however, differ from these cases in important details as the applicant’s decision to leave Yemen was voluntary. According to his secretary’s statement, the applicant himself suggested Frankfurt as the venue for a meeting that was supposed to serve fundraising activities on account of the favourable visa regulations for Yemeni citizens in Germany and in view of the good traffic connections. Admittedly, the applicant was deceived by trickery so that the motives for which he travelled to Germany were based on deception. However, he was not subjected to direct force aimed at bending his will, he was not threatened with the use of force, and the trickery did not facilitate his subsequent forceful abduction. The acts of deception were not performed by or are attributable to the German authorities. Finally, there are no indications that would permit the assumption that the German authorities cooperated with the United States criminal prosecution and investigation authorities in a collusive manner in order to induce the applicant to travel specifically to Germany.” 20. The Federal Constitutional Court examined a number of decisions of national and international courts and concluded that it could not be ascertained that a practice had been established under international law with respect to facts such as those in the present case which would have meant that the extradition was ostensibly in breach of customary international law. The fact that the Swiss Federal Court had refused the extradition of a Belgian citizen to Germany because the prosecuted person had been lured to Switzerland by the German authorities, infringing Belgian sovereignty (Swiss Federal Court, judgment of 15 July 1982, Europäische Grundrechte Zeitung 1983, pp. 435 et seq.) could not be regarded as proof of the existence of a practice creating customary international law. The Federal Constitutional Court notably found: “When assessing the existing judicial decisions it has to be borne in mind that doubts already exist as to the preconditions that must obtain before the luring of a suspect out of his or her State of residence by means of trickery – as opposed to the use of force – can be regarded as an act that is contrary to international law at all... To the extent that in the case of the use of trickery the suspect’s decision to travel overseas is also motivated by his or her own interests and to the extent that the possibility remains for him or her to decide not to leave, the suspect will not, as a general rule, be the subject of State coercion. Admittedly, the boundary between luring someone out of a State by means of trickery and breaking someone’s will by the use of force can be fluid in borderline cases, for instance if someone is deluded into believing something that has the effect of irresistible coercion on the person affected. Such circumstances, however, do not exist here. Instead, the complainant travelled to the federal territory on the basis of an independent decision in order to pursue his own specific interests there. Moreover, recent State practice also takes into account the seriousness of the crime with which the person is charged, which means that, in this respect, it takes proportionality into consideration. The protection of high-ranking legal interests, which has been intensified at the international level in recent years, can lend itself to justifying the violation of a State’s personal sovereignty that may result from the use of trickery (see International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Dragan Nikolic, loc. cit., number 26). To the extent that the fight against the most serious crimes – such as supporting the international drugs trade or terrorism – is concerned, luring someone out of a State’s territorial sovereignty by means of trickery is not, at any rate to the extent that would be required under existing State practice, regarded as an obstacle precluding criminal prosecution. No different rules can apply to the existence of an obstacle precluding extradition.” 21. As to the applicant’s complaints about the interrogation methods in the United States the Federal Constitutional Court continued: “The applicant’s rights under ... the Basic Law ... have not been violated. The Court of Appeal declared the extradition request valid in accordance with the constitutional requirements. This also applies to the extent that the applicant had applied for a further investigation into the facts of the case as regards the methods of interrogation used in the United States, which are allegedly contrary to the due process of law. The Court of Appeal rejected this submission, citing a lack of indications to this effect in the United States’ practice. This reasoning is constitutionally unobjectionable. On the one hand, it is consistent with the Federal Constitutional Court’s recent case-law, which provides that in mutual assistance concerning extradition, especially if rendered on the basis of international-law treaties, the requesting State is, in principle, to be shown trust as concerns its compliance with the principles of due process of law and of the protection of human rights. This principle can claim validity as long as it is not shaken by evidence to the contrary (Decision of the Second Chamber of 24 June 2003 - 2 BvR 685/03 - Extradition to India). Such evidence did not exist at the time of the Court of Appeal’s decision. On the other hand, decisive weight must be given to the fact that the United States precluded the possible application of the Presidential Military Order of 13 November 2001 by their assurance of 22 May 2003. Thus, the United States have assumed an obligation, which is binding under international law, not to bring the applicant before an extraordinary court after his extradition, apply the procedural law laid down in the Order of 13 November 2001 or place the complainant in an internment camp. There is no indication that the United States will not comply with the assurance if the applicant is extradited. It is also relevant that the relations of mutual judicial assistance that exist between Germany and the United States on the basis of international law treaties have been reinforced still further by the signing of the Agreement on Mutual Judicial Assistance in Criminal Matters on 14 October 2003. This circumstance confirms the assumption that, in principle, the United States will comply with their obligations vis-à-vis Germany (the Court’s decision of 24 June 2003 cited above). Moreover, it can be assumed that the Federal Government itself will observe the further proceedings in the United States through its diplomatic missions.” 22. The Federal Constitutional Court’s decision was published and sent to the applicant by fax on 13 November 2003. 23. On Friday, 14 November 2003 the federal government authorised the applicant’s extradition. 24. On Sunday, 16 November 2003 the applicant and his secretary were extradited to the United States of America on board a US Air Force aircraft. 25. In a note dated 17 November 2003 the Head of the Public Prosecutor’s Office informed the Frankfurt am Main Public Prosecutor’s Office that the federal government had authorised the extradition of the applicant and his secretary on 14 November 2003. The authorisation had been given on condition that they were not sentenced to death or committed to stand trial before a military tribunal (thus excluding their detention in Guantánamo Bay). They had been extradited on 16 November 2003. The Head of the Public Prosecutor’s Office noted that the German authorities had not been notified of any decision taken by the European Court of Human Rights concerning the applicant (see paragraphs 43-48). 26. On 17 November 2003 the applicant was brought before a judge of the Brooklyn / New York District Court. He was reportedly subsequently held in a prison in Brooklyn. 27. On 27 January 2005 the US District Court for the Eastern District of New York opened the applicant’s trial on charges of providing material support to Al-Qaeda and Hamas. Both the German Consulate General in New York and the Yemeni Government sent observers to attend the District Court’s hearings. 28. According to several press reports, the US District judge sentenced the applicant on 28 July 2005 to 75 years’ imprisonment, the statutory maximum sentence, for conspiracy to support Al Qaeda and Hamas, for having provided material support to Hamas and for having attempted to provide material support to Al Qaeda. 29. Extradition between Germany and the USA is governed by the bilateral Treaty between the Federal Republic of Germany and the United States of America Concerning Extradition of 20 June 1978 (which entered into force on 29 August 1980), as added to and amended by the supplementary treaty of 21 October 1986 (which entered into force on 6 December 1988). 30. Pursuant to Article 1 of the Treaty, the Contracting Parties agree to extradite to each other persons found in the territory of one of the Contracting Parties who have been charged with an offence or are wanted for the enforcement of a judicially pronounced penalty or detention order for an offence. 31. Articles 2 and 3 provides that extradition will be granted in respect of certain extraditable, non-political offences either for the prosecution of these offences or the enforcement of a penalty or detention order. 32. The Requesting State is required to inform the Requested State on demand of the result of the criminal proceedings against the extradited person and to send a copy of the final and binding decision to that State (Article 24). 33. When the offence for which extradition is requested is punishable by death under the laws of the Requesting State and the laws of the Requested State do not permit such punishment for that offence, extradition may be refused unless the Requesting State furnishes such assurances as the Requested State considers sufficient that the death penalty will not be imposed or, if imposed, will not be executed (Article 12). 34. Article 13 of the Treaty provides that an extradited person is not to be tried by an extraordinary court in the territory of the Requesting State and that extradition may not be granted for the enforcement of a penalty imposed, or detention ordered, by an extraordinary court. 35. Pursuant to section 15(1) of the International Assistance in Criminal Matters Act (IACMA), a person may be taken into detention pending extradition upon receipt of an extradition request if there is a risk that he or she might otherwise evade the extradition proceedings or extradition or if, on the basis of specific facts, there are strong grounds for believing that he or she would obstruct the process of establishing the truth in the proceedings in the foreign State or in the extradition proceedings. Section 15(2) of the IACMA lays down that section 15(1) shall not apply if the request for extradition appears to be invalid from the outset. 36. Pursuant to Article 25 of the Basic Law, the general rules of international law form an integral part of federal law. They take precedence over statute law and directly create rights and duties for the inhabitants of German territory. 37. On 13 November 2001 the President of the United States of America signed a military order on the “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism” (U.S. Federal Register of 16 November 2001, Vol. 66 No. 222, pp. 57831 et seq.). 38. The US President’s Military Order applies to non-citizens of the US with respect to whom there is reason to believe that they are members of Al-Qaeda or have aided and abetted acts of international terrorism (section 2 of the Order). Any individual subject to the Order shall be detained at an appropriate location designated by the Secretary of Defence outside or within the United States (section 3 of the Order). They shall, when tried, be tried by military commission for any and all offences triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death (section 4 of the Order). Military tribunals shall have exclusive jurisdiction with respect to offences committed by such persons, who shall not be privileged to seek any remedy in any court of the United States, any court of any foreign nation, or any international tribunal (section 7 of the Order). 39. In its Annual Report 2003 on the USA, covering events from January to December 2002, Amnesty International stated: “Background The US-led international military action in Afghanistan, launched following the 11 September 2001 attacks, continued into 2002. Thousands were detained in the context of the conflict, with frequent transfers of prisoners between the US, Afghan and Pakistan authorities. ... Detentions outside the USA During the year, starting in January, the USA transferred more than 600 foreign nationals to the US naval base in Guantánamo Bay, Cuba, where they were held without charge or trial or access to the courts, lawyers or relatives. Although most were arrested during the armed conflict in Afghanistan, the USA refused to grant them prisoner of war status under the Geneva Conventions or to afford them other rights under international human rights law. ... The conditions of the detainees’ transfer to and detention in Guantánamo Bay gave cause for serious concern. ... A number of suspected members of al-Qa’ida reported to have been taken into US custody continued to be held in undisclosed locations. The US government failed to provide clarification on the whereabouts and legal status of those detained, or to provide them with their rights under international law, including the right to inform their families of their place of detention and the right of access to outside representatives. An unknown number of detainees originally in US custody were allegedly transferred to third countries, a situation which raised concern that the suspects might face torture during interrogation. Two US nationals continued to be held in incommunicado detention without charge or trial as ‘enemy combatants’ in military custody in the USA at the end of the year. ...” 40. In its 2004 Annual Report on the United States of America, which covered events from January to December 2003, Amnesty International noted: “Background Thousands of people were detained in the context of the US-led war against Iraq and subsequent occupation of Iraq by the Coalition Provisional Authority... Others were held in US bases in Afghanistan, Cuba and elsewhere as part of the ongoing ‘war against terrorism’. ... Detentions outside the USA Hundreds of detainees from around 40 countries remained in legal limbo in the US naval base in Guantánamo Bay. ... None of the detainees were charged, tried, or given access to lawyers, relatives or the courts. ... During 2003, concern continued to grow about the psychological impact on the detainees of the indefinite and isolating detention regime in Guantánamo. The International Committee of the Red Cross (ICRC), the only international non-governmental organization with access to the detainees, took the unusual step of publicly criticizing the lack of legal process and spoke of the deterioration in mental health that the organization had witnessed among large numbers of the detainees. ... The US air base in Bagram, Afghanistan, continued to be used as a detention facility. There, too, detainees were denied any sort of legal process. The ICRC did not have access to all those held there. During the year, allegations were made that detainees had been tortured or ill-treated in Bagram. ... There were continuing concerns about the possible transfer of prisoners to countries where it was feared they might face torture during interrogation. Military commissions On 3 July, the Pentagon announced that President Bush had selected six foreign detainees to be subject to the provisions of the Military Order he signed in November 2001. The Order provides for non-US nationals suspected of involvement in ‘international terrorism’ to be held indefinitely without trial or to be tried by military commissions. ...” 41. In company with numerous other newspapers, The Washington Post reported on interrogation methods applied to terrorist suspects following the attacks of September 11, 2001. For instance, in its article ‘U.S. Decries Abuse but Defends Interrogations – ‘Stress and Duress’ Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities’ dated 26 December 2002, it reported on the use of methods known as “stress and duress” techniques at the U.S. airbase in Bagram (Afghanistan) and in other secret detention centres outside US territory. The techniques reportedly used comprised methods such as beating, holding suspects in painful positions and sleep deprivation. Furthermore, some suspects were handed over to foreign intelligence services known for using brutal means with a list of questions the agency wanted answered. 42. In its article ‘Justice Dept. Memo Says Torture ‘May Be Justified’’ of 13 June 2004, The Washington Post reported on a memorandum written by the US Department of Justice dated 1 August 2002 on standards of conduct for interrogations of suspected Al-Qaeda members whom the CIA had apprehended outside the United States. Another memorandum dated 6 March 2003 from a Defence Department Working Group, which was to elaborate new interrogation guidelines for detainees at Guantánamo Bay, incorporated much of the Justice Department’s memorandum.
| 0
|
train
|
001-139325
|
ENG
|
ROU
|
ADMISSIBILITY
| 2,013
|
TRIF v. ROMANIA
| 4
|
Inadmissible
|
Alvina Gyulumyan;Corneliu Bîrsan;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
|
1. The applicants, Mr Aurel Trif and Mrs Viorica Trif, are Romanian nationals who were born in 1950 and 1924 respectively and live in Chețani. They were represented before the Court by Mr V. F. Chirilă, a lawyer practicing in Târgu-Mureş. 2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 16 October 2003, following their divorce, the ex-wife (“the third party”) brought proceedings against Mr Aurel Trif (“the first applicant”) seeking the division of joint movable and immovable property. 5. On 18 November 2003 the first applicant, assisted by a legal representative of his choosing, lodged a counterclaim against the third party, and argued, inter alia, that the collective value of the movable and immovable property in dispute was 689,800,000 Romanian lei (ROL) (approximately 19,000 euros (EUR)) out of which the value of the main immovable property in dispute, in particular an apartment, was ROL 480,000,000 (approximately EUR 13,500). 6. On 16 December 2003 the third party asked the first-instance court for the first applicant’s mother Mrs Viorica Trif (“the second applicant”) to join the proceedings. The third party argued, inter alia, that the ROL 60,000,000 spent by her and the first applicant at the start of their marriage to extend the second applicant’s home, where they lived for a while, should also be considered joint property. The Luduş District Court allowed the third party’s request by an interlocutory judgment on the same day. 7. The Luduş District Court, in an interlocutory judgment of 4 May 2004, granted a request by the parties and their chosen legal representatives for a building expert report concerning the market value of the apartment and the extension work carried out on the second applicant’s home to be produced in the case. 8. On an unspecified date the expert report was submitted to the first-instance court. The applicants objected to the report. They argued that the said report on the one hand undervalued the apartment because it did not take into account the improvement work carried out after the apartment had been purchased by the first applicant and his former wife, and on the other hand overvalued the extension work carried out on the second applicant’s home. 9. By an interlocutory judgment of 7 December 2004 the Luduş District Court allowed in part the applicants’ objection concerning the apartment, and ordered the building expert to supplement the report. 10. On 1 February 2005 the building expert produced a second expert report and concluded that the market value of the disputed apartment, taking into account the improvement work carried out after it had been bought, was ROL 502,050,000. The applicants objected to the new expert report and argued that the improvement work had been undervalued by the building expert. Consequently, they requested the court to order a third expert report. 11. By an interlocutory judgment of 23 February 2005 the Luduş District Court dismissed the applicants’ request for a new expert report and held that it was unnecessary. 12. On 24 February 2005 the first applicant submitted written observations to the first-instance court and argued, without providing a total estimated value of the disputed properties, that the market value of the apartment in dispute was in his opinion between ROL 700,000,000 and 750,000,000. In addition, he argued that the extension work carried out on the second applicant’s house had been paid for by her, and that with some exceptions the value of the remaining properties to be divided had been overestimated. 13. By a judgment of 2 March 2005 the Luduş District Court, on the basis of witness statements, documents, the statements of the parties and the building expert report available to the file, allowed the third party’s action. It decided that the total value of the movable and immovable property disputed by the parties was ROL 791,288,000 (approximately EUR 22,000). It awarded the apartment to the third party, together with part of the movable assets, and ordered her to pay the first applicant a sum of ROL 192,006,000 (approximately EUR 5,000) in compensation. The operative part of the judgment expressly stated that it was subject to appeal within fifteen days following notification. 14. On an unspecified date in May 2005 the applicants, assisted by a legal representative of their choosing, appealed against the judgment of 2 March 2005 before the Târgu-Mureş County Court. They argued that the first-instance court should have divided the apartment in dispute and awarded one half to each of the parties. In addition, without providing a total estimated valuation of the disputed properties, they contended that the extension work carried out on the second applicant’s home and valued by the first-instance court at ROL 58,638,000 had been paid for exclusively by the second applicant, and should not have been included in the common property to be divided between the first applicant and his former wife. Moreover, other properties had been overvalued or undervalued or should also not have been considered joint property. Lastly, they asked the secondinstance court to order a new expert report to determine the value of the apartment in dispute. 15. At a hearing on 9 June 2005 the third party’s lawyer argued before the second-instance court sitting in a bench of two judges that the disputed property was worth no more than ROL 1,000,000,000 (approximately EUR 27,000). Consequently, according to Article 2821 (1) of the Romanian Code of Civil Procedure the applicants’ appeal needed to be re-qualified by the court from appeal to appeal on points of law (recurs). 16. The applicants’ legal representatives argued that the provisions of the Romanian Code of Civil Procedure cited by the third party did not apply in respect of proceedings concerning division of the property. 17. By an interlocutory judgment of 9 June 2005, after hearing submissions from both parties, the Târgu-Mureş County Court re-qualified the applicants’ appeal as an appeal on points of law and referred the case to a bench of three judges competent to examine an appeal on points of law. 18. On 21 June 2005 the applicants raised a constitutional objection against the provisions of Article 2821 (1) of the Romanian Code of Civil Procedure. They argued that the limitation of their right to lodge an appeal against the judgment of the first-instance court on account of the value of the disputed property amounted to a discriminatory limitation of their right of access to court. 19. By an interlocutory judgment of 27 September 2005 the TârguMureş County Court suspended the proceedings and referred the applicants’ constitutional objection to the Constitutional Court. 20. By a final judgment of 26 January 2006 the Constitutional Court dismissed the applicants’ constitutional objection. It held that the distinction between the types of proceedings that could or could not be subjected to appeal was made on the basis of the value of the object in dispute and not on the basis of the applicants’ social status or wealth. The legal regime in question was required by the particular circumstances, which needed different legal solutions in order to ensure the speediness of the proceedings. In addition, neither the Romanian Constitution nor the international legal instruments required access to three levels of jurisdiction. 21. On 14 March 2006 the applicants argued, inter alia, before the Târgu-Mureş County Court that reasons of public order, in particular contradictions between the operative and the reasoning part of the lower court’s judgment in respect of the total value of the disputed properties and the wrongful indication of the type of appeal that could be exercised by the applicants, justified the quashing of the said judgment. Alternatively, the applicants asked the second-instance court for the time-limit for an appeal on points of law to be reinstated. 22. By a final judgment of 28 March 2006 the Târgu-Mureş County Court, sitting in a bench of three judges, declared null the applicants’ appeal on points of law. It held that the applicants had not submitted their reasons for appeal on points of law within the allowed time-limit. Moreover, none of the arguments raised by them amounted to reasons of public order, and the contradiction referred to by them could be corrected by proceedings seeking the elimination of material errors. Furthermore, it dismissed the applicants’ request for the time-limit for an appeal on points of law to be reinstated, on the ground that the first-instance court had re-qualified their appeal in accordance with the requirements set out by the legislation in force, and by observing the principle of lawfulness. Consequently, it considered that there was no circumstance of public order or unlawfulness justifying the said request. 23. On 22 June 2006 the applicants informed the Court that although they had repeatedly requested the first-instance court to allow them to prove that the value of the disputed property was greater than EUR 27,000, their requests had been refused. 24. Article 103(1) and (2) of the former Romanian Code of Civil Procedure provides that failure to lodge any form of appeal within the lawfully allowed time-limit results in deprivation of the said right, except when the law provides otherwise or the party proves that it has been impeded from doing so by an unforeseen circumstance. In the latter case the right can be exercised within fifteen days of the date the impediment ceased to exist. 25. Articles 282, 287 and 292 of the former Romanian Code of Civil Procedure provide that judgments of a first-instance court are subject to appeal within fifteen days of the date of notification. The reasons for appeal must be submitted by the parties at the latest at the time of the first hearing before the court. The failure to submit the reasons for appeal within the allowed time-limit does not lead to annulment of the appeal, but removes the opportunity to raise additional issues of fact and law that had not been raised before the first-instance court. 26. Articles 2821 (1) (amended by Law no. 195/2004 which entered into force on 29 May 2004), 299, 301 and 3021 of the former Romanian Code of Civil Procedure provide that judgments delivered in respect of disputes where the object of the dispute is valued at less than one billion Romanian lei (approximately EUR 27,000) are not subject to appeal. Judgments not subject to appeal are subject to appeal on points of law (recurs). An appeal on points of law may be lodged within fifteen days of the date the judgment was notified to the parties. The reasons for the appeal on points of law must be submitted within the same fifteen-day period, or the appeal on points of law will be declared null. 27. Article 303(5) of the former Romanian Code of Civil Procedure provides that the president of the court which receives the request for an appeal on points of law can return it for changes to the party presenting it if it does not meet the lawful requirements extending the time-limit for the appeal on points of law by five days.
| 0
|
train
|
001-22326
|
ENG
|
FRA
|
ADMISSIBILITY
| 2,001
|
HAMAÏDI v. FRANCE
| 1
|
Inadmissible
| null |
The applicant is a Tunisian national. He was born in 1964 and lives in Tunisia. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant came into France in 1964 when he was four months old and lived there continuously with his family until he was deported to Tunisia in July 1995. He has eight brothers and sisters, five of whom have French nationality. He received all his school education in France. On 30 May 1996 he married a French national. He also has a twelve-year-old daughter of French nationality from a previous relationship. In a judgment of 15 May 1995 the Carcassonne Criminal Court sentenced the applicant, who had a residence permit valid from 11 April 1983 to 10 April 1986, to three months’ imprisonment for attempted burglary, but did not enforce his previous suspended sentences. The court also dismissed his application for the prison sentence to run concurrently with the sentence imposed by the same court on 17 April 1985 for a handling offence. In a judgment of 21 January 1986 the Montpellier Court of Appeal upheld that judgment after noting, inter alia, that the applicant already had a number of earlier convictions. The applicant did not apply for renewal of his residence permit when it expired on 10 April 1986. On 25 September 1986 the Auxerre Criminal Court sentenced the applicant to eight months’ imprisonment, together with a three-year prohibition on residing on French territory, for theft offences and possession of narcotics. In a judgment of 7 July 1987 the Carcassonne Criminal Court sentenced the applicant to one month’s imprisonment, together with a three-year prohibition on residing on French territory, for unlawfully entering French territory. In a judgment of 13 October 1987 the Montpellier Court of Appeal upheld that judgment. On 21 February 1989 it dismissed an application to have the exclusion order lifted. On 9 September 1994 the Chalon-sur-Saône Criminal Court sentenced the applicant to fifteen months’ imprisonment, together with a three-year prohibition on residing on French territory, for burglary and illegally staying in France. In a judgment of 3 November 1994 the Dijon Court of Appeal increased the prison sentence to eighteen months. It noted, among other things, that the applicant had entered France illegally in 1992 and had since been staying there without a valid residence permit. The applicant appealed on points of law, but did not lodge any grounds in support of his appeal. On 9 January 1995 the Court of Cassation dismissed his appeal. On 22 July 1995 the applicant was deported. On 31 July 1995 the applicant applied to the Court of Appeal to have the order excluding him from French territory lifted. In a judgment of 14 December 1995 the Dijon Court of Appeal dismissed his application on the following grounds: “Hamaïdi Rezeck has applied for the additional measure prohibiting him from residing on French territory to be lifted on account of the material and financial difficulties he has encountered in Tunisia since being forcibly repatriated. Hamaïdi Rezeck left France on 22 July 1995 and wrote to the court on 31 July 1995. The difficulties he has encountered, assuming them to be genuine, are surmountable and do not in any way justify lifting the prohibition order especially as the individual in question has been convicted under different identities, lives by his wits and has no clear profession. The said application must accordingly be dismissed”. On 24 April 1996 the applicant got married in Tunis to a French national, S.C. On 30 May 1996 the marriage-certificate details were entered in the Register of Births, Marriages and Deaths at the French Consulate in Tunis. On 18 January 1997 S.C. had a son, A.C. In November 1997 the applicant lodged a further application for the order excluding him from French territory to be lifted. He stated that he wanted to live in France again with his family and explained that he had had a French girlfriend at the time of his deportation. In a judgment of 5 March 1998 the Dijon Court of Appeal dismissed his application on the ground that the applicant had no official address, no job and no stable home in France. At the end of 1998 the applicant, for whom the exclusion order had ceased to be effective on 18 July 1998, applied for a short-stay visa for France. He requested leave to stay there in December 1998 in order to comply with a summons from the Niort tribunal de grande instance issued in divorce proceedings filed by his wife. The French Consulate in Tunis requested him to produce the summons in question. The applicant sent the Consulate a summons to a hearing on 15 March 1999. His application for a visa was refused on an unknown date. According to the Government, it was refused because it was inconsistent.
| 0
|
train
|
001-91880
|
ENG
|
NLD
|
CHAMBER
| 2,009
|
CASE OF POPPE v. THE NETHERLANDS
| 3
|
No violation of Art. 6-1
|
Alvina Gyulumyan;Corneliu Bîrsan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Pieter Van Dijk
|
6. The applicant, Mr Bart Poppe, is a Netherlands national who was born in 1966 and lives in Amsterdam. 7. In April 2000 the applicant was arrested on suspicion of various drugs-related offences. He was subsequently charged – as co-actor (medepleger) in a group of eight persons – with trafficking “hard” drugs, preparation of the offence of drug trafficking, handling, and participation in a criminal organisation. In addition, he was separately charged with the unlawful possession of a firearm. 8. The applicant’s trial was due to start before the Haarlem Regional Court (arrondissementsrechtbank) on 1 March 2001. By that time, the applicant had become aware that a number of co-accused had already been tried and convicted by the same tribunal. In the proceedings against his co-accused C1, C2, C3 and C4 the Regional Court had included the same president, X, and senior judge (oudste rechter), Y, who were to sit on the bench that would deal with his case. Prior to the hearing, counsel for the applicant wrote a letter to the president of the trial chamber requesting him and the senior judge to stand down because of their involvement in the trials of those co-accused. X and Y did not stand down, and on the day of the hearing a formal challenge application (wrakingsverzoek) was lodged on behalf of the applicant. The Challenge Chamber (wrakingskamer) dismissed the application, considering that the mere fact that two members of the trial chamber had convicted a number of co-accused of offences relating to the offences with which the applicant had been charged did not as such entail that those members were biased in the criminal proceedings against the applicant. According to the Challenge Chamber, the arguments adduced by counsel for the applicant did not admit of the conclusion that the judges concerned had already formed an opinion on any role which the applicant might have played in the commission of those offences, and neither did they reveal any extraordinary circumstances indicating bias against the applicant on the part of those judges or indicating that the applicant’s fear of bias was objectively justified. 9. On 15 March 2001, the Regional Court found the applicant guilty of the charges against him, except for the charge of handling of which he was acquitted. Taking into account that the applicant had not played a prominent role but rather a facilitating one within the organisation, the Regional Court sentenced him to three years’ imprisonment. 10. The applicant lodged an appeal with the Amsterdam Court of Appeal (gerechtshof). In the course of these proceedings, the complete judgments rendered by the Haarlem Regional Court in the cases against the co-accused C3 and C4 became available, only abridged versions not containing the evidence relied on by the Regional Court having been available at the time of the applicant’s trial by the Regional Court. The applicant referred to these complete judgments in support of his argument that the Regional Court had lacked impartiality due to the fact that X and Y had participated in the trials against co-accused. The Regional Court’s judgment concerning co-accused C3 included the following considerations: “D was the linchpin (spil) of the organisation in the Netherlands, whose aim it was to import and export ‘hard’ drugs. C, [the applicant] and W were D’s confidants in this context, with the latter making use of the facilities and/or services with which these three could provide him... As far as the export of amphetamine is concerned, D was also the organiser of this, and C3 the financier. C2 supplied the drugs, while K, [the applicant] and H carried out the actual work.” The judgment concerning co-accused C4 included the following: “The duo D-C4 constituted the linchpin of the organisation. ... C and [the applicant] were confidants of D, with the latter making use of the facilities and/or services with which these two could provide him.” 11. In the course of a hearing held on 23 April 2002, the Court of Appeal rejected the applicant’s plea for the case to be remitted to the Regional Court. Examining whether the applicant’s fear of a lack of impartiality of judges X and Y could be objectively justified, it held: “Contrary to what has been adduced by counsel, no such objective justification can be found in the earlier considerations of the Regional Court. Those earlier considerations do not, after all, entail that the examination in the present case of the reproach made of [the applicant] in respect of participation in the same criminal organisation and of involvement in the import and export of ‘hard’ drugs, in particular amphetamine, was anticipated. It is the normal statutory task of the judge ... only to rule on the basis of the indictment and further to the trial of the accused, excluding from his consideration his decisions reached in other cases of other accused. Special circumstances constituting a compelling indication to find that a fear held by [the applicant] may be objectively justified are not contained in counsel’s arguments or in the circumstances that have otherwise become apparent. The finding relating to [the applicant] as expressed in the earlier judgments is not so specific and/or has not been reasoned in such a way as to lead to a different conclusion. ... It is also relevant that there is no indication that the Regional Court has in any way felt itself bound by the findings of the previous judgments when dealing with and deciding on the case of [the applicant]. In particular it has not been argued, and the Court of Appeal fails to see, that the Regional Court has based its judgment in any way on any decision taken in those earlier judgments. On the contrary, it appears from the case file that the Regional Court examined [the applicant’s] case in its entirety, without even one of the questions which the Regional Court had to answer being considered as having been dealt with in the earlier judgments. This is in particular also the case in respect of the questions whether [the applicant] participated in the criminal organisation referred to in the indictment and whether he was involved in the import and export of ‘hard’ drugs and in particular of amphetamine.” 12. The Court of Appeal held a hearing on the merits of the case on 26 November 2002. Asked to state the reasons why he had lodged his appeal, the applicant replied that he had not been wrongly convicted but considered the sentence excessive. 13. On 10 December 2002 the Court of Appeal gave judgment. It quashed the judgment of the Regional Court and, deciding anew, convicted the applicant of being a co-actor in the offences of drug trafficking and participation in a criminal organisation. The conviction was based on the applicant’s confessions before the police and in open court and on other evidence, namely transcripts of recorded telephone conversations, official reports of police observation and of the interception in transit of quantities of illegal narcotics, and statements of co-accused. The applicant was again sentenced to three years’ imprisonment. 14. In the meantime, on 17 September 2001, a differently composed bench of the same Court of Appeal, in the criminal proceedings against the applicant’s co-accused C3, accepted that C3 had an objectively justified fear of bias on the part of the first-instance court and remitted his case for retrial. That first-instance court – the Haarlem Regional Court – had held in its judgments relating to three co-accused that C3 “[had] maintained the contacts abroad and also provided the necessary finances.” 15. The applicant lodged an appeal on points of law (cassation) with the Hoge Raad, the highest court of criminal jurisdiction. He submitted that the decision of the Court of Appeal to dismiss his arguments relating to the lack of impartiality of the Regional Court and the refusal to remit his case to the Regional Court was contrary to Article 6 of the Convention. He further contended that he had been deprived of the opportunity to have his case considered by an impartial tribunal at first instance, which made the trial as a whole unfair. 16. On 18 May 2004 the Hoge Raad upheld the appeal on points of law because the length of proceedings had exceeded a reasonable time. It therefore quashed the judgment of the Court of Appeal, but only in respect of the sentence, which was reduced by two months to two years and ten months. The Hoge Raad rejected the applicant’s arguments relating to the alleged bias on the part of judges X and Y. 17. An appeal can only be lodged against the first-instance judgment in its entirety, although cases joined at first instance can be disjoined at the appeal stage (Article 407 of the Code of Criminal Procedure). The appeal proceedings involve a complete rehearing of the case. Both the prosecution and the defence may ask for witnesses already heard at first instance to be heard again; they may also produce new evidence and request the hearing of witnesses not heard at first instance (Article 414). The defence enjoys the same rights as it does at first instance (Article 415). 18. Both the prosecution and the defence may challenge (wraken) judges on the ground of facts or circumstances that might be detrimental to judicial impartiality (Article 512).
| 0
|
train
|
001-114308
|
ENG
|
BGR
|
ADMISSIBILITY
| 2,012
|
DZHIDZHEVA-TRENDAFILOVA v. BULGARIA
| 4
|
Inadmissible
|
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
|
1. The applicant, Ms Violina Stancheva Dzhidzheva-Trendafilova, is a Bulgarian national who was born in 1953 and lives in Sofia. She was represented before the Court by Mr S. Trendafilov, a lawyer practising in Sofia. 2. The Bulgarian Government (“the Government”) were represented by their agents, Ms N. Nikolova and Mr V. Obretenov, of the Ministry of Justice. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In the State Gazette of 5 February 2008 the Supreme Judicial Council published a notice for a competition based on performance appraisal for five posts of judge at several administrative courts (“the competition”). 5. Fifty candidates applied for the vacant posts. 6. On 15 February 2008 the applicant filed an application to take part in the competition for the vacant posts at the Sofia City Administrative Court and the Sofia Regional Administrative Court. There were two vacant posts in the former and one in the latter. 7. Thereafter, the applicant and all the other candidates were subjected to performance appraisals by the Supreme Judicial Council’s committee on proposals and performance appraisals of judges (“the committee”). Some of these were carried out in the context of a separate competition. 8. On the basis of the committee’s recommendation, on 10 and 31 July 2008 the Council determined an overall rating for each candidate in accordance with section 193(1) of the Judiciary Act 2007. All but two of the candidates obtained the rating “very good”, the highest possible rating. The applicant was one of the forty-eight candidates in that category. 9. At its session on 31 July 2008, under item 1.2 of the agenda, the Council then proceeded to rank the candidates in accordance with section 193(2) and (3) of the Judiciary Act 2007, on a proposal from the committee’s chairman, and listed them in order of merit, grade and length of service. The list contained fifty candidates and the applicant was ranked eighteenth on the list. Out of the seventeen candidates ranked higher than the applicant, at least twelve had applied for the same posts for which she had applied. 10. Finally, under item 1.3 of the agenda, the Supreme Judicial Council, relying on section 194(1) of the Judiciary Act 2007, took a vote in respect of each candidate in order to decide whether or not to promote him or her to the post of judge at the relevant administrative court, until all the vacant posts had been filled. 11. The voting, which was conducted in secret, followed the order in which candidates were ranked on the list and continued until all the vacant posts were filled. 12. According to the full text of the minutes of the Council’s session, the first twelve candidates did not obtain the requisite majority of thirteen votes and their applications were therefore rejected. Candidate number thirteen obtained one of the two vacant posts at the Sofia City Administrative Court. The voting then continued. The applicant, who was eighteenth on the list, obtained twelve votes in her favour for the posts in one of the two courts for which she had applied and eleven votes in her favour for the post in the other court. As the minimum number of votes required were thirteen (see paragraph 21 below), her applications were rejected (items 1.3.18 and 1.3.18.1 on the agenda). The voting then continued. As regards the posts for which the applicant had applied, the candidate ranked twenty-seventh obtained thirteen votes in her favour and was appointed to the post of judge at the Sofia Regional Administrative Court, and the candidate ranked fortyseventh obtained sixteen votes and was appointed to the second vacant post at the Sofia City Administrative Court (items 1.3.27.1. and 1.3.47. on the agenda). As all the vacant posts had been filled at that point, no voting took place with regard to the remaining three candidates. 13. Other than the number of votes for and against each candidate and the number of abstentions, no further information or reasons were given in the minutes of the session as to why, on what basis and in application of what criteria the Council had voted the way it did for each candidate and why certain judges had been promoted or transferred to the vacant posts while others had not. 14. On 6 August 2008 the applicant appealed to the Supreme Administrative Court against the decisions of the Council adopted under item 1.3 of the agenda of its session of 31 July 2008 (“the appeal”). She argued that the decisions had been adopted in contravention of the applicable legislation, since the Council was required under section 194(1) of the Judiciary Act 2007 to fill the vacant posts by following the order in which the successful candidates were ranked. She considered that her rights had been violated when, instead of her, the Council had promoted to the vacant posts two persons ranked below her in the list, in twenty-seventh and forty-seventh place. She further considered that the whole competition procedure had been violated because, in comparison with her, those persons were on lower grades and had a shorter period of service. 15. On 11 August 2008 the Council officially informed the applicant, by way of an extract from the minutes of the session of 31 July 2008, of its vote of that date by which it had decided not to promote her to the vacant posts. Apart from the number of votes for and against her promotion, no further information or reasons were given as to why the Council had voted the way it had. 16. On 24 and 27 October and 14 November 2008 the applicant supplemented her appeal with the extract from the minutes sent to her on 11 August 2008, together with proof of her grade, length of service and performance appraisal and copies of her employment and insurance records. 17. At a hearing on the applicant’s appeal held on 19 November 2008 the Supreme Administrative Court declared the case ready for decision. 18. In a judgment of 3 December 2008 the Supreme Administrative Court dismissed the applicant’s appeal, holding, inter alia, as follows: “Section 193(2) of the Judiciary Act provides that the [Council] must rank [the candidates] for each post according to the results of the performance appraisals. Paragraph 3 of the same text stipulates that when several candidates for the same post have the same rating in the performance appraisals, priority is given to the candidate on the highest grade. When the candidates are also on the same grade, priority is given to [the candidate] who has served longest in the judiciary. The ranking of the candidates for the posts of judge at the Sofia City Administrative Court and the Sofia Regional Administrative Court is in compliance with the law as regards the overall rating [in the performance appraisal], grade and length of service, whereby the requirements of section 193(3) of the Judiciary Act are also taken into account. The order in which candidates are placed [in the ranking, drawn up] in accordance with the criteria in the text cited [above] for determining priority (grade and length of service) does not oblige the [Council] to appoint candidates to the vacant posts in the order in which they were ranked. It is obliged to vote on candidates’ promotion or transfer [to the vacant posts] in the order in which they are ranked until the vacant posts are filled, as required by section 194(1) of the Judiciary Act. Acting on the basis of operational independence, the [Council] decides on promotion to a post at its own discretion, which includes [an assessment] of candidates’ inherent professional and ethical qualities. This [right to] choose is conferred on the appointing body as part of its discretionary powers and is not subject to judicial review. The complaint concerning the lack of reasoning is manifestly ill-founded. The factual grounds and the specific reasons for adopting the impugned decisions are contained in the documentary evidence in the administrative file and the statements [made by] the members of the [Council]. The positive assessments made in the proposal of the [Council’s] committee on performance appraisals regarding the professional and ethical qualities of [the persons ranked in twenty-seventh and forty-seventh place] were the reasons for the decisions to promote them, [which] predate the adoption of these decisions. In view of the above considerations, the court holds that the appeal by [the applicant] is manifestly illfounded and, as such, should be dismissed.” 19. The judgment was not subject to appeal and therefore became final. 20. The Act came into force in August 2007. The provisions on competitions for career development (promotion) and transfer of judges, as in force at the relevant time and until 1 January 2011, provided as follows: ... “(1) Vacant posts in the courts ..., other than those [at entry level], shall be ... filled following a competition carried out on the basis of performance appraisal. ...” “(1) The committee on proposals and performance appraisal of judges ... shall appraise the performance of every candidate satisfying the requirements for the available post. ...” “(1) The chairperson of the committee on proposals and performance appraisal of judges ... shall submit to the Supreme Judicial Council a reasoned opinion, summarising the results of the performance appraisal for each candidate. (2) The Supreme Judicial Council shall rank [the candidates] for each post in accordance with the results of the performance appraisal. (3) If several candidates for the same post have the same result in the performance appraisal, the candidate on the highest grade shall have preference. If the candidates also share the same grade, preference shall be given to the candidate who has served longest in the judiciary.” “(1) The Supreme Judicial Council shall adopt a decision to promote or transfer judges ... by following the order of ranking until the vacant posts are filled. (2) The decision under paragraph 1 may be appealed against [to the Supreme Administrative Court]. ...” “A performance appraisal shall be carried out: ... 2. For the purpose of a promotion or transfer; ...” “The assessment of [a] judge’s ... qualifications shall be carried out on the basis of general and specific criteria.” “(1) The general criteria for the performance appraisal of a judge ... shall be: 1. the number, type and complexity of files and cases; 2. compliance with deadlines; 3. the number of decisions upheld and repealed and the grounds given; 4. the presence of readily comprehensible and justified reasoning of the decisions; 5. the findings of the inspections carried out by the Inspectorate of the Supreme Judicial Council; 6. the existence of reprimands [against] or incentives [for the judge] during the period covered by the performance appraisal; 7. [the judge’s] adherence to the professional ethical rules for judges ...; (2) For the purpose of the performance appraisal, the overall workload in the relevant court’s area of jurisdiction ..., as well as the workload of the judge being appraised ..., compared with that of other judges ... at the same [court], shall also be taken into consideration.” “(1) The specific criteria for the performance appraisal of judges shall be: 1. compliance with the schedule for conducting court hearings; 2. the ability to conduct court hearings and draft records of proceedings. ...” “(1) The overall rating from the performance appraisal may be positive or negative. (2) The categories of positive overall rating shall be: 1. Satisfactory, 2. Good, 3. Very good. ...” “(1) The Supreme Judicial Council shall take a decision determining the overall rating [from the performance appraisal]. (2) The decision under paragraph 1 may also contain recommendations to the judge being appraised ..., the implementation of which will be taken into consideration in the next performance appraisal. ...” “(1) In the performance appraisal methodology, the indicators relating to the examination and disposal of files and cases shall be given the greatest weight.” 21. Under section 38(8) of the Act, Supreme Judicial Council’s decisions on proposals for the promotion or transfer of judges must be taken by a majority of the Council’s twentyfive members. It follows that a minimum of thirteen votes are required for a decision to promote or transfer a judge. 22. The Council’s decisions concerning the appointment, promotion, demotion, transfer or dismissal of judges, prosecutors or investigators are adopted by secret ballot (Article 131 of the 1991 Constitution). All other decisions are adopted by open ballot (section 34(2) of the Judiciary Act 2007). Where a decision of the Council is adopted by secret ballot, it is considered – in the case of a decision not to adopt a proposal submitted to a vote – that the negative opinions, if any, expressed by members of the Council in relation to the proposal constitute the reasons for the Council’s decision (section 34(3) of the Judiciary Act 2007). In the case of a decision to adopt a proposal submitted to a vote, the grounds put forward in support of the proposal are deemed to be the reasons given by the Council (ibid.). 23. This decree, adopted by the Supreme Judicial Council, regulates in greater detail the procedure established in the Judiciary Act 2007 for organising competitions within the judiciary for entry level posts, promotions and transfers, and for appointment to senior management posts. 24. In respect of promotions and transfers, section 37(4) provides that the performance appraisal must be carried out following the methodology approved by the Council. The latter regulates in significant detail the documentary information and data to be collected in respect of each judge being appraised and the appraisal forms to be completed. It details the performance indicators to be used when appraising judges, the scores to be allocated under each item and the weight that they are to be given in the performance appraisal. In particular, it provides that judges are also appraised on their adherence to the ethical rules for judges. 25. In the examination of appeals against Supreme Judicial Council decisions refusing promotion to judges or prosecutors, the Supreme Administrative Court, in a series of judgments in 2008, 2009 and 2010, consistently interpreted the provisions of the Judiciary Act 2007 as meaning that the ranking of the candidates determined the order in which the Council had to vote but could not guarantee the outcome of the vote. In all cases the court held that the Council, as the body in which the power to appoint and promote judges and prosecutors was vested, was free to decide on these matters. Judicial review of the lawfulness of its decisions did not extend to the Council’s assessment of the candidates’ qualities (see, among many others, реш. № 11134 от 27 октомври 2008 г. по адм. д. № 10468/2008 г., ВАС, VІІ о., and реш. № 3548 от 18 март 2010 г. по адм. д. № 16558/2009 г., ВАС, VІІ о.). 26. The ethical rules for judges, adopted by the Supreme Judicial Council on 10 March 2004 and replaced on 27 May 2009 by the Judicial Officers’ Code of Ethics, detailed the special requirements imposed on judges as to the manner in which they were to conduct themselves in their professional, private and public lives. 27. The Supreme Judicial Council has the power to appoint, promote, demote, transfer and dismiss – including by way of disciplinary punishment – judges, prosecutors and investigators (Article 129 § 1 and Article 130 § 6 (1) and (2) of the 1991 Constitution). The Council consists of twentyfive members. The presidents of the Supreme Court of Cassation and of the Supreme Administrative Court and the Chief Prosecutor are members as of right (Article 130 § 1). The remaining twentytwo members have to be lawyers possessing high professional and moral qualities and having at least fifteen years of professional experience (Article 130 § 2). Eleven of them are elected by the National Assembly and eleven by the judicial authorities (Article 130 § 3). Out of the latter eleven members, the judges elect six, the prosecutors four and the investigators one (section 17(3) of the Judiciary Act 2007). The term of office of the Council’s members is five years, and is not immediately renewable (Article 130 § 4 of the Constitution). The Council’s sessions are presided by the Minister of Justice, who cannot however take part in voting (Article 130 § 5). 28. The European Commission has repeatedly expressed concern about appointment and promotion decisions in the Bulgarian judiciary. In its 2011 Report to the European Parliament and the Council on Progress in Bulgaria under the Cooperation and Verification Mechanism, it stated, inter alia: “The quality and transparency of several important appointments within the judiciary since the beginning of this year have been questioned, leading to unprecedented public protests and a debate on possible constitutional amendments. In addition, allegations of corruption within the judiciary are still not pursued in a systematic way as recommended by the Commission.”
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train
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001-107735
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ENG
|
AZE
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COMMITTEE
| 2,011
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CASE OF ZAHID MAMMADOV AND OTHERS v. AZERBAIJAN
| 4
|
Violation of Art. 6-1;Violation of P1-1
|
Julia Laffranque;Khanlar Hajiyev;Peer Lorenzen
|
5. All of the applicants have either tenancy rights to their flats on the basis of occupancy vouchers (yaşayış sahəsi orderi) issued by the relevant executive authorities or ownership rights to them on the basis of an ownership certificate issued by the competent domestic authority (see Appendix – Table I). 6. In all five cases, the applicants’ flats were unlawfully occupied by internally displaced persons (“IDPs”) from different regions of Azerbaijan under occupation by Armenian military forces following the ArmenianAzerbaijani conflict over Nagorno-Karabakh. 7. The applicants lodged separate civil actions before the domestic courts seeking the eviction of the IDPs from their flats. 8. On the dates indicated in the Appendix (Table I), the applicants’ claims were granted by different domestic courts, which ordered the eviction of the IDPs from their flats. 9. The respective judgments became final and enforceable. However, the IDP families refused to comply with those judgments and despite the applicants’ complaints to various authorities, the judgments were not enforced. 10. The relevant domestic law is summarised in the Court’s judgment in the case of Gulmammadova v. Azerbaijan (no. 38798/07, §§ 18-24, 22 April 2010).
| 1
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train
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001-105004
|
ENG
|
HUN
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CHAMBER
| 2,011
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CASE OF SZEL v. HUNGARY
| 4
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Violation of Art. 3
|
András Sajó;David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi;Paulo Pinto De Albuquerque
|
5. The applicant was born in 1965 and lives in Budapest. 6. Detained at Unit II of the Budapest Correctional Facility from 9 September 2003 until 30 May 2005, the applicant was finally convicted of aggravated murder and sentenced to fifteen years of imprisonment on 20 April 2006 (case no. 1.Bf.931/2005/33). 7. Subsequently he has been detained at Budapest Prison. At this prison, he has spent altogether over 21 months in various cells of 8.3 m2 ground surface (accommodating three inmates, i.e. 2.76 m2 per person), 21 months in various cells of 6.3 m2 ground surface (accommodating two inmates, i.e. 3.15 m2 per person), over 9 months in a 6.3 m2 cell with single occupancy, and 9 months in a cell of 25 m2 ground surface (accommodating eight inmates, i.e. 3.125 m2 per person). In the material period, the average rate of occupancy of Budapest Prison was 150%; the national rate was 132% in October 2007 and 122% in July 2008. 8. The applicant’s complaint about the overcrowding addressed to the prosecutorial authorities in charge of the lawfulness of detention was to no avail. In reply to his similar complaint, the National Headquarters of Penitentiary Institutions admitted in its letter of 23 July 2008 the existence of the problem of overcrowding but pointed out that the prison authorities had no influence on the number of detainees to be held in the penitentiary institutions.
| 1
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train
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001-58067
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ENG
|
CHE
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CHAMBER
| 1,996
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CASE OF ANKERL v. SWITZERLAND
| 3
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Preliminary objection rejected (non-exhaustion of domestic remedies);No violation of Art. 6-1;Not necessary to examine Art. 14+6-1
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John Freeland
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9. In 1978 Mr Guy Ankerl and his wife moved into a flat on the second floor of no. 3, rue Saint-Léger, Geneva. He subleased the flat from a property-management company, Régie Immobilière SA ("Régie Immobilière"), itself the tenant of a property company, SI Chrysanthemum SA ("Chrysanthemum"), the owner of the building. 10. In the autumn of 1985 Mr Ruffieux became Chrysanthemum’s main shareholder. 11. On 14 November 1986 the property-management company Régie Naef SA ("Naef"), which managed the building in which the flat in issue was located, informed the applicant that renovation and building work was going to be carried out on the block. 12. In a letter of 8 May 1987 Naef gave Régie Immobilière - which was in liquidation - notice to quit the flat with effect from 29 February 1988, the date of expiry of the lease, and requested them to terminate the subtenancy agreement with Mr Ankerl. 13. It would appear that Régie Immobilière asked Naef to collect the rent direct from Mr Ankerl. On 14 July 1987 Naef allegedly sent Mr Ankerl receipts relating to the payment of rent from April to July of that year and - what is denied by the applicant - specified that in collecting the sums in question they were not recognising the existence of any direct legal relationship between Mr Ankerl and Chrysanthemum. 14. In a registered letter of 21 July 1987 Régie Immobilière informed Mr Ankerl that they were terminating the subtenancy agreement with effect from its expiry. The applicant then applied to the Rents and Leases Conciliation Board for an extension of the agreement. No settlement having been reached, he applied to the Rents and Leases Tribunal but subsequently withdrew the application. 15. From February 1988 onwards the management of the block was taken over by the GPR Degenève SA agency ("GPR Degenève"). The latter notified the applicant of their bank account number. In an unanswered letter of 29 February 1988 Mr Ankerl confirmed to the agency that he would in future pay the rent into that account. He maintains that he did so each month from March 1988 to August 1991, taking care to write "rent" on the payment advice slips, without meeting any objection. 16. On 22 April 1988 the applicant and his wife had an interview - the terms of which are disputed – with Mr Linder, the director of GPR Degenève (see paragraph 18 below). 17. On 15 November 1988 Chrysanthemum brought an action for possession in the Canton of Geneva Court of First Instance, alleging that the applicant was occupying the premises unlawfully since his subtenancy agreement had been terminated. Mr Ankerl argued that the court had no jurisdiction ratione materiae, maintaining that he had an orally agreed lease from the plaintiff. The court thus had to determine whether the conduct of the protagonists amounted to an agreement to enter into a lease after the termination of the subtenancy. 18. The court held a hearing on 19 May 1989. It heard Mr Linder (GPR Degenève), Mr Veuillet (Naef) and Mrs Ankerl; Mr Ruffieux (Chrysanthemum) and the applicant also gave evidence. Only the first two were heard as witnesses on oath. The transcript of the testimony reads as follows: "... 1. Mr Jean-Gabriel Linder ... When I resumed [the management of the building in March 1988], Mr Ankerl was occupying the premises but he had no written or oral lease or even a tacit one. It is true that I had an interview with Mr Ankerl on my own initiative ... I wanted to know what Mr Ankerl’s position was. I made it clear to him that in my view he did not have a lease. Mr Ankerl said that he very much wished to remain in the flat on sentimental grounds, having, so he said, written a book there. He may have told me that he had earlier supposedly been granted an oral lease, but I cannot state that with certainty. At all events, Mr Ankerl did not ask me to have a lease drawn up for him. At the end of the interview Mr Ankerl suggested to me that he pay a higher rent in order to be able to stay in the flat. I suppose that implies that he was asking to be given a lease. I told the defendant that I would pass on his request to the landlord. I told him clearly, both at the beginning and at the end of the interview, that I could not take a decision myself. I consequently informed the landlord of the conversation I have just described. He told me that he did not wish to proceed in the matter and he did not give me the reasons. I did not myself communicate the shareholder’s position to Mr Ankerl but, on the other hand, I did send the file to our lawyer, who must have informed him of the shareholder’s position. My office staff must, it would seem, have communicated our account number to Mr Ankerl when we took over from Naef. ... I heard about an agreement that had earlier been made between Naef and Mr Ankerl to the effect that Mr Ankerl should pay the rent direct to Naef. 2. Mr Dominique Veuillet ... I have worked for Naef since 1 March 1983. ... We knew that Mr Ankerl was in de facto occupation of the premises ... ... In 1986 or 1987 Mr Ankerl came to see me and told me that his position vis-à-vis Régie Immobilière was a rather special one. I cannot remember now the exact reasons. The defendant asked that we should draw up a lease in his name. At the same time Régie Immobilière had asked us to collect the rent direct from Mr Ankerl ... I myself handed the file over to another property-management company on 31 December 1987, and at that time, as far as we were concerned, Mr Ankerl’s position remained as we had described in our letter of 14 July 1987 ... It is true that on 14 November 1986 we had informed Mr Ankerl about the proposed works in the building. That was because we could not ignore his presence in the building. ... 3. Mrs Méryl Ankerl ... I was present at the interview with Mr Linder in April 1988. Mr Linder asked us what our intentions were regarding this flat and we told him that we wanted to stay in it. He then explained to us that the building was going to be made higher and asked whether the works would not inconvenience us. We replied that the works might perhaps inconvenience us but that we would put up with it since we wanted to stay. Mr Linder added that at all events the process would be a long one, because the architect’s plans had not been approved by the Public Works Department. He also told us that during the building work we could occupy another flat in the block and that after the work was completed we could occupy a newly built flat at the top of the house. Or else we could move back into our second-floor flat. When we left, Mr Linder told us that he would keep us informed. When we came out we were really reassured and optimistic. Mr Linder never asked us to look for a flat elsewhere and he did not indicate that we had to leave within a given time. I cannot remember if Mr Linder said that he was going to consult the landlord. I myself had the impression that he had some freedom of action. Mr Ruffieux: I have myself been the director of the plaintiffs since October 1985. I have never set eyes on Mr Ankerl until today. I once replied to a letter he had sent me asking for an interview and I told him that his case was being dealt with by Naef’s legal department. ... It is true that I told Mr Linder that I refused to give Mr Ankerl a lease. We had never accepted that Mr Ankerl had a tenancy and I did not wish us to agree to it. I knew from the beginning that Mr Ankerl was occupying the premises. He is up to date with the rent. I would not have been opposed to a settlement at the outset but relations with Mr Ankerl have become difficult. I have already allowed Mr Ankerl four years. Mr Ankerl: When I concluded the lease with Régie Immobilière, I did not realise that it was a subtenancy. I had consulted a lawyer before signing it. Mr Ruffieux says today that it is not easy to get on with me, but he said before that he wanted us out because he wanted to renovate his building." 19. On 12 October 1989 the court held that there was no lease agreement between the parties and ordered Mr Ankerl to move all property and persons from the flat and restore it to the plaintiffs in good condition. The judgment reads as follows: "... Mr Veuillet, an employee of [Naef], told the Court that the tenant, Régie Immobilière, had asked Naef to collect the rent direct from Mr Ankerl. This arrangement was accepted, the payments being received as an indemnity for unlawful occupation, as appears from a letter of 14 July 1987 ... On 20 January 1988 the new management, the GPR Degenève SA agency, wrote to Régie Immobilière SA, asking that in future the company should pay the indemnity for Mr Ankerl’s unlawful occupation to their own office. Mr Linder, an employee of the new management, told the Court that he had had an interview with Mr Ankerl and had made it clear to him that in his view Mr Ankerl did not have a lease. Mr Ankerl, he said, implicitly requested that a lease should be drawn up, to which Mr Linder said he had replied that it was not for him to decide. Mr Ruffieux, the director and shareholder of the plaintiffs, told the Court that he had never agreed, and did not wish to agree, to enter into a lease with the defendant. However, ... Mr Ankerl had been supplied personally with GPR Degenève’s account number and wrote to that company on 29 February 1988 to inform them that in future he would pay the rent into their account ... That letter does not appear to have been answered, except that, three months later, the lawyer instructed by the landlord wrote to enquire when Mr Ankerl would be leaving. The defendant’s wife - who was present at her husband’s interview with Mr Linder – recalled from that interview that the property-management company had been contemplating offering them another flat in the building for the duration of the works, and that when they had left Mr Linder, the couple had had every reason to be reassured, seeing that they were not being asked to leave the premises. ... In law the only issue which it is necessary to resolve is whether the defendant, since his sublease was terminated, has been given a lease by the landlord. A lease may be entered into orally, although it is to be noted that property-management companies customarily draw up a written agreement. In the instant case no lease has been signed since the termination of the sublease. None of the documents produced discloses any agreement by the plaintiffs to enter into a lease. It remains to be determined whether, by not immediately or clearly replying to the defendant’s letter of 29 February 1988 or by allowing an employee of the property-management company to tell the defendant that he was going to refer back to the landlord, the plaintiffs may – under the doctrine of good faith – have agreed to enter into a lease. The Court reaches the conclusion that, in the circumstances of this case, no lease was entered into orally (the existence of an oral agreement has not been proved) or even implied by the clear conduct of the parties. While it is true that the defendant wishes to remain in the flat, it is not even apparent from the evidence that he has clearly asked for a lease to be drawn up. Despite the unambiguous letters from the plaintiffs, the defendant did not take the trouble to reply in writing. He therefore could not truly suppose – in good faith – that the plaintiffs were implicitly granting him a lease. He had all the less reason to assume a tacit agreement of this kind as, since the termination of the head lease, and accordingly of the sublease, proceedings had been pending for an extension of the lease, during which the landlord had clearly denied being contractually bound to the defendant or wishing to be. Consequently, there is no lease between the parties. ... it must be held that the defendant is on the premises unlawfully. Article 641 para. 2 [of the Civil Code] applies in this case ..." 20. In a judgment of 7 June 1990 the Canton of Geneva Court of Justice dismissed an appeal by Mr Ankerl on the following grounds: "The Court cannot but agree with the court below that there was no contractual relationship between the landlord, Chrysanthemum SA, and Guy Ankerl. It is bold to argue that the existence of a lease is evidenced by the conduct of the landlord or of the landlord’s representatives, who, on the contrary, always emphasised their determination not to enter into a lease with Guy Ankerl for flat at no. 3, rue Saint-Léger, second floor. The fact of having handed over rent receipts accompanied by the letter of 14 July 1987 or of not having replied to the appellant’s letter of 29 February 1988 cannot be construed as meaning that a lease was in existence. It follows, in the absence of any lease, that the Court of First Instance had jurisdiction ratione materiae. ... According to this Court’s case-law, a landlord is entitled to raise his ownership against a subtenant and to rely on Article 641 para. 2 [of the Civil Code], in the absence of any legal relationship between the parties ... The sublease is a lease between the tenant and the subtenant ... Having been given notice for 28 February 1988, Guy Ankerl, from that date, no longer has any right to remain on the premises. ..." 21. The applicant lodged a public-law appeal with the Federal Court against the Court of Justice’s judgment. In his pleading he relied, in particular, on Articles 6 and 14 of the Convention (art. 6, art. 14) and argued: "... the fact that [the cantonal courts] allowed the representative of a party to be heard as a witness on oath created a flagrant inequality vis-à-vis the other party, who by the force of circumstance was not able to call witnesses to whom the oath could be administered. The equality of arms guaranteed both in the Federal Constitution and in the European Convention on Human Rights was not ensured. Such inequality is all the more flagrant where the court dealing with the case has not taken the slightest account in its decision of statements made by a witness, even if heard purely for information purposes. This was a gross breach of the law, which expressly provides, even if it precludes taking the oath, that a spouse may testify and therefore implies that the court dealing with the case will consider that evidence." 22. The First Civil Division of the Federal Court delivered its judgment on 3 October 1990. It declared inadmissible - in particular - the complaint based on a violation of Articles 6 and 14 of the Convention (art. 6, art. 14), as follows: "... On a public-law appeal, the Federal Court will consider only the complaints adequately pleaded ... the notice of appeal must contain, inter alia, a succinct statement of the constitutional rights or legal principles violated, specifying in what the breach consists (section 90 (1) (b) of the Federal Judicature Act). ... In many respects, the present appeal does not comply with this requirement that reasons must be given. This is true ... of the ground based on a breach of Articles 6 and 14 (art. 6, art. 14) [of the] European Convention on Human Rights, of which the appellant makes a bald assertion without providing any explanation." 23. Dismissing the remainder of the appeal, the First Civil Division said: "The appellant also submitted that the Court of Justice had made an arbitrary assessment of the evidence taken by the court below. ... ... If the appellant’s argument, which is not very clear, has been understood correctly, the cantonal appellate court inadmissibly took into account the interview that Mr Linder had with the appellant in April 1988 in the presence of the appellant’s wife, in that it completely ignored her statements and only took Mr Linder’s statement into consideration. In this connection it must be pointed out that the appellant’s wife was heard only for information purposes and without taking the oath, in accordance with Article 226 [of the] Civil Proceedings Act [of the Canton of Geneva]. According to commentators on Geneva’s Civil Proceedings Act, however, hearing a witness for information purposes is of purely informative import and has no probative value ... There was therefore nothing arbitrary in the instant case in not taking account of the explanations provided by Mrs Ankerl. The appellant did not, moreover, show in what way the cantonal appellate court had unsustainably interpreted the statements made by the sworn witness Jean-Gabriel Linder. Contrary to what he appeared to be arguing, the court below did not infer from those statements that the witness had indicated to the appellant that he would have to leave the flat. It merely found that Mr Linder `confirmed that he would pass on to the landlord Guy Ankerl’s wish to enter into a new lease’. The appellant did not attack that finding. ... The present appeal is manifestly ill-founded, and it must accordingly be dismissed in so far as it is admissible." 24. Mr and Mrs Ankerl left the flat in issue on 16 October 1991. 25. The relevant provisions of the Canton of Geneva Civil Proceedings Act of 10 April 1987, which came into force on 1 August 1987, are the following: "Unless otherwise laid down by law, the court shall freely assess the results of measures taken to obtain evidence." "Anyone of sound mind who has been lawfully summoned shall be required to appear as a witness to give evidence on oath." "1. The following cannot be heard as witnesses: (a) lineal relatives of one of the parties; (b) brothers and sisters; (c) uncles and nephews; (d) relatives of the same degree by marriage; (e) spouses, even if divorced. 2. The parties may, however, have these persons heard as witnesses, with the exception of descendants, in proceedings for withdrawal of parental authority, in matters concerning personal status and in cases concerning judicial separation, divorce and measures to preserve marital union." "The persons referred to in Article 225 para. 1 may be heard as witnesses in other cases without distinction, but without taking the oath and solely for information purposes. ..." 26. Section 90 of the Federal Judicature Act of 16 December 1943 provides: "1. In addition to identifying the order or decision being appealed against, the notice of appeal must contain: (a) the appellant’s submissions; and (b) a statement of the main facts and a succinct statement of the constitutional rights or legal principles violated, specifying in what the breach consists. 2. ..."
| 0
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train
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001-81274
|
ENG
|
HRV
|
CHAMBER
| 2,007
|
CASE OF TOMLJENOVIC v. CROATIA
| 4
|
Violation of Art. 6-1
|
Christos Rozakis
|
4. The applicant was born in 1934 and lives in Zagreb. 5. The applicant was teaching biology and chemistry and was the headmaster of V.N. Elementary School in Zagreb. By its decision of 22 December 1995 the Ministry of Education and Sport (Ministarstvo prosvjete i športa) relieved the applicant of his post of headmaster and dismissed him from work on account that he had reached the retirement age. 6. On 3 January 1996 the applicant brought an action in the Administrative Court (Upravni sud Republike Hrvatske) against that decision. 7. On 9 October 1997 the Administrative Court declined its jurisdiction in the matter, and on 6 May 1998 forwarded the case to the Zagreb Municipal Court (Općinski sud u Zagrebu). 8. On 4 September 1998 the Municipal Court invited the applicant to supplement his claim, which the applicant did within the time-limit indicated. The court held hearings on 20 November 2000 and 5 February 2001. 9. On 17 December 2001 the Municipal Court, considering that it lacked jurisdiction in the matter, made an application to the Supreme Court (Vrhovni sud Republike Hrvatske) with a view to resolving the negative conflict of jurisdictions. 10. On 22 January 2002 the Supreme Court ruled that the Administrative Court was competent to hear the applicant's case. 11. Following the transfer of the case back to the Administrative Court, on 31 October 2002 that court ruled in favour of the applicant. It quashed the impugned decision of 22 December 1995 and remitted the case to the Ministry. 12. Since the Ministry failed to give a new decision within the statutory time-limit of 30 days, on 5 November 2003 the applicant requested the Administrative Court to do so (see paragraph 16 below). In their reply to his request, the Ministry submitted that it was no longer competent to issue such a decision owing to the change in legislation governing primary education. On 6 May 2004 the Administrative Court, acting as a court of full jurisdiction, issued a decision entirely substituting for that of the Ministry. It dismissed the applicant's request by accepting that the Ministry no longer had competence in the matter. However, it found that in those circumstances the Ministry should have forwarded the case-file to a body authorised under the new legislation to issue such a decision – the school board of the V.N. Elementary School. The Ministry did so on 26 June 2006. 13. It appears that the case is currently pending before the school board. 14. Meanwhile, on 8 March 2004 the applicant lodged a constitutional complaint about the length of the proceedings. On 1 July 2004 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant's complaint. It examined only the length of the proceedings in their part between the introduction of the applicant's request to the Administrative Court on 5 November 2003 and the lodging of the constitutional complaint. The Constitutional Court dismissed the constitutional complaint finding that the proceedings had lasted only four months and three days. 15. The relevant part of section 63 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) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the individual'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 competent court 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.” 16. The relevant provisions of the Administrative Disputes Act (Zakon o upravnim sporovima, Official Gazette nos. 53/1991, 9/92 and 77/92) provide as follows: Section 64(1) provides that, in the execution of the Administrative Court's judgment, the administrative authority shall issue its decision immediately but at the latest within 30 days. Otherwise, a party may by a special submission request it to do so. If the authority does not issue a decision within seven days following that request, a party may apply to the Administrative Court. Section 64(2) provides that if such an application was made, the Administrative Court shall first ask the administrative authority to give reasons for its omission. The authority shall reply immediately but at the latest within seven days. If the authority fails to do so, or if the reasons given do not justify the failure to decide, the Administrative Court shall give a decision entirely substituting for the decision of the administrative authority.
| 1
|
train
|
001-108199
|
ENG
|
TUR
|
ADMISSIBILITY
| 2,011
|
BRUNNER v. TURKEY
| 4
|
Inadmissible
|
András Sajó;Françoise Tulkens;Guido Raimondi;Paulo Pinto De Albuquerque
|
The applicant, Ms Elisabeth Brunner, is an Austrian national who was born in Austria and lives in Istanbul. She was represented before the Court by Mrs G. Altay and Mr H. Karakuş, lawyers practising in Istanbul. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant describes herself as a human rights activist and a worker in Turkey. According to her submissions, on 18 April 2004 she was kidnapped by four people while she was on her way to attend a seminar. She claims that these people harassed her, threatened her with death to induce her to act as a spy for them and to give away the names of her international collaborators, and stubbed out cigarettes on her arms when she refused to do so. She then lost consciousness on receiving a blow to the head. The following day, 19 April 2004, the applicant requested that criminal proceedings be opened against her alleged kidnappers; she claimed that they were police officers. She also requested to be examined at the Forensic Medicine Institute. On the same day the applicant applied to the Human Rights Association, where she was examined by several doctors. The report drawn up afterwards indicates that the blisters caused by cigarette burns and soft-tissue lesions on her body coincided with her description of the events. On 27 April 2005 the Tuzla public prosecutor took the applicant’s statement. After a period during which her requests for information were all refused by the public prosecutor, on 17 April 2008 the applicant issued another request for information about the progress of the investigation. On 23 June 2008 the Tuzla public prosecutor responded to her request, indicating that the investigation was still pending and the perpetrators of the offence were being sought. The applicant was also informed that she would be notified of further developments as they occurred.
| 0
|
train
|
001-58321
|
ENG
|
ESP
|
CHAMBER
| 1,999
|
CASE OF RIERA BLUME AND OTHERS v. SPAIN
| 1
|
Violation of Art. 5-1;Not necessary to examine Art. 9;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
|
Matti Pellonpää
|
12. The applicants, Ms Elena Riera Blume, Ms Concepción Riera Blume, Ms María Luz Casado Perez, Ms Daría Amelía Casado Perez, Ms María Teresa Sales Aige and Mr Javier Bruna Reverter, were born in 1954, 1952, 1950, 1950, 1951 and 1957 respectively and live in Valencia (Spain). 13. At an unknown date in 1983 the Public Safety Department (“the DGSC”) of the Generalitat (government) of Catalonia received through Pro Juventud (“Pro Youth”), an association formed to fight against sects, a request for help from several people who alleged that members of their families had been ensnared by a group known by the name of CEIS (Centro Esotérico de Investigaciones). According to the families’ complaints, those who ran the CEIS managed to bring about a complete change of personality in their followers, leading them to break off ties with their family and friends and inciting them to prostitution and other activities designed to obtain money for the organisation. The DGSC infiltrated an officer into the CEIS to check the truth of the complaints and, in the light of the findings, brought the facts to the attention of the Principal Public Prosecutor at the Barcelona Audiencia Territorial, who forwarded the complaints and the information gathered to the judicial authorities. Acting on this information, Barcelona investigating court no. 6 opened a preliminary investigation in June 1984 and ordered searches of the homes of members of the CEIS, including the applicants. The searches took place on 20 June 1984 and numerous people were arrested, including the applicants. After the applicants were arrested, they were transferred to the seat of the investigating court. In the light of information from A.T.V., an official at the DGSC, which was confirmed by the prosecuting authorities, there was a danger that the members of the sect would react unpredictably if they were released, and might even commit suicide. The duty judge nevertheless decided to release the applicants but gave oral instructions to the police that those detained, including the applicants, should be handed over to their families, to whom it should be suggested that it would be as well to have them interned in a psychiatric centre, on a voluntary basis as regards the persons of full age, in order for them to recover their psychological balance. The judge in question confirmed his oral instruction in a decision of 26 June 1984. In that decision he also ordered the chief of the Catalan police (mossos d’esquadra) to interview and question all those detained during the searches who had subsequently been released. 14. Later, on the orders of L.R.F., the Director-General of Public Safety, the applicants were transferred to the premises of the DGSC. From there, on 21 June 1984, they were taken by members of the Catalan police in official vehicles to a hotel some thirty kilometres from Barcelona, where they were handed over to their families with a view to their recovering their psychological balance. Once at the hotel, the applicants were taken to individual rooms under the supervision of persons recruited for the purpose, one of whom remained permanently in each room, and they were not allowed to leave their rooms for the first three days. The windows were firmly closed with wooden planks and the panes of glass had been taken out. While at the hotel the applicants were allegedly subjected to a process of “deprogramming” by a psychologist and a psychiatrist at the request of Pro Juventud. On 29 and 30 June 1984, after being informed of their rights, they were questioned by C.T.R., the Assistant Director-General of Public Safety, aided by A.T.V., in the presence of a lawyer not appointed by the applicants. On 30 June 1984 the applicants left the hotel. 15. As soon as they had regained their freedom, the applicants lodged a criminal complaint alleging false imprisonment, offences against the exercise of personal rights, falsification of documents, usurpation of functions and misappropriation of goods against A.T.V., C.T.R. and L.R.F., the latter as Director-General of Public Safety, and against all other persons who had taken part in depriving them of their liberty. In the criminal proceedings thus instituted the prosecuting authorities filed submissions against the persons mentioned above accusing them of false imprisonment. 16. In a judgment of 7 March 1990 the Barcelona Audiencia Provincial acquitted the accused, holding that the acts complained of had been prompted by a philanthropic, legitimate and well-intentioned motive and that there had been no intention of depriving the applicants of their liberty, so that the offence of false imprisonment was not made out. 17. The prosecution and the applicants lodged appeals on points of law, which were dismissed by the Supreme Court on 23 March 1993. In its judgment the Supreme Court held, inter alia: “… A detailed examination of the facts held to have been proved shows that there is no doubt that the appellants were placed in detention [detención] (the expression ‘administrative detention’ [retención] has no validity, since it is not defined in our legal order), but the detention took place with the sole aim – a very laudable and plausible one – of avoiding worse evils than those complained of by the appellants, so that there was no unlawfulness strictly and properly understood. … Furthermore, that there was no unlawfulness, the criterion required by law, is all the plainer if it is borne in mind that it was the appellants themselves, together with the closest members of their families, who consented to undergo deprogramming tests which logically required them to be physically isolated initially. That isolation lasted for a very limited time and, it must be emphasised, with the agreement of those concerned and their families. … It cannot be maintained, in order to argue the contrary, that the wishes of the persons who underwent deprogramming could only have been overridden by the members of their families after proceedings to establish incapacity, seeing that the position of those concerned called for immediate treatment, without any delay, as appears from the judgment under appeal, which refers to fears that the members of the sect might commit suicide. In conclusion, the offence of false imprisonment cannot be said to have been committed since, firstly, there was no intention on the part of the defendants to deprive anybody of his or her liberty and, on the contrary, their intention, which has been fully proved, was to prevent imminent and very serious harm befalling the persons concerned, such that the mens rea for the offence was lacking. In the second place, the requirement of ‘unlawfulness’ was lacking inasmuch as the defendants’ conduct was in keeping with what society and the legal order, taken as a whole, require in situations and at times such as those of the instant case.” 18. The applicants lodged an appeal (recurso de amparo) with the Constitutional Court. In their appeal they alleged violations of the right to religious freedom (Article 16 of the Constitution), the right to liberty (Article 17 of the Constitution), the right to freedom of movement (Article 19 of the Constitution), the rights of the defence during their detention (Article 24 § 2 of the Constitution) and the right to a fair trial (Article 24 § 1 of the Constitution). They asked the Constitutional Court to quash the judgments of the Audiencia Provincial and the Supreme Court, to order the officials complained of to pay five million pesetas as compensation for the damage sustained and to make a declaration to the effect that the Generalitat of Catalonia was liable in default. 19. In the proceedings in the Constitutional Court Mr José Victor Riera Blume was held to have withdrawn on account of failure, through his own fault, to comply with a formal requirement. 20. On 10 March 1997 the Constitutional Court dismissed the amparo appeal. In section 2 of the “As to the law” part of the judgment the court first examined a preliminary objection raised by Crown Counsel that appropriate remedies had not been used, namely a habeas corpus application or contentious-administrative proceedings, in the following terms: “This Court, while holding that a person in possession of a fundamental right could choose the most effective remedy for infringement of that right …, has also stated that that had to be understood ‘subject, of course, to the possibilities afforded by each class of court’. Consequently, in order to resolve the issue raised by Crown Counsel, it would be necessary to determine what those possibilities were in the criminal courts. In the instant case, however, it is not necessary to do so since the appeal is being brought not against administrative acts but against judicial decisions. That being so, the issue is not – and cannot be – whether or not use was made of an effective judicial remedy (section 43(1) of the CCA [Constitutional Court Act]) but whether the remedies afforded by the judicial process chosen (section 44(1)(a) CCA) have been exhausted, an issue that has not been canvassed and could not be since the appellants went to the highest court, the Supreme Court, which heard the appeal on points of law in the case.” 21. That being said, the Constitutional Court pointed out, firstly, that there was no fundamental right to have a person convicted and, secondly, that it could not protect fundamental rights by quashing final substantive judgments whereby defendants had been acquitted. It also pointed out that, according to its case-law, the Constitution did not confer, as such, a right to secure criminal convictions of third parties. Furthermore, decisions of criminal courts were never decisions affecting fundamental rights of the prosecuting party. The court added that the decisions being challenged had not infringed any of the rights relied on by the five remaining appellants, seeing that they were limited to declaring that the acts with which the defendants were charged did not amount to the offences for which they were being prosecuted. 22. Several provisions of the Spanish Constitution are relevant: “1. Freedom of ideas, religion and worship shall be guaranteed to individuals and communities without any restrictions on its expression other than those necessary for the maintenance of public order as protected by law. 2. No one shall be required to declare his ideological, religious or other beliefs. 3. ...” “1. Everyone shall have the right to freedom and security of person. No one may be deprived of his liberty other than in accordance with the provisions of this Article and in the circumstances and form provided by law. 2. ... 3. Everyone who is arrested must be informed immediately, and in a manner he can understand, of his rights and of the reasons for his arrest and cannot be required to make a statement. The assistance of a lawyer is guaranteed to persons detained in police investigations or criminal prosecutions, as provided by law. 4. A habeas corpus procedure shall be established by law for immediately bringing before a judge any person arrested unlawfully. ...” “1. Se garantiza la libertad ideológica, religiosa y de culto de los individuos y las comunidades sin más limitación, en sus manifestaciones, que la necesaria para el mantenimiento del orden público protegido por la ley. 2. Nadie podrá ser obligado a declarar sobre su ideología, religión o creencias. 3. ...” “1. Toda persona tiene derecho a la libertad y a la seguridad. Nadie puede ser privado de su libertad, sino con la observancia de lo establecido en este artículo y en los casos y en la forma previstos en la ley. 2. ... 3. Toda persona detenida debe ser informada de forma inmediata, y de modo que le sea comprensible, de sus derechos y de las razones de su detención, no pudiendo ser obligado a declarar. Se garantiza la asistencia de abogado al detenido en las diligencias policiales y judiciales, en los términos que la ley establezca. 4. La ley regulará un procedimiento de hábeas corpus para producir la inmediata puesta a disposición judicial de toda persona detenida ilegalmente. ... ”
| 1
|
train
|
001-97455
|
ENG
|
SRB
|
CHAMBER
| 2,010
|
CASE OF DERMANOVIC v. SERBIA
| 3
|
No violation of Art. 3;Violation of Art. 5-3;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
|
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
|
5. The applicant was born in 1966 and lives in Novi Sad. 6. On 24 March 2003 the competent authorities opened a criminal investigation against the applicant on suspicion of abuse of power (“zloupotreba službenog položaja”) and forging of official documents (“falsifikovanje službenih isprava”). On the same day, the applicant was examined by the investigating judge, at which time he submitted a temporary address. 7. On 5 May 2003 the police searched the flat owned by the applicant situated at the address of his permanent residence (prebivalište). The applicant's mother, who was present at the search, stated that the applicant had not lived in that flat for over two years. According to the official police report, the police then contacted the applicant by telephone and he informed them that he was looking for a new flat. 8. Subsequently, following a request by the Novi Sad District Public Prosecutor's Office (Okružno javno tužilaštvo Novi Sad), on 2 June 2003 the Novi Sad District Court (Okružni sud u Novom Sadu) ordered that the applicant be detained on remand under section 142(2)(1) of the Criminal Procedure Code (risk of flight) and that an arrest warrant be issued against him. The applicant appealed against that decision. On 4 June 2003 his lawyer submitted the applicant's new address to the Novi Sad District Court, alleging that he had already done so on 8 May 2003. However, on 23 June 2003 the Supreme Court dismissed the appeal against the detention order. 9. On 17 October 2003 the Public Prosecutor's Office indicted the applicant and shortly thereafter, on 11 December 2003, the District Court quashed the detention order against the applicant and set bail at EUR 40,000. The applicant appeared at the court hearing in person. However, the Supreme Court quashed the bail decision and remitted the case. Thereafter, the District Court again ordered that the applicant be remanded in custody because his behaviour thus far had indicated a high risk of flight; the Supreme Court upheld that decision. 10. Meanwhile, on 6 February 2004 the applicant was brought before the District Court (investigating) judge (“istražni sudija”), and was remanded in custody. The applicant claimed that he had gone to the police station of his own accord, but the Government disagreed. There appears to have been no official police report on the applicant's arrest. The only document relating to the event of that date – a note made by the investigating judge of the Novi Sad District Court – states as follows: “It is established that the [police] officers... at 10.30 a.m. brought [the applicant] before the... investigating judge of this court... The accused states that at 9 a.m. this morning he voluntarily reported to the Novi Sad police department, because he heard that they were looking for him...” 11. The applicant requested to be released on bail and offered EUR 50,000. His request was dismissed as insufficient, since “the amount [he had] obtained by unlawful actions was several times higher than the amount offered” and thus provided no guarantee that he would not abscond. His detention was thereafter regularly extended because of such a risk. 12. On 9 November 2004 the Novi Sad District Court sentenced the applicant to four and a half years' imprisonment. On 15 June 2005 the Supreme Court quashed that judgment and remitted the case, extending at the same time the applicant's pre-trial detention to prevent his absconding. 13. The applicant filed several applications for release on bail, but his requests were dismissed. 14. In the resumed proceedings, on 18 May 2006 the District Court again found the applicant guilty and sentenced him to three years' imprisonment. However, that judgment was .quashed by the Supreme Court on 6 December 2006 and the applicant's detention was extended. 15. In early 2007 the applicant requested release from detention on account of inadequate medical care, but his request was dismissed in April 2007. 16. In the remitted proceedings, on 14 May 2007 the applicant's counsel objected to an expert opinion submitted to the court. She explained the applicant's health condition in detail, complained about the inadequacy of his medical treatment in detention and stressed that his health had deteriorated to a large extent owing to the duration of his detention. 17. In a fresh judgment in the applicant's case delivered on 7 June 2007, the court sentenced the applicant to four years' imprisonment, but decided to release him. However, the applicant was ordered not to leave his habitual place of residence and to report to the District Court each month, failing which he might be returned to custody. 18. The applicant was examined for the first time on 9 February 2004, shortly after being taken into custody. The medical report concluded that he had been in good health. 19. During 2004 he was diagnosed with psychiatric problems and was hospitalised on several occasions. In 2005 he suffered from severe back pain and was hospitalised as a result of a hunger strike. In 2006 he was diagnosed with benign breast augmentation. In addition to the public medical care provided, since January 2006 the domestic court had allowed the applicant to have regular consultations with his private doctor. 20. At the end of 2006 the applicant was diagnosed with Hepatitis C. The testing was organised within the framework of voluntary confidential counselling and testing for HIV and Hepatitis (“Dobrovoljno povjerljivo savjetovalište i testiranje”), which at the material time appears to have been available in prison. 21. The applicant claimed that he had been diagnosed already in November 2006, whereas the Government submitted that his diagnosis had been made on 6 December 2006. In his examination of 1 December 2006 the applicant's private doctor made no mention of a Hepatitis C infection. 22. On 25 January 2007 the applicant went on a hunger strike. 23. On 8 February 2007 the applicant was examined by his private doctor, who recommended that he be examined by an infectious diseases specialist. That consultation took place on 13 February 2007, when the applicant underwent further blood tests. 24. As a result of his hunger strike, on 1 March 2007 the applicant was transferred to the Belgrade Prison Hospital because of a rise in his liver enzymes. However, he refused to be examined by the hospital staff, claiming that he had contracted Hepatitis during his last stay there. On 19 March 2007 the applicant's lawyer requested the court that he be returned to the Novi Sad District Prison, and on 28 March 2007 the authorities acted accordingly. On his release from the Belgrade Prison Hospital, the doctors concluded that there were no traces of starvation and that the applicant suffered from drug abuse. 25. On his return, he was again examined by the infectious diseases specialist, who on the basis of further blood tests concluded that his liver enzymes had improved and that he should undergo a liver biopsy, which was performed on 23 April 2007. The biopsy established that the applicant suffered from chronic Hepatitis C with minimal activity and minimal fibrosis. In May 2007 samples were sent for additional tests to determine his genotype in order to start anti-viral treatment. 26. The applicant was released from detention on 7 June 2007, before the genotyping tests were concluded and before he had started receiving treatment for his condition. 27. Pursuant to a medical report dated January 2008, after the applicant had undergone the appropriate anti-viral treatment, his infection was in remission. 28. The relevant provisions of the Code of Criminal Procedure (Zakonik o krivičnom postupku; published in OG FRY nos. 70/01, 68/02, 58/04, 115/05 and 49/07) in force at the material time read as follows: “If there are circumstances indicating that the defendant might abscond, hide, go to an unknown place or abroad, the court may, by a reasoned decision, prohibit him from leaving his place of residence. ... The parties may appeal against a ruling ordering, extending or setting aside [the said] measures ... and the Public Prosecutor may also appeal against a ruling rejecting his request for their application. The Judicial Panel ... shall decide on the appeal ... [within a period of three days] ... The appeal does not stay the execution of the ruling. ...” “A defendant who is to be or has already been detained based only on circumstances indicating that he will abscond ... [or if duly summoned, that he is clearly evading appearance at the main hearing] ... , may remain at large or may be released providing that he personally, or another person on his behalf, gives bail guaranteeing that he will not abscond until the conclusion of the criminal proceedings, and the defendant himself promises that he will not hide or change his place of residence without permission.” “A decision concerning bail before and in the course of a [judicial] investigation shall be rendered by the investigating judge. After the indictment is preferred, the decision on bail shall be rendered by the President of the Chamber and [subsequently] at the main hearing by the Chamber itself.” “For the purposes of the unhindered conduct of the criminal proceedings... detention may be ordered against a person who is under reasonable suspicion of having committed a criminal offence if: (1) he is in hiding or his identity cannot be established, or if there are other circumstances clearly indicating a risk of flight; ...” “Detention shall be ordered by a decision of the competent court. ... A decision on detention shall be served on the person to whom it relates at the time he is deprived of his liberty, but no later than within 24 hours ... A detained person may file an appeal against the decision on detention with the Judicial Panel within 24 hours from the time of its receipt. The appeal, the decision on detention and other files shall immediately be forwarded to the Judicial Panel. The appeal shall not stay the execution of the [impugned] decision. ... In the situation referred to ... [above] ... [,] the Judicial Panel shall rule on the appeal within 48 hours.” “If the defendant is in detention on remand, the second-instance court shall examine the continuation of the reasons for the measure and decide whether or not to extend it. No appeal shall lie against that decision.” 29. The relevant provision of the Enforcement of Criminal Sanctions Act 2005 (Zakon o izvršenju krivičnih sankcija; published in OG RS no. 85/05) reads as follows: “Prisoners are entitled to free medical care. Prisoners who cannot receive adequate medical treatment within the institution shall be transferred to the Special Prison Hospital or other health institution, and pregnant women to a maternity ward for childbirth. Time spent on medical treatment shall be calculated as part of the time of imprisonment.” “(1) Medical treatment of a prisoner is conducted with his consent. (2) Force-feeding of a prisoner is not allowed...” “The enforcement of a detention measure is subject to supervision by the president of the District Court that has jurisdiction for the territory where the main premises of the detention facility are located.”
| 1
|
train
|
001-98537
|
ENG
|
MDA
|
CHAMBER
| 2,010
|
CASE OF VETRENKO v. MOLDOVA
| 3
|
Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award
|
David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
|
5. The applicant was born in 1975 and lives in Chişinău. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. According to the prosecution, M. was invited to a bar on 19 May 1997 by several persons, including R. M. and U., her former neighbours, and the applicant, in whose apartment R. M. and U. rented a room. 8. In the bar they all consumed alcohol and then added a soporific to M.'s glass, after which she fell asleep. R. M. took M., U. and the applicant in his car to a remote area. R. M. and the applicant took M. out of the car and tried to strangle her with a cord. When this failed they tied her limbs and threw her into a well, where she drowned. 9. On 1 June 1997 S. P., a police officer, reported that he was trying to locate T., who could have information regarding M.'s whereabouts. Officer S. P. proposed indentifying the person(s) offering M.'s apartment for sale in order to find T. 10. On 3 June 1997 T., one of M.'s neighbours, made a written statement, giving details about M.'s murder as allegedly told to her by U. She named R. M., U. and S. as perpetrators of the crime. She also mentioned her intention to move to Tashkent, Uzbekistan, where her grandmother lived. On 4 June 1997 officer S. P. filed a report on a conversation with T. in which he reported that T. had stated that the applicant had also been involved in the crime. On 5 June 1997 T. was interviewed by investigator G. and confirmed the events as described in the officer's report. She declared that U. had told her about the details of the crime on 20 May 1997. She did not mention the applicant's name or that he had participated in any manner in the crime. 11. On 4 June 1997 the police found the applicant at his friends' address and told him that he owed them money. He was requested to follow them to the police station, where he was arrested. He was then informed that he, R. M. and U. were suspected of having murdered M. 12. According to the applicant, immediately after his arrest he told the investigator all the details about the murder of M. which he had found out from R. M., including the place where the body had been left. He had not reported the crime earlier for fear of R. M.'s retaliation. However, he was then ill-treated for six hours by the investigators to make him own up to the crime: he was allegedly nearly asphyxiated several times with a gas mask. He was also verbally abused and threatened with more serious forms of ill-treatment. 13. In the evening of 4 June 1997 the applicant made a self-incriminating statement in the presence of a State-appointed lawyer and two witnesses. That lawyer allegedly never participated in the proceedings after the confession had been made. In his statement the applicant described the manner of M.'s murder and the place where her body had been left. He stated that he and R. M. had attempted to strangle M. with a cord, and then tied her up and threw her into a well. No mention was made of hitting M. or causing other injuries to her. The confession was filmed. Before the filming of the confessions, a medical expert was requested to verify the presence of any signs of ill-treatment on the applicant's body. He found no such signs. The applicant expressly stated that he had not been ill-treated. He later declared in court that the filming of his confession had been rehearsed with the investigator, that it was a farce and that he had been warned about further ill-treatment if he were to deny his previous confessions. 14. The applicant was offered the opportunity to sign the minutes of the interview, first before making any statements in order to confirm that he had been read his rights and then at the end of the interview to confirm what he had stated. However, he refused to sign in both places. He later explained this refusal as a last attempt to resist unlawful pressure. 15. The second part of the confession made on the same day involved going to the well where the victim's body had been deposited and filming his confession there. He refused to sign this confession. 16. On 5 June 1997 the applicant made another statement, which was essentially the same as that made the day before. He was allegedly threatened with further ill-treatment if he were to deny his earlier confessions. 17. A forensic report was also drawn up on 5 June 1997, concluding that M. had died from drowning and that her body had a number of bruises on it, caused by repeated hitting, as well as marks on her hands and legs from the cord with which she had been tied. No sign of strangulation was found on her neck. The expert established that M. had died “several days before the report was filed”. 18. In the afternoon of 5 June 1997 the applicant was allowed to call his mother and on 6 June 1997 he declared, in her presence and in the presence of the investigator, that he was innocent. He also mentioned a person with whom he had been held in the same cell at the police station who could confirm that he had been returned to the cell in a poor general state after ill-treatment by the police. However, he was told by both the investigator and his lawyer that the courts would not believe such statements. He allegedly mentioned his ill-treatment and the possible testimony of his cellmate in his complaints to the courts and the prosecutors but these were not followed up. His former cellmate was apparently not questioned. In all his subsequent interviews the applicant maintained his innocence and explained that he had found out about some of the details of the murder, including the place where the body had been deposited, from R. M., who had taken him to the well after the murder. 19. The applicant's new lawyer allegedly noted, on 12 October 1997, that there were no signatures on the minutes of the interview, contrary to the law. On 28 October 1997 signatures appeared on the minutes and the applicant was allegedly forced to sign. He refused and the last-minute intervention of his mother prevented the investigators from ill-treating him further. As a result of her intervention the investigators had to write in the minutes that the applicant had refused to sign. He was allegedly prevented from writing in the minutes the date of 28 October 1997 as the date when he had refused to sign, contrary to Article 124 CCP (see below). On 31 October 1997 the applicant complained about this fact to the prosecution, but to no avail. The minutes of the interview with the applicant of 4 June 1997 were signed by the investigator in charge of the case, G. The statement concerning the applicant's refusal to sign the minutes was countersigned by investigator D., who took charge of the case at a later date. 20. For several months in 1998 he was allegedly detained in inhuman conditions in the cellar of the police inspectorate. 21. In a statement to the police, T.'s sister mentioned Tashkent as a place where their relatives lived. 22. On 16 December 1998 the Chişinău Regional Court acquitted the applicant of the charge of murder and convicted R. M. The court found, inter alia, that it had not been established that the applicant had participated in the crime. It had been established, however, that he had failed to report it when he was told about it by R. M., which was a criminal offence. The court also found that the confessions made by the applicant in the first two days of his detention could not be used as a basis for convicting him because they contradicted other evidence in the case (his refusal to sign the confessions, which raised doubts about their truthfulness; the fact that as from 6 June 1997 and throughout the proceedings he had denied having killed M.; and his alibi, two persons, including I. M., who also lived in the applicant's apartment at the time of the events, having confirmed that he had returned home at about 11 p.m. on the night of the murder). The court convicted the applicant of failing to report the crime committed by R. M., but ordered his release on the basis of an amnesty applicable to lesser crimes. 23. On 4 November 1999 the Court of Appeal upheld the lower court's judgment. The court noted that another person, S., was also suspected of having helped R. M. to murder M. and that his case had been disjoined because he was in hiding. The court also noted that, apart from the self-incriminating statement made by the applicant on 4 and 5 June 1997, there was nothing in the file proving his involvement in the crime. 24. On 21 December 1999 the Supreme Court of Justice quashed those two judgments, finding that the courts had exceeded their competence and had accepted, without giving valid reasons, the applicant's claim that he had not participated in the crime. A re-hearing of the case was ordered. 25. On 21 September 2001 the Chişinău Regional Court convicted the applicant of participation in the murder of M. and sentenced him to 16 years' imprisonment. 26. The court referred to the evidence in the case: witnesses testified to having seen R. M., U., S. and the applicant with M. in a bar on the night of her disappearance. Witness T. testified about the intentions of R. M. and U., who had spoken to her about their plan, to kill M. and sell her apartment. Witness M.E. and I.A. testified about R. M. and U.'s actions to obtain the documents necessary for the sale of M.'s apartment. Witness M.N. stated that she had witnessed S. invite M. to a bar on the day of her disappearance. 27. During a search of the applicant's apartment some of the documents relating to the sale of M.'s apartment had been found. The record of the search did not specify whether the documents were found in the room rented by R. M. and U. or in another place. One relevant document was found during a personal search of R. M. 28. The court referred to the applicant's confession and the version of the prosecution, according to which the applicant and R. M. had attempted to strangle M., and, having failed to do so, had thrown her into a well. The court found that the evidence, in addition to his confessions, proved his guilt. It was established that R. M. and U. had fraudulently obtained various documents from M. with the intention of selling her apartment. Moreover, R. M. had never confessed and the applicant's confessions had been made before the authorities had known the details such as the place where the body was found and the manner of the killing. These circumstances were later confirmed when the applicant showed them that place and when the experts recovered the body in his presence. The forensic report confirmed the types of injuries inflicted as coinciding with the description of the murder given by the applicant. 29. Besides, there had been no evidence that the applicant had been ill-treated, as proved by the medical examination carried out before his first interview. Moreover, the applicant had declared, in the presence of a lawyer, that he had not been ill-treated. The court considered that his refusal to sign the confession was a means of avoiding criminal responsibility. All of the above proved the applicant's guilt. 30. In his appeal, the applicant declared that he had found out the details about the murder from R. M., who had taken him to the crime scene on the day after the murder. He claimed that he had been ill-treated by the police in order to own up to the crime. The judgment did not specify the date of the murder and there was evidence confirming that M. had died later than the prosecution maintained. The applicant also submitted that, before being questioned as an accused, he had told the police all the details about the murder which he had found out from R. M. This contradicted the court's finding that the police had not had any details about the murder before the applicant's interview as a suspect. He refused to sign both confessions but could not offer further resistance due to fear of ill-treatment. He referred to evidence in his criminal file that on the morning of 4 June 1997 his relatives had concluded a contract with a lawyer for his representation but that the investigator had refused to allow that lawyer to represent him. He was then provided with another lawyer whom he did not trust and who did not protect his rights, but was in agreement with the investigator. In addition, the presence of a medical expert and witnesses at the first interview was not a common practice and the expert had not been warned, according to the law, of his criminal responsibility for making false statements. The unusual presence of so many persons at the very first interview only confirmed that the investigator had known that the applicant's will had been broken as a result of ill-treatment and he had agreed to “confess”. The investigator needed to create a very strong appearance of lack of ill-treatment which would be difficult to rebut. The court had failed to even mention the statement of I. M., which constituted an alibi for the applicant because it confirmed that he had returned home much earlier than R. M. and U. 31. On 5 February 2002 the Court of Appeal upheld the first-instance court's judgment. The court found that the guilt of R. M. and of the applicant had been fully proved by the witness statements of T., the police officer who reported on T.'s statements and the results of the forensic report. The court referred to the applicant's confession and the version of the prosecution, according to which the applicant and R. M. had attempted to strangle M. and after they failed to do so had thrown her into a well. The applicant's withdrawal of his earlier statements was considered a means of avoiding criminal responsibility. 32. In his appeal in cassation the applicant reiterated his arguments made earlier and added that U. had testified that he had been back home at 11 p.m., as confirmed by I. M., thus providing him with an unchallenged alibi. Witness T. did not mention his name in her statement. The illtreatment applied to him (making him wear a gas mask and blocking the access of air until he lost consciousness from suffocation) could not have left marks on his body. He referred to the findings of the forensic report, which contradicted his statements and the version of the prosecution, according to which he and R. M. had attempted to strangle M. That report did not find any marks of strangulation but found multiple injuries, which confirmed that M. had been hit repeatedly. The date of the murder had not been established: the residual quantity of the soporific in M.'s blood was small, confirming that she had taken it a long time before her death. In addition, the expert declared that she had died several days before the report was drawn up (on 5 June 1997), which excluded the date of 19 May 1997 as the date of the murder. Another expert submitted in 1998 that M. had died a week before the report of 5 June 1997, which also challenged the prosecution's version that M. had been murdered on 19 May 1997. The applicant drew the court's attention to his refusal to sign the confessions, which cast doubt on their genuine character. He invoked Articles 3, 5 and 6 of the Convention. 33. On 16 April 2002 the Supreme Court of Justice upheld the judgment of 21 September 2001. The court found that the guilt of the accused had been fully proved. It referred to the prosecution's version of events, according to which the applicant and R. M. had attempted to strangle M. It also referred to the confession made by the applicant on 4 June 1997 in the presence of a lawyer, according to which he and R. M. had taken M. to a well and hit her repeatedly but because she had not died, they had thrown her into the well, where she drowned. The forensic report confirmed the manner of M.'s killing and the injuries on her body corresponded to the applicant's statements. In addition, witnesses confirmed the accused's intentions to sell M.'s apartment and the relevant documents were found in the apartment in which all the accused lived. 34. The court found that there was no evidence of ill-treatment, the applicant having made his confessions in the presence of his lawyer and a number of other persons. 35. The relevant provisions of the Code of Criminal Procedure (in force at the time of the events) read as follows: “Article 55 ... Evidence obtained in violation of the present Code or not properly examined during the court hearing cannot constitute the basis of a court conviction or of other procedural documents. Article 62 ... The initial interview of an accused in custody shall be made only in the presence of a defence counsel, chosen or appointed ex-officio. Article 115 The minutes of an investigation procedure shall be filed during that procedure or immediately thereafter. ... After the end of the interview the audio or video recording shall be reproduced in full for the interviewee. ... The audio or video recording shall end with a declaration by the interviewee confirming the correctness of the recording. Article 124 If the accused ... refuses to sign the minutes of the investigation procedure, a note on that shall be made in the minutes, signed by the author of the minutes. Anyone who refuses to sign the minutes shall be given the possibility to explain the reasons for the refusal, which shall be noted in the minutes”.
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train
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001-88531
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ENG
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SVK
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CHAMBER
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CASE OF LEXA v. SLOVAKIA
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Violation of Art. 5-1;Non-pecuniary damage - finding of violation sufficient
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David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza
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7. The applicant was born in 1961 and lives in Bratislava. 8. Between 1995 and 1998 the applicant was the Director of the Slovak Information Service (Slovenská informačná služba), which is the Slovakian intelligence service. 9. On 31 August 1995 Mr M. Kováč, the son of the then President of the Slovak Republic, was forcibly taken from Slovakia to an Austrian village in the vicinity of the Slovakian border. Following a phone call the Austrian police found him intoxicated in a car. He was detained as the Munich District Court (Amtsgericht) had issued an arrest warrant against him. 10. On 20 February 1996 the Vienna Court of Appeal (Oberlandesgericht) refused to extradite Mr Kováč to Germany for the purpose of his prosecution there. The Vienna Court of Appeal held, inter alia, that witness statements by a former member of the Slovak Information Service and by the President of the Slovak Republic supported Mr Kováč’s allegation that members of the Slovakian secret service had brought him to Austria against his will in the context of political controversies in Slovakia. 11. The Slovakian police started an investigation into the incident and expressed the view that several offences had been committed in that context. 12. On 3 March 1998 Mr V. Mečiar, the Prime Minister, who at the time, under Article 105 § 1 of the Constitution, exercised several powers entrusted to the President of the Slovak Republic, delivered a decision on amnesty (rozhodnutie o amnestii), the relevant parts of which read: “The Prime Minister of the Slovak Republic, in the exercise of his powers under Article 105 § 1 and Article 102(i) of the Constitution of the Slovak Republic, on the occasion of the fifth anniversary of the establishment of the Slovak Republic, gives the following decision on amnesty as a contribution to reaching civic reconciliation and in the interest of eliminating possible sources of tension in society: ... I order that criminal proceedings should not be started and, if they have already been started, should be discontinued in respect of criminal offences committed in the context of the notification of the abduction of Michal Kováč junior abroad.” The decision was published in the Collection of Laws on 3 March 1998. 13. On 7 July 1998 the following decision on amnesty given on the same day by Mr V. Mečiar in his capacity as Acting President of the Slovak Republic was published in the Collection of Laws: “The Prime Minister of the Slovak Republic, in the exercise of his powers under Article 105 § 1 and Article 102(i) of the Constitution of the Slovak Republic, in the interest of eliminating disputes as regards the interpretation of the decision on amnesty adopted on 3 March 1998 ..., declares the following decision on amnesty: ... I order that criminal proceedings should not be started and, if they have already been started, should be discontinued concerning the suspicion of criminal offences allegedly committed in the context of the reported abduction of Ing. Michal Kováč ... abroad, which allegedly occurred on 31 August 1995.” 14. On 18 September 1998 the police investigator decided not to pursue the case concerning the above offences which, as the decision stated, had been committed by unknown perpetrators. Reference was made to the decision on presidential amnesty of 7 July 1998 and to Article 11 § 1(a) and Article 159 § 2 of the Code of Criminal Procedure. 15. In September 1998 the applicant was elected as a member of the National Council of the Slovak Republic (the Parliament) for a four-year term. 16. On 8 December 1998 the newly appointed Prime Minister, Mr M. Dzurinda, in his capacity as Acting President of Slovakia, delivered a new decision on amnesty in the above case. The decision was published in the Collection of Laws on the same day and it reads: “The Prime Minister of the Slovak Republic, in the exercise of his powers under Article 105 § 1 and Article 102(i) of the Constitution of the Slovak Republic, in the interest of eliminating disputes as to the conformity with the Constitution of the decisions on amnesty of 3 March 1998 ... and 7 July 1998 ..., declares the following decision on amnesty: Article ... VI of the decision on amnesty of 3 March 1998 ... and Article ... II of the decision on amnesty of 7 July 1998 ... are revoked.” 17. In February 1999 the daily newspaper Sme published declassified parts of a report on the activities of the Slovak Information Service submitted by its newly appointed Director. The report stated, inter alia, that the Slovak Information Service had taken extensive measures with a view to concealing its involvement in the abduction of Mr Kováč and in order to hamper an appropriate investigation into the circumstances surrounding that incident. 18. After the relevant parts of the above decisions on the presidential amnesty of 3 March 1998 and of 7 July 1998 had been revoked, a police investigator, on 26 February 1999, informed the National Council of the Slovak Republic that the applicant was suspected of having committed several offences in the context of the abduction of Mr Kováč. As the applicant enjoyed immunity as a member of Parliament, the investigator requested that the National Council give its consent to his prosecution. In a decision of 9 April 1999 the National Council granted the investigator’s request. 19. On 9 April 1999 the police investigator started criminal proceedings against the applicant. The applicant was accused of several offences on the ground that he had been involved, in his capacity as Director of the Slovak Information Service, in the abduction of Mr Kováč in 1995. 20. On 15 April 1999 the National Council gave its consent to the applicant’s detention on remand. On the same day the Bratislava 1 District Court (Okresný súd) detained the applicant on remand with reference to Article 67 § 1(b) of the Code of Criminal Procedure. The decision stated that the applicant might influence the witnesses or otherwise hamper the investigation. 21. The applicant lodged a complaint. He argued, inter alia, that the Prime Minister’s above-mentioned decision of 8 December 1998 was contrary to the Constitution. The Bratislava Regional Court (Krajský súd) dismissed the complaint on 17 May 1999. The decision stated that the applicant’s case fell within the jurisdiction of the Constitutional Court. The Regional Court further held that the applicant had been remanded in custody in accordance with the relevant law. 22. On 27 May and 15 June 1999 the applicant filed an application for release. On 15 June 1999 the Bratislava 1 District Court dismissed it. The decision stated that the applicant had attempted to contact other members of the Slovak Information Service and that he might influence witnesses in the event of his release. 23. On 17 June and 12 July 1999 the applicant lodged a complaint against that decision. On the latter date he argued, with reference to the Constitutional Court’s decision no. I. ÚS 30/99 of 28 June 1999 (see “Proceedings before the Constitutional Court” below), that the decision to quash the relevant part of the presidential amnesty had been contrary to the Constitution. The applicant further argued that no relevant reason existed for his detention. 24. On 19 July 1999 the Bratislava Regional Court ordered the applicant’s release. The Regional Court found that most of the relevant evidence had been taken and that the assumption that the applicant could influence witnesses or his co-accused was no longer justified. The applicant was released on that day. 25. The Minister of Justice lodged a complaint in the interests of the law against that decision. On 10 September 1999 the Supreme Court (Najvyšší súd) dismissed the complaint. In the Supreme Court’s view, the Regional Court had proceeded in accordance with the relevant provisions of the Code of Criminal Procedure. The Supreme Court’s decision further stated that the case was at a preliminary stage and that it was therefore for the prosecuting authorities dealing with it to decide what conclusions should be drawn from the Constitutional Court’s decision of 28 June 1999, according to which the Constitution did not allow the quashing of an earlier amnesty. 26. On 27 November 2000 the applicant and twelve other persons were indicted for several offences before the Bratislava III District Court. 27. On 29 June 2001 the District Court discontinued the criminal proceedings against the applicant and the other accused with reference to Article 188 § 1(c), Article 172 § 1(d) and Article 11 § 1(f) of the Code of Criminal Procedure. The District Court addressed as a preliminary issue the validity of the above decisions on amnesty. Its decision stated that the Prime Minister’s decision of 8 December 1998 to revoke the relevant provisions of his predecessor’s decision to grant an amnesty in relation to the offences imputed to the applicant and his co-accused was null and void and that it had no basis in the Code of Criminal Procedure. The decision on amnesty issued on 3 March 1998 was final, irrevocable and not subject to review. Both the criminal character of the action in issue and any criminal liability in that respect had been thereby removed and there was no provision in Slovakian law by which that position could be changed. 28. On 5 June 2002 the Bratislava Regional Court dismissed a complaint by the public prosecutor against the District Court’s decision. It also dismissed a complaint by the applicant and his co-accused concerning the relevant legal provisions on which the decision to discontinue the proceedings had been based. 29. With reference to Article 11 § 1(a) of the Code of Criminal Procedure, the Regional Court held that the prosecuting authorities were obliged, regardless of their opinion, to respect the amnesty granted by the Prime Minister in the exercise of certain powers vested in the President. The granting of amnesty was the manifestation of the individual will of a person entitled to take such an action under the relevant provisions of the Constitution. In the Regional Court’s view, there was no scope for subsequently altering such will. 30. The Prosecutor General lodged a complaint in the interests of the law against the Regional Court’s decision. 31. The complaint was dismissed by the Supreme Court on 20 December 2002. The decision stated that the amnesty of 3 March 1998 relating to the offences imputed to the applicant and his co-accused prevented the criminal proceedings against them from being pursued. The Supreme Court shared the lower courts’ view that the investigator’s decision of 18 September 1998 not to pursue the case was final and that the Code of Criminal Procedure contained no provision permitting the proceedings concerning the offences in question to be resumed after the matter had become res judicata. 32. The Supreme Court expressed the view that the Constitutional Court’s decision no. I. ÚS 30/99 of 28 June 1999 had confirmed the position in the case on the basis of legal theory and existing practice. As a general rule, a decision on amnesty published in accordance with the relevant requirements could not be quashed. While it was true that the Constitutional Court’s finding did not directly affect the contested decision on amnesty of 8 December 1998, the interpretation by the Constitutional Court of the relevant issue was decisive when determining whether a particular authority or person had exceeded their powers. The decisions of the lower criminal courts to discontinue the criminal proceedings had therefore been in conformity with Article 1 of the Constitution, which defined the Slovak Republic as a State based on the rule of law. 33. The Supreme Court shared the interpretation by the Constitutional Court (decision no. I. ÚS 48/99) of the terms of the amnesty decisions of 3 March and 7 July 1998. It admitted that the rather unusual phrasing of those decisions had raised difficulties as to their interpretation. Ordinary courts were obliged to observe the principle in dubio pro reo when interpreting and implementing a decision on amnesty. The decisions on amnesty of 3 March and 7 July 1998 had been issued in accordance with the legal order of Slovakia. That was not the case, however, as regards the subsequent decision to revoke the relevant parts of those decisions. The courts were obliged to abide by the law in force. 34. On 17 May 1999 forty-six members of parliament filed a petition for interpretation of Article 102(i) of the Constitution. They challenged the decisions on amnesty of 3 March and 7 July 1998 as being an abuse of power and contrary to the principles of a State based on the rule of law. The plaintiffs sought a finding that in the exercise of all his or her powers the President of Slovakia was limited by the solemn pledge to act in the interests of the citizens and to respect and protect the Constitution and other laws. 35. On 17 June 1999 the Constitutional Court (First Chamber) dismissed the petition as falling short of the formal requirements. Since the decisions in issue in no way affected the powers of Parliament and the rights of its members, there existed no legally relevant dispute over the interpretation of Article 102(i) of the Constitution calling for interpretation of that provision. 36. On 19 February 1999 thirty-seven members of parliament requested the Constitutional Court to give an interpretation of Article 102(i) of the Constitution concerning the President’s right to grant an amnesty. They argued that the quashing of a presidential decision on amnesty had no legal basis. The alleged reason for the decision of 8 December 1998 had been the elimination of disputes concerning the conformity with the Constitution of the decisions of 3 March 1998 and 7 July 1998. However, only the Constitutional Court was entitled to determine such disputes. 37. In his submission to the Constitutional Court the Prime Minister, M. Dzurinda, argued that the point in issue was not governed by the Constitution. It followed from the principles of a State based on the rule of law, as laid down in Article 1 of the Constitution, that decisions which were not subject to any review should be permissible in exceptional cases only. It was generally known that the Slovak Information Service and its representatives were suspected of being involved in the offences covered by the amnesty. It was therefore in the general interest to have the matter elucidated. His predecessor’s decision to grant the amnesty in issue had been an abuse of power and contrary to the interests of the citizens. Observance of the principles of a State based on the rule of law required that the situation be remedied. The President or the Acting President was allowed to use the rights vested in him or her by the Constitution only within the scope of the constitutional principles in force in Slovakia. Reference was made to Declaration 47/133 adopted by the General Assembly of the United Nations on 18 December 1992. The Prime Minister argued that a decision on amnesty could be amended or quashed exceptionally where the contents of such a decision were contrary to the Constitution and the principles on which it was based. 38. On 28 June 1999 the First Chamber of the Constitutional Court adopted, under Article 128 § 1 of the Constitution, decision no. I. ÚS 30/99, the operative part of which reads: “... interpretation of Article 102 § 1(i) of the Constitution of the Slovak Republic: The right of the President of the Slovak Republic under Article 102 § 1(i) of the Constitution of the Slovak Republic consists in granting amnesty in any of the forms set out in that Article. However, this right does not authorise the President of the Slovak Republic to amend, in any way whatsoever, a decision on amnesty which has been published in the Collection of Laws of the Slovak Republic.” 39. Decision no. I. ÚS 30/99 was published in the Collection of Laws on 24 July 1999. In it the Constitutional Court (First Chamber) had recourse to an extensive linguistic, logical, historical and systematic interpretation of the provision in issue. It stated that the Code of Criminal Procedure did not envisage the possibility of resuming criminal proceedings following a decision to quash an amnesty. Reference was also made to Article 17 § 2 of the Constitution and to Article 4 § 1 of Protocol No. 7 to the Convention. As to UN Declaration 47/133, it related to the granting of amnesty and did not imply that an amnesty which had been granted should be revoked. 40. The prerogative of granting an amnesty and the obligation to comply with it confirmed the separation of powers in a State founded on the rule of law, based on the principle of legal certainty and the necessity to protect acquired rights. An amnesty (individual pardon) did not belong to the category of fundamental rights and freedoms of citizens and there existed no legal entitlement to have it granted. The President was therefore under no obligation to grant an amnesty. By making use of the right to grant amnesty, the President prevented the judicial branch of power from exerting an effect on citizens in certain cases. As a representative of the executive branch of power, the President took over the responsibility for such a decision. 41. Admittedly, the alleged offences covered by the amnesty in issue were of a serious nature. However, no particular offence was excluded from the President’s right to grant amnesty under Slovakian law. An amnesty was an individual act in respect of which no remedy was available. No retroactive effect of the decision on amnesty of 8 December 1998 could therefore be envisaged. 42. In the decision of 28 June 1999 the Constitutional Court concluded that Article 102 § 1(i) of the Constitution could not serve as a basis for any decision by which the President of the Slovak Republic adversely affected, from the point of view of criminal law, the position which a person had acquired as a result of an amnesty. 43. In a petition of 22 April 1999 the applicant complained to the Constitutional Court that his rights, including those under Article 17 § 2 of the Constitution, had been violated in that the criminal proceedings against him had been pursued despite the decisions on amnesty given on 3 March 1998 and 7 July 1998. 44. The Second Chamber of the Constitutional Court rejected the petition on 15 July 1999 (decision no. II. ÚS 69/99). The decision stated, inter alia, that the decisions on amnesty of 3 March 1998 and 7 July 1998 were phrased in such a way that they did not rule out the applicant’s prosecution for the offences in issue and his detention on remand, regardless of the decision of 8 December 1998. 45. Furthermore, the decision on the interpretation of the relevant provisions of the Constitution set out in decision no. I. ÚS 30/99 of 28 June 1999 was of an abstract nature and had no legal effect in respect of any actions, omissions or decisions of the State authorities which had given rise to the point at issue. Decision no. I. ÚS 30/99 of 28 June 1999 could not be effective prior to its adoption and publication in the Collection of Laws. In any event, it did not affect the decision on amnesty of 8 December 1998. The above conclusions were later published in the Collection of Judgments and Decisions of the Constitutional Court. 46. On 24 April 1999 the applicant complained that the authorities which had taken decisions leading to his detention (Parliament, police investigators, the Regional Prosecutor in Bratislava and the Bratislava 1 District Court) had infringed his rights under Article 17 of the Constitution. 47. The Constitutional Court (Second Chamber) declared the submission inadmissible on 15 July 1999. It held that the proceedings in issue were still pending. The above authorities had acted in accordance with the relevant law and there was no indication that the applicant’s rights under Article 17 of the Constitution had been violated. 48. On 22 June 1999 the applicant lodged another petition with the Constitutional Court. He alleged a violation of Article 17 § 2 of the Constitution in that he had been prosecuted for offences which were covered by the amnesty of 3 March and 7 July 1998. 49. On 18 August 1999 the Second Chamber of the Constitutional Court dismissed the petition as being manifestly ill-founded. The decision stated, inter alia, that decision no. I. ÚS 30/99 of 28 June 1999 concerned merely the interpretation of the relevant provision of the Constitution. It did not, as such, retroactively affect the validity of the decision on amnesty of 8 December 1998 as the decision on the interpretation of the relevant provisions of the Constitution had produced effects only following its publication in the Collection of Laws on 24 July 1999. Finally, the decisions on amnesty of 3 March and 7 July 1998 respectively concerned offences relating to the “notification” of the abduction of Mr Kováč and his “reported abduction”, but not any offences committed in the context of his abduction as such. The prosecution of the applicant for the last-mentioned offences was therefore permissible in any event. 50. On 22 July 1999 the First Chamber of the Constitutional Court declared partly admissible a complaint by one of the applicant’s co-accused (case no. I. ÚS 48/99). 51. The decision addressed, inter alia, the question whether the Government had authorised the Prime Minister, as required by Article 105 § 1 of the Constitution, to give a decision on amnesty on 8 December 1998. The Office of the Government had submitted only a decision of 3 March 1998 authorising Mr V. Mečiar to exercise certain presidential powers including those under Article 102(i) of the Constitution. No separate decision to similar effect had been submitted indicating that the new Government set up following the parliamentary election held in September 1998 had authorised its Prime Minister, Mr M. Dzurinda, to exercise the presidential power in issue. The Constitutional Court concluded that the decision on amnesty of 8 December 1998 had been given contrary to Article 2 § 2 of the Constitution and was therefore not a legal act (non negotium). 52. On 12 October 1999 the Constitutional Court allowed both Mr M. Dzurinda, the Prime Minister, and the applicant to intervene as third parties in the proceedings. The former alleged that he had been duly authorised to use the presidential power under Article 102(i) of the Constitution. The Constitutional Court held that it had determined that issue in its above-mentioned decision of 22 July 1999. 53. On 20 December 1999 the First Chamber of the Constitutional Court found a violation of the petitioner’s rights under Article 17 § 2 of the Constitution in that the investigator had brought criminal proceedings against him, on 1 February 1999, notwithstanding that the offences of which he had been accused were covered by the amnesty of 3 March and 7 July 1998. The Constitutional Court quashed the investigator’s decision. As a result, the criminal proceedings against the petitioner were dropped. 54. The investigator’s decision of 18 September 1998 to discontinue the criminal proceedings was final and could not be changed under Slovakian law. 55. The Constitutional Court also addressed the question as to the date from which its above-mentioned decision no. I. ÚS 30/99 was effective. That decision concerned the interpretation of Article 102 § 1(i) of the Constitution and, as such, was of a declaratory nature. Where relevant, such a decision was effective ex tunc. The fact that a public authority, prior to the finding of the Constitutional Court, had considered its actions to be in conformity with the Constitution could not serve as a justification for such actions once the Constitutional Court had found that this was not the case. 56. The Constitutional Court (First Chamber) dismissed the argument that its decision no. I. ÚS 30/99 had been effective only from the moment of its publication in the Collection of Laws on 24 July 1999. In particular, neither the Constitutional Court Act 1993 nor the Collection of Laws Act 1993 provided for compulsory publication in the Collection of Laws of a decision under Article 128 § 1 of the Constitution. The binding effect of similar decisions could not, therefore, depend on whether or not they were published in the Collection of Laws. 57. The judgment no. I. ÚS 48/99 of 20 December 1999 was later published in the Collection of Judgments and Decisions of the Constitutional Court. The conclusion was highlighted, as relevant case-law, that prosecution of a person for actions whose criminal character had ceased to exist was contrary to Article 17 § 2 of the Constitution. 58. Judge J. Kľučka disagreed with the above-mentioned decisions by the First Chamber of the Constitutional Court composed of three judges. At that time the relevant statutory provisions did not allow separate opinions to be published together with the judgment. His dissenting opinion was later published in the journal Justičná revue (no. 2/2000). 59. The view was expressed in the opinion that judgment no. I. ÚS 48/99 departed from the previous (and established) practice concerning the requirement to exhaust the other available remedies prior to lodging a complaint with the Constitutional Court. Such a decision had caused legal uncertainty and could lead to confusion as to which authorities were primarily charged with the protection of individuals’ fundamental rights and freedoms. Such departure from the previous practice of the Constitutional Court had no objective justification. 60. After delivery of the Constitutional Court’s decision no. I. ÚS 30/99, the Press Agency of the Slovak Republic, on 9 July 1999, issued a statement expressing the standpoint of the Prosecutor General’s Office. The statement indicated that the interpretation by the Constitutional Court of Article 102(i) of the Constitution was to apply for the future and had no effect on the binding character of decisions on amnesty which had been previously published in the Collection of Laws. 61. There had been no reason for the proceedings against the applicant to be discontinued since a grammatical and logical interpretation of the relevant provisions of the amnesty decisions of 3 March and 7 July 1998 led to the conclusion that those decisions did not apply to the criminal offence of forcible abduction of Mr Kováč junior to a foreign country, committed on 31 August 1995, as such or to other criminal offences which the criminal proceedings concerned. 62. Finally, reference was made to several sets of proceedings pending before the Constitutional Court, whose outcome was decisive for the further examination of the charges against the applicant and his co-accused. 63. After the applicant’s release a group of members of parliament attempted, on several occasions, to revoke the above-mentioned decisions on amnesty by Mr Mečiar by tabling a draft constitutional law to that effect. The attempts failed as the proposal was not supported by the required majority of ninety members of parliament. 64. Until 26 January 1999 Article 102(i) read as follows: “The President [of the Slovak Republic] grants amnesty, pardons or mitigates sentences imposed by criminal courts, orders that criminal proceedings should either not be started or not be pursued and expunges sentences.” 65. With effect from 27 January 1999 the above provision was replaced by Article 102 §§ 1(i) and 2 which read: “1. The President [of the Slovak Republic] ... (i) grants amnesty, pardons or mitigates sentences imposed by criminal courts, orders that criminal proceedings should either not be started or not be pursued and expunges sentences. 2. A presidential decision on ... amnesty is valid subject to its signature by the Prime Minister or a minister empowered to do so. In such cases the Government bears the responsibility for the President’s decision.” 66. With effect from 1 July 2001 Article 102 § 1(j) entitles the President of Slovakia to pardon and mitigate sentences imposed by courts in criminal proceedings and to expunge convictions by means of an individual pardon or an amnesty. Paragraph 2 of Article 102 provides that a decision on amnesty is valid subject to its signature by the Prime Minister or a minister whom the latter has duly authorised. In such cases the Government bears the responsibility for the President’s decision. 67. In a commentary on the Constitution written by a group of authors headed by the then President of the Constitutional Court and published in 1997 the view was expressed that a presidential decision on an amnesty could not be quashed (Milan Čič a kolektív: Komentár k Ústave Slovenskej republiky, Matica slovenská 1997, p. 376). 68. Article 2 § 2 obliges State authorities to act exclusively on the basis of the Constitution and within its scope. The mode and extent of their action is to be governed by law. 69. Under Article 17 § 2, any person can be prosecuted or deprived of his or her liberty only for reasons and by means provided for by law. Under paragraph 5 of Article 17, a person can be remanded in custody only for reasons and during a period of time provided for by law and in accordance with a decision of a court. 70. Article 105 § 1 provides that the Government, which may authorise the Prime Minister to act on its behalf in that respect, is entitled to exercise a certain number of presidential powers when the office of the President is vacant or when the President is prevented from carrying out his or her duties. Until 30 June 2001 those powers included the prerogative of mercy within the meaning of Article 102 § 1(i) of the Constitution. 71. Article 128 § 1, as in force at the relevant time, provided: “The Constitutional Court shall interpret constitutional laws where there is a dispute about the point in issue. A law shall provide for the conditions.” As from 1 July 2001 Article 128 provides: “The Constitutional Court shall give an interpretation of the Constitution or a constitutional law where a dispute exists over the matter. The Constitutional Court’s decision on interpretation of the Constitution or a constitutional law shall be made public in the same manner as laws. The interpretation [given by the Constitutional Court] is binding for everybody from the date of its publication.” 72. In judgment no. I. ÚS 60/97 of 22 January 1998 the Constitutional Court specified the legal effects of its decisions on the interpretation of the Constitution. It characterised such decisions as a general expression, by an independent judicial body in charge of protection of the Constitution, of the legal view on the implementation of a provision over which there was a dispute. According to the judgment, such decisions in themselves cannot, however, establish, modify or remove the rights either of the parties to the proceedings in the context of which the relevant dispute arose or of any third persons. 73. The following relevant provisions of the Constitutional Court Act were in force at the material time. 74. Pursuant to section 6, where a chamber of the Constitutional Court, in the context of its decision-making activity, reaches a different legal opinion from that expressed by another chamber of the Constitutional Court under Article 128 § 1 of the Constitution, the chamber concerned has to submit the matter for examination at a plenary meeting of the Constitutional Court. The conclusion reached at the plenary meeting is binding on the chamber concerned. 75. Section 33(1) provides that the Constitutional Court delivers a judgment (nález) on the merits of the case unless the Constitutional Court Act provides otherwise. It determines other matters by means of a decision (uznesenie). 76. Pursuant to section 33(4), as in force until 19 March 2002, where the view of the Constitutional Court expressed in a judgment on the merits of a case or in a decision on the interpretation of constitutional laws under Article 128 § 1 of the Constitution was of general importance, the Constitutional Court could decide to have it published in the Collection of Laws. Since 20 March 2002 publication in the Collection of Law of such decisions has been mandatory (section 33(2)). 77. Pursuant to section 48, requests for interpretation of constitutional laws are examined in camera by one of the chambers of the Constitutional Court. The chamber delivers decisions in such cases. 78. The following provisions of the Code of Criminal Procedure were in force at the relevant time. 79. Article 11 was entitled “Inadmissibility of Criminal Prosecution”. Pursuant to paragraph 1(a), as in force until 1 August 2001, criminal proceedings could not be brought or, if they had already been instituted, were to be discontinued when an order to that effect was given by the President in the exercise of his right to grant a pardon or an amnesty. 80. Under Article 11 § 1(f), criminal proceedings cannot be brought or, if they have already been instituted, are to be discontinued when, inter alia, earlier criminal proceedings against the same person concerning the same matter were discontinued by means of a final decision, with the exception of cases where such final decision was quashed in subsequent proceedings provided for by law. 81. Pursuant to Article 67 § 1(b), an accused can only be remanded in custody when there are specific grounds to believe that he or she will influence witnesses or the co-accused or otherwise hamper the investigation into the relevant facts of the case. 82. Article 68 in conjunction with Article 160 provides that only a person accused of an offence in the context of criminal prosecution can be remanded in custody. 83. Pursuant to Article 159 § 2, a public prosecutor, an investigator or a police authority at a stage prior to bringing criminal proceedings is obliged to set a case aside by means of a decision where criminal prosecution is inadmissible within the meaning of Article 11 § 1 of the Code of Criminal Procedure. 84. Article 188 § 1(c) in conjunction with Article 172 § 1(d) provides that a court has to discontinue criminal proceedings, after a preliminary examination of the indictment, where prosecution is not permissible for reasons set out in Article 11 § 1 of the Code of Criminal Procedure. 85. A group of eight lawyers specialising mostly in constitutional law made public their opinion disagreeing with the Constitutional Court’s judgment no. I. ÚS 48/99 and its decision no. I. ÚS 30/99. They argued that a decision of the Constitutional Court on the interpretation of a provision of the Constitution could not have retroactive effect. Such decisions produced effects only after their promulgation. 86. The authors of the article also challenged the decision on amnesty of 3 March 1998 as they considered it to be in breach of the President’s duty to act in the interests of the citizens and to abide by the Constitution. The lawyers’ other objections related to the admission, by the First Chamber of the Constitutional Court, of a petition by a group of thirty-seven members of parliament in case no. I. ÚS 30/99 and of a petition by one of the applicant’s co-accused in case no. I. ÚS 48/99. Criticism was also expressed that in the latter case legal conclusions had been drawn in respect of the applicant notwithstanding the fact that he had not been a party to those proceedings. 87. In its Global Report on the State of Society in 2000 the Institute for Public Affairs, an independent non-governmental organisation, strongly criticised the decisions of the First Chamber of the Constitutional Court nos. I. ÚS 48/99 and I. ÚS 30/99 for reasons similar to those expressed in the above-mentioned article published by a group of lawyers. 88. Amnesty and pardon are the two principal forms employed within the general concept of mercy in the Contracting Parties to the Convention. 89. As to the distinctions between them, firstly, amnesty is usually referred to as a measure which is impersonal and applies to all persons or to a class of persons, while a pardon concerns a specific individual or a group of individuals. Secondly, while a pardon typically serves to remit a sentence, an amnesty may be granted before criminal proceedings have commenced or at any stage thereafter. Thirdly, while amnesty is usually considered to fall within the realm of the legislature, the power to grant a pardon is seen as one of the prerogatives of the head of State. 90. In certain Contracting Parties the above distinctions between the two concepts are not always present or are not clearly indicated, as a result of which, in legal theory, the clemency institutions are considered to have “hybrid forms” in relation to the above two general notions (for example, “generic” or “collective” pardons in Portugal and Romania or “grâce amnistiante” and “admission par décret au bénéfice de l’amnistie” in France). There is no significant functional difference between the different concepts employed as their common purpose has been to remove the effects or consequences of a completed or pending criminal conviction. 91. The powers of heads of State in the decision-making process in matters relating to measures of clemency and possible review of such measures depends on the constitutional model adopted by the country concerned. 92. In the Contracting Parties to the Convention, there is a general trend towards excluding the executive’s decisions on pardon from judicial control on account of the discretionary and sui generis nature of such decisions. The Constitutions and other legal norms in the Contracting States do not provide for the possibility of revocation of pardons granted unconditionally. 93. In legal theory a variety of views have been expressed. Several authors have argued that pardons are irrevocable on the basis of the classical theory of administrative law, maintaining that an individual administrative decision addressed to a particular person cannot be subject to revocation. Other authors have argued that, even though there is no right to a pardon, once it has been granted, such a measure creates rights for the pardoned individual and the sphere of freedom granted by the executive power becomes inalienable. Views have also been expressed that pardons can be revoked on the limited grounds of error, fraud on the part of the pardoned person, or the existence of concomitant or previous circumstances which were not known by the authority granting the pardon. 94. Pardons granted by the executive are generally conceived as atypical discretionary acts, granted in the framework of relations between the branches of power or in the sphere of execution of penalties. As such, they cannot be construed as normal administrative measures subject to ordinary judicial review. In spite of the fact that the power to pardon is in principle delimited by the constitutional norms or principles of the rule of law (such as the necessity of sanctions, legal certainty, protection of public order, separation of powers and equality), the possibilities for the judiciary to review or overturn a pardon seem to be very limited in the majority of the Contracting States. The discretionary character of these measures does not, in principle, allow for their revocation. 95. With regard to amnesties, their retroactive revocation is generally not allowed, as they are adopted by the legislature and their revocation would be contrary to the principle of legal certainty and to the principle of non-retroactivity of criminal law. 96. On 18 December 1992 the General Assembly of the United Nations adopted Resolution 47/133 proclaiming the Declaration on the Protection of All Persons from Enforced Disappearance as a body of principles for the UN member States. Article 18 of the Declaration reads: “1. Persons who have or are alleged to have committed offences referred to in article 4, paragraph 1 above [i.e. all acts of enforced disappearance], shall not benefit from any special amnesty law or similar measures that might have the effect of exempting them from any criminal proceedings or sanction. 2. In the exercise of the right of pardon, the extreme seriousness of acts of enforced disappearance shall be taken into account.” 97. In the Barrios Altos v. Peru judgment (Series C No. 75 [2001], IACHR 5, 14 March 2001, § 41) the Inter-American Court of Human Rights held: “... all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law.” 98. In Bulacio v. Argentina (18 September 2003, § 116) the Inter-American Court of Human Rights held: “...any other domestic legal obstacle that attempts to impede the investigation and punishment of those responsible for human rights violations are inadmissible”. 99. The Special Court of Sierra Leone has held that the amnesty granted under Article IX of the Lomé Peace Agreement of 7 July 1999 does not bar the prosecution of an accused for international crimes within the jurisdiction of that special court (Decision on Challenge to Jurisdiction: cases No. SCSL-2004-15-PT, and No. SCSL-2004-16-PT, 13 March 2004).
| 1
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train
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001-57501
|
ENG
|
BEL
|
CHAMBER
| 1,987
|
CASE OF H. v. BELGIUM
| 2
|
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
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C. Russo;J.A. Carrillo Salcedo;N. Valticos
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9. The applicant, who is a Belgian citizen born in 1929, has a doctorate in law and lives in Antwerp. He was struck off the Bar roll of that city and has twice applied unsuccessfully to be reinstated. 10. In 1957, after completing the prescribed period as a pupil avocat in Antwerp, H was entered on the roll and took chambers. 11. In May 1963, the Council of the Ordre des avocats of Antwerp commenced disciplinary action against him for having deliberately given false information to clients. On 10 June 1963, it struck him off the roll, having satisfied itself that he had wrongly persuaded a client that he (the client) risked arrest if he did not immediately pay a sum of 20,000 BF. The Council had previously dismissed the other charges against H. On appeal by H, the Brussels Court of Appeal, in a judgment on 31 December 1963, affirmed the decision to strike him off; and on 22 June 1964, the Court of Cassation dismissed H’s appeal on points of law. 12. H was subsequently prosecuted for fraud and unlawfully holding himself out as an avocat; he was in custody pending trial from 2 July to 2 August 1965 and many of his files were seized. He was acquitted by the Antwerp Criminal Court on 19 January 1968 and made an unsuccessful claim for compensation. 13. In 1970, the applicant set up as a legal and tax adviser, after having worked for some time as a commercial traveller. 14. On 25 February 1977, when he was about to apply to have his name restored to the roll, the police again seized documents at his office. On 29 November 1978, the chambre du conseil of the Antwerp Court of First Instance committed him for trial in the Criminal Court for forgery and fraudulent conversion, but the prosecution ended in an acquittal on 18 October 1979. 15. H has no criminal convictions. 16. By a letter of 3 December 1979, the applicant requested the Council of the Ordre des avocats of Antwerp to restore his name to the roll. This application was based on Article 471 of the Judicial Code (see paragraph 30 below). 17. On 17 December, at a sitting of the Council, the bâtonnier (leader) of the Antwerp Bar appointed a rapporteur. After deliberating on 7 and 28 January 1980, the Council decided to hear the applicant and his counsel. 18. The hearing was held on 18 February. According to H’s counsel, the "exceptional circumstances" justifying his restoration to the roll consisted essentially in the great professional and family difficulties his client had experienced over the previous fifteen years, particularly as he had to confine himself to his occupation as a legal and tax adviser; furthermore his disbarment had not been followed up with any criminal proceedings and the later prosecutions had ended in acquittals. 19. The Council of the Ordre dismissed the application on the same day; although more than ten years had elapsed since H had been struck off, the explanations offered orally by H’s counsel did not disclose any exceptional circumstances such as would justify restoring his name to the roll. 20. On 9 February 1981, the applicant renewed his application. He appended a memorandum criticising the 1963 decision and to which was attached an opinion by a retired procureur général (Principal Crown Prosecutor), B. According to B, the Council of the Ordre should, under Article 29 of the Code of Criminal Procedure, have reported to the Antwerp procureur du Roi (Crown Prosecutor) the matters of which the applicant stood accused; that would have entailed suspending the disciplinary proceedings until the final decision in the criminal trial was known. 21. The Council of the Ordre heard H and his counsel on 21 April 1981. Counsel submitted that the decision to disbar H had been based on the uncorroborated evidence of one of H’s clients, and that from 1963 to 1980 H had run his legal and tax consultancy very satisfactorily. He added that in 1963 the Council of the Ordre had not reported the facts to the procureur du Roi, with the result that no prosecution had been brought and H had not had a chance of securing an acquittal. He also emphasised H’s family difficulties. In addition, he filed a memorandum in which the applicant explained why the retired procureur général B was entitled to give an opinion. 22. The Council of the Ordre dismissed the application at the end of its sitting on 11 May 1981, holding that H had not established that there were exceptional circumstances; in particular, the consequences of disbarment did not constitute such circumstances. In response to the memorandum of 9 February 1981 (see paragraph 20 above), it stated that the relevant procureur général was aware of the facts before the decision was given and had ordered a judicial investigation. The decision was served on the applicant on 16 June 1981. 23. In Belgium the councils of the Ordre des avocats have exclusive jurisdiction to decide on applications for restoration to the roll. 24. For each of the Bars the Council of the Ordre, together with the bâtonnier and the general assembly, is an administrative organ of the profession of avocat. 25. It consists of the bâtonnier and from two to sixteen other members, according to the number of avocats on the Bar roll and the list of pupil avocats; the Antwerp Council has sixteen members in addition to the bâtonnier. The members are directly elected by the general assembly of the Ordre, to which all avocats on the roll are convened (Article 450 of the Judicial Code); the election is held before the end of each judicial year. 26. The Council exercises numerous functions of an administrative, regulatory, adjudicative, advisory and disciplinary nature. In the instant case it is sufficient to mention the following. 27. Under Article 432 of the 1967 Judicial Code, which enshrines the case-law of the Court of Cassation on the subject (judgment of 15 January 1920, Pasicrisie 1920, I, p. 24), the Council draws up the roll of avocats and the list of pupil avocats, and no appeal lies from its decisions in this matter. The principle of the Council’s having responsibility for its roll is justified by the need to restrict access to the profession to persons of unimpeachable integrity. 28. It is also the Council’s duty to "protect the honour of the Ordre" and to "maintain the principles of dignity, probity and scrupulousness on which the profession is founded" (Article 456). 29. As a disciplinary body, it punishes "offences and misconduct" (ibid.). It will hear such cases "on an application by the bâtonnier, either of his own motion or following a complaint or after receipt of a written accusation from the procureur général" (Article 457). The avocat concerned is summoned within two weeks by registered letter and, if he so requests, is granted time to prepare his defence (Article 465). Within eight days of the decision’s being given, it is notified by registered post to the procureur général and the avocat concerned (Article 466). The main penalties which the Council may impose are warning, censure, reprimand, suspension for not more than one year and striking off the roll or the list of pupil avocats (Article 460). The avocat concerned has a right both of objection (opposition) (Article 467) and, like the procureur général, of appeal (appel) (Article 468). At the time the events in this case occurred (see paragraph 11 above), appeal lay to the Court of Appeal (Article 29 of the Imperial Decree of 14 December 1810 regulating the practice of the profession of avocat and the discipline of the Bar). Today, this jurisdiction is exercised by disciplinary appeals boards, consisting of the President of the Court of Appeal, who presides, and four avocats sitting as assessors (Article 473 of the Judicial Code). Decisions of the courts of appeal in such matters could be appealed against on points of law (section 15(1) of the Judicature Act of 4 August 1832). The same now applies to decisions of the disciplinary appeals boards (Article 614 § 1 of the Judicial Code). 30. Restoration to the roll of an avocat who has been struck off it is governed by Article 471 of the Judicial Code: "No avocat who has been disbarred may be entered on a roll of the Ordre or on a list of pupil avocats until ten years have elapsed from the date on which the decision to strike off became final and unless exceptional circumstances warrant it. No such entry shall be permitted without the reasoned consent of the Council of the Ordre to which the avocat belonged or, as the case may be, the leave of the relevant disciplinary appeal authority if the disbarment was ordered by it. No appeal shall lie against a refusal to restore to the roll." This text reproduces with minor variations Article 1 of a resolution adopted on 13 February 1962 by the Council of the Brussels Ordre. That resolution went some way towards removing the finality of disbarment and read as follows: "The Council of the Ordre may ..., on his application, restore to the roll an avocat who has been struck off. This measure, which is of an exceptional nature and lies wholly within the discretion of the Council of the Ordre, regard being had to the higher interests of the Bar and to whether reformation of the person concerned is clearly established, shall be permissible only after ten years have elapsed from the time when the disbarment penalty became final. The Council shall take its decision in accordance with the procedure provided for in Rule 32 of the Rules of Procedure, as in the case of the admission of a pupil avocat. ..." 31. Although Article 471 of the Judicial Code is the last provision in Book III ("The Bar"), Section I ("General provisions"), Chapter IV ("Disciplinary matters"), the Council does not use the disciplinary procedure (Article 465-469) when dealing with an application for restoration to the roll; nor is its decision a disciplinary one (Cass. 18 March 1965, Pasicrisie 1965, I, p. 734). The general law does not make any specific provisions; and the Antwerp Bar did not have any internal rules of procedure at the relevant time. The Council normally takes its decision in the same way and following the same procedure as on an application for admission. 32. According to figures provided by the Government (and which were not disputed), 47 avocats have been struck off in Belgium since the Judicial Code came into force on 10 October 1967. Of the five applications for restoration to the roll made by avocats who have been struck off, three have been successful (Oudenaarde, Charleroi and Courtrai Bars). The Antwerp Bar has had to deal only with H’s applications, which were unsuccessful. None of the decisions in question is available to the public.
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train
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001-95473
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ENG
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DEU
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ADMISSIBILITY
| 2,009
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MATTERNE v. GERMANY
| 4
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Inadmissible
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Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
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The applicant, Mr Hermann Matterne, is a German national who was born in 1967 and lives in Munich. Of the forty-four domestic proceedings instituted by the applicant between 2000 and 2005 and referred to in his application, the applicant has submitted decisions by the Federal Constitutional Court with respect to the following three proceedings. By a judgment of 23 January 2002 the Stuttgart District Court dismissed the applicant’s claim against his former partner regarding repayment of rent and compensation for expenses incurred in connection with the allegedly unlawful cancellation of the applicant’s sublease agreement and his eviction from the jointly occupied apartment located in Stuttgart. On 28 March 2002 the applicant lodged an appeal with the Stuttgart Regional Court. On the occasion of hearings that took place on 12 September 2002 and 3 April 2003 the Regional Court heard the parties and a witness. By a judgment of 28 April 2003 the Stuttgart Regional Court granted the applicant’s claim in part, dismissed the remainder and amended the District Court judgment of 23 January 2002 accordingly. On 25 June 2003 the applicant lodged a constitutional complaint against the judgment of the Regional Court with the Federal Constitutional Court and simultaneously requested to be reinstated in the statutory one-month time-limit for lodging such a complaint. On 11 July 2003 the Registry of the Federal Constitutional Court by its presidential council (Präsidialrat) informed the applicant that there existed doubts as to the admissibility of his complaint since he had neither sufficiently substantiated his request to be reinstated nor the alleged violation of his rights guaranteed under the Constitution. By a letter dated 25 August 2003 the applicant gave further reasons for his complaint and his request for reinstatement. On 10 February 2004 the Federal Constitutional Court, notwithstanding the applicant’s request to be reinstated, declined to consider his constitutional complaint (file No. 2 BvR 1389/03). By a judgment of 10 December 2002 the Munich District Court ordered the applicant to pay outstanding rent for an apartment located in Munich, to vacate the apartment and to bear the costs of the court proceedings. On the applicant’s appeal the Munich Regional Court by a judgment dated 9 July 2003 set aside the judgment of the Munich District Court on the ground that the applicant’s right to be heard had been infringed and remitted the case to this court for fresh consideration. On 15 June and 11 November 2004 the Munich District Court heard the parties and ordered the taking of evidence. On 11 November 2004 the applicant objected to the participation of the acting judge in the proceedings on the ground of possible bias since the same judge had already conducted the proceedings resulting in the judgment of 10 December 2002. By written submissions of 29 December 2004 the applicant lodged a counterclaim against the owner of the apartment regarding, inter alia, repayment of rent. The Munich District Court by a partial judgment (Teilurteil) dated 3 May 2005 again ordered the applicant to vacate the apartment. The applicant appealed on 4 May 2005 and lodged a further application for bias against the acting judge. On 26 October 2005 the Munich Regional Court set aside the District Court decision of 3 May 2005 and ordered the owner of the apartment, in his capacity as underlying plaintiff, to bear the costs of the proceedings. By a decision of 28 October 2005 the Regional Court clarified that the plaintiff had to bear the costs of the appellate proceedings. The applicant appealed against the decision of the Regional Court on the ground that the latter had ordered the plaintiff only to bear the costs of the appellate proceedings but not of the proceedings at first instance. On 16 December 2005 the Munich Regional Court dismissed his complaint. It found that since the partial judgment of the District Court of 3 May 2005 had not contained a decision on the costs of the proceedings at first instance the Regional Court could only decide on the costs of the appellate proceedings. The decision on the costs of the first-instance proceedings was reserved for the final decision (Schlussurteil) of the District Court in the first-instance proceedings. On 9 June 2006 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1273/06). The Federal Constitutional Court held that the complaint was inadmissible on the ground that the impugned decision of the Regional Court had not been rendered to the detriment of the applicant and that according to the information submitted there was nothing to establish that he would have to bear the costs of the proceedings at first instance. On 23 June 2004 the applicant brought a claim against a construction firm before the Munich District Court regarding compensation for water damages caused in his cellar on the occasion of renovation works in a neighbouring building. The District Court heard the parties on 24 August 2004 and by a decision dated 19 October 2004 ordered the taking of evidence and summoned witnesses for a hearing scheduled for 30 November 2004. On 29 October 2004 the District Court rejected the applicant’s request to adjourn the hearing as unsubstantiated. The applicant did not attend the hearing on 30 November 2004 but was represented by counsel. The Court heard witnesses but rejected the applicant’s request to hear two further witnesses as belated in accordance with the related provisions of the German Code of Civil Procedure (Zivilprozessordnung). By a judgment of 23 December 2004 the Munich District Court dismissed the applicant’s claim. On 28 December 2004 the applicant lodged an appeal with the Munich Regional Court alleging that his right to be heard had been infringed on the ground that he could not attend the hearing on 30 November 2004. He also complained that his request to hear further witnesses had been dismissed by the court. He finally asked to be granted legal aid for the appellate proceedings. By a letter dated 25 January 2005 the Munich Regional Court informed the applicant that his appeal was not signed by a lawyer as statutorily required and furthermore that it appeared to be ill-founded. On 15 February 2005 the applicant submitted written observations in reply. On 17 February 2005 the Munich Regional Court rejected the applicant’s request for legal aid since his appeal was devoid of prospects of success. It held that the District Court had correctly assessed the evidence obtained and rightly rejected the applicant’s request to hear further witnesses as belated. By a decision of 6 April 2005, which was served on the applicant on 15 April 2005, the Munich Regional Court dismissed the applicant’s appeal against the judgment of the Munich District Court as inadmissible, as he was not represented by counsel as statutorily required. The applicant lodged a complaint against this decision with the Regional Court on the same day. On 9 May 2005 the applicant lodged a constitutional complaint which he further motivated by written submissions of 10 May 2005. By letter dated 18 May 2005 the Registry of the Federal Constitutional Court by its presidential council (Präsidialrat) informed the applicant that there existed doubts as to the admissibility of his complaint since he had not sufficiently substantiated a violation of his rights guaranteed under the Constitution. The applicant nevertheless pursued his constitutional complaint. On 2 June 2005 the Munich Regional Court dismissed the applicant’s complaint of 15 April 2005 against its decision of 6 April 2005 on the ground that only the Federal Court of Justice (Bundesgerichtshof) would have been competent to deal with it. On 3 February 2006 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint of 9 May 2005 and imposed a fee of 250 euros (EUR) upon the applicant for abuse of process (file no. 2 BvR 33/06). It referred to its established case-law that the introduction of a constitutional complaint constituted abuse of process if one could reasonably assume that the complaint was devoid of any prospects of success. In the instant case the applicant, after receiving the letter of the presidential council of the Federal Constitutional Court dated 18 May 2005, could not have had any doubts that his constitutional complaint was not sufficiently substantiated and thus clearly inadmissible. The applicant had merely used the Federal Constitutional Court as an additional appellate instance without specifying any issues that were relevant under constitutional law in the manner required by the applicable procedural rules. The Federal Constitutional Court pointed out that it could not agree to be hindered in the performance of its tasks by unsubstantiated complaints. By a letter to the Federal Constitutional Court dated 19 February 2006 the applicant contested that his complaint had been abusive and requested that the fee be revoked. Pursuant to Article 34 § 1 of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz) the proceedings before the Federal Constitutional Court shall be free of charge. According to Article 34 § 2 of the said Act, the Federal Constitutional Court may charge a fee of up to EUR 2,600 if the lodging of a constitutional complaint constitutes an abuse of process. In its established case-law the Federal Constitutional Court has consistently held that the lodging of an obviously inadmissible or unfounded complaint is considered to be abusive if one can reasonably expect the complaint to be devoid of any prospect of success. The Federal Constitutional Court held on several occasions that this was the case if an applicant merely used the Federal Constitutional Court as an additional appellate instance without raising issues that were relevant under constitutional law in compliance with the procedural requirements. The Federal Constitutional Court also has repeatedly held in this context that it could not agree to be hindered in the exercise of its functions by complaints that clearly did not have any prospect of success, thereby delaying the protection of the basic rights of other citizens. In a decision of 9 October 2008 (file No. 1 BvR 1356/03) the Federal Constitutional Court held that fees charged in accordance with Article 34 § 2 of the Federal Constitutional Court Act had to be legally qualified as court fees notwithstanding that they also had a punitive character. While Article 34 § 1 established the rule that proceedings before the Federal Constitutional Court were free of charge, its paragraph 2 established the conditions under which an exception to this rule could apply. A fee imposed on this basis could be considered an appropriate consideration for costs triggered by an abusive resort to the Federal Constitutional Court.
| 0
|
train
|
001-91893
|
ENG
|
RUS
|
CHAMBER
| 2,009
|
CASE OF NIKOLENKO v. RUSSIA
| 4
|
Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property;No violation of Article 6 - Right to a fair trial;No violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 13 - Right to an effective remedy
|
Anatoly Kovler;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
|
4. The applicant was born in 1967 and lives in Armavir, a town in Armenia. 5. A warrant officer of the Russian Border Guard Service (“Service”), she serves in a unit stationed in Armenia. 6. In June 2000 the applicant requested an early discharge because of structural changes in her service. Under domestic law, long-serving personnel in need of better housing (the applicant met these conditions) could be discharged against their will only if the command provided them with such housing. When asking for discharge, the applicant specified that she wished to receive the housing. 7. As no housing was provided, in November 2003 the applicant sued the Director of the Service for provision of housing and an early discharge. On behalf of the defendant the trial was attended by X, a major of military justice acting on the basis of a power of attorney. X accepted the applicant’s claim and on 15 March 2004 the Fifth Garrison Military Court ordered the Director to provide the applicant’s family with housing in Moscow and to discharge her. This judgment became enforceable immediately, but was not enforced. 8. In July 2004 the Bailiff’s Service investigated the applicant’s allegation that the delayed enforcement constituted an offence under section 315 of the Criminal Code (ignoring judgments), but found that the Director had no case to answer. 9. On the Director’s request, on 18 January 2005 the Presidium of the North-Caucasian Military Court quashed the judgment on supervisory review and ordered a rehearing. The Presidium justified the quashing with four reasons. First, the judgment had been based solely on the defendant’s acceptance of the claim and had not explored whether the claim as such had been lawful and compatible with third parties’ interests. Second, X had not been duly authorised by the defendant proper, i.e. by the Director; he was authorised by the Service’s local branch only. Third, the acceptance of the claim had not been formally recorded. Fourth, the Garrison Court had misevaluated facts and material law. 10. After the rehearing, on 1 June 2006 the Garrison Court ordered the Director to provide the applicant’s family with housing in Moscow by means of a first-priority queue (в первоочередном порядке). The court dismissed the applicant’s claim for discharge because this matter was within the authority of her unit, not that of the Director. This judgment became binding on 25 October 2006. 11. To enforce the judgment, in November 2006 the logistics department of the Service sent to the applicant’s unit a list of documents necessary for putting her in the queue. In February 2007 the unit provided a part of these documents. In May 2007 the logistics department reminded the applicant that to complete her file she had to provide further documents, among them an extract from the register of tenants, her children’s birth certificates, and proof of entitlement to privileges. In September 2007 the applicant completed the file, and on 2 November 2007 the housing commission of the Service put the applicant’s family in the first-priority housing queue. 12. Under section 23 § 1 of the Federal Law on the Status of Servicemen, servicemen who have served ten years and more and whose housing needs to be improved, cannot be discharged against their will without the provision of such housing. 13. According to the Ruling of the Constitutional Court 322-O of 30 September 2004, after expiry of a serviceman’s contract and in the absence of his written agreement to discharge without provision of housing, he should be considered as serving voluntarily only until the provision of housing.
| 1
|
train
|
001-97210
|
ENG
|
ARM
|
ADMISSIBILITY
| 2,010
|
NERSESYAN v. ARMENIA
| 4
|
Inadmissible
|
Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
|
1. The applicant, Mr Beniamin Nersesyan, is a Canadian national who was born in 1954 and lives in Misissauga, Canada. He was represented before the Court by Ms A. Atoyan, a lawyer practising in Yerevan. The respondent Government were represented by their Agent, Mr G. Kostanyan, Representative of the Republic of Armenia at the European Court of Human Rights. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. Since 1993 the applicant has been living in Canada. 4. On 2 August 2006 he instituted civil proceedings against his brother, seeking to have annulled a number of documents relating to his brother’s acquisition of their deceased father’s estate and to be recognised as one of the heirs. He alleged that his father, prior to his death in September 1998, had made a will which named him and his brother as heirs. The notary, when formalising the inheritance in March 1999 pursuant to the law, had failed to verify this circumstance before issuing his brother and mother with an inheritance certificate. 5. On 18 October 2006 the Kentron and Nork-Marash District Court of Yerevan (Երևանի Կենտրոն և Նորք-Մարաշ համայնքների առաջին ատյանի դատարան) examined and dismissed the applicant’s claim as unsubstantiated. The District Court found that the applicant had been aware of his father’s death and was therefore aware that an inheritance procedure had been opened. In spite of this, he had missed the six month time-limit prescribed by law to claim the inheritance. 6. On an unspecified date the applicant lodged an appeal. 7. On 13 December 2006 the Civil Court of Appeal (ՀՀ քաղաքացիական գործերով վերաքննիչ դատարան) upheld the judgment of the District Court, reaching similar conclusions. 8. On 25 December 2006 the applicant lodged an appeal on points of law with the Court of Cassation (ՀՀ վճռաբեկ դատարան), claiming various substantive violations of the law. Pursuant to Article 231.2 § 1 of the Code of Civil Procedure (“the CCP”), he argued that these violations would have grave consequences, namely the loss of his property. He further argued that the decision to be adopted by the Court of Cassation would have a significant impact on the uniform application of the law, claiming that a person was not obliged to know about the existence of a will on the day of the testator’s death. He finally argued that the judgment of the Court of Appeal contradicted a decision of the Court of Cassation adopted on 3 March 2005 in connection with another dispute. A copy of that decision was attached to the applicant’s appeal. 9. On 15 January 2007 the Court of Cassation, sitting in camera as a panel of seven judges, decided to return the appeal, that is, to declare it inadmissible. The reasons provided were as follows: “The Civil Chamber of the Court of Cassation ... having examined the question of admitting [the applicant’s appeal lodged against the judgment of the Civil Court of Appeal of 13 December 2006], found that it must be returned with the following reasoning: Pursuant to Article 230 § 1 (4.1) of [the CCP] an appeal on points of law must contain any of the grounds [required by] Article 231.2 § 1 of [the CCP]. 10. The relevant provisions of the Constitution read as follows: “Everyone has the right to an effective remedy to have his rights and freedoms protected by the judicial and other public authorities. Everyone has the right to defend his rights and freedoms by any means not prohibited by law. ...” “Everyone has the right to a public hearing of his case by an independent and impartial court within a reasonable time in conditions of equality and with respect for all fair trial requirements in order to have his violated rights restored, as well as the validity of the charge against him determined. ...” “...The highest judicial instance in Armenia, except matters falling within constitutional jurisdiction, is the Court of Cassation which is called upon to ensure the uniform application of the law. ...” 11. The relevant provisions of the CCP, as in force at the material time, read as follows: Article 219: Entry into force of judgments of the Court of Appeal “Judgments of the Court of Appeal enter into force from the moment of their delivery.” Article 222: Review of judicial acts through cassation proceedings “1. Judgments of the first instance courts, the Commercial Court and the Court of Appeal which have entered into force ... can be reviewed through cassation proceedings based on the appeals brought by persons indicated in Article 223 of this Code.” Article 223: Persons entitled to bring appeals on points of law “2. Appeals on points of law against judgments of lower courts which have entered into force can be brought by (1) the parties to the proceedings; [and] (2) persons who were not parties to the proceedings but whose rights and obligations were affected by the judicial act deciding on the merits of the case.” “1. Appeals on points of law lodged against judgments of the first instance courts, the Commercial Court and the Court of Appeal which have entered into force ... are examined by the Civil Chamber of the Court of Cassation (hereafter, Court of Cassation). 2. The objective of the Court of Cassation’s activity is to ensure the uniform application of the law and its correct interpretation, and to promote the development of the law.” “An appeal on points of law can be lodged on the ground of ... a substantive or a procedural violation of the parties’ rights...” “1. An appeal on points of law can be lodged within six months from the date of entry into force of the judicial act of a lower court deciding on the merits of the case.” “1. An appeal on points of law must contain (1) the name of the court to which the appeal is addressed; (2) the appellant’s name; (3) the name of the court that has adopted the judgment, the case number, the date on which the judgment was adopted, the names of the parties, and the subject-matter of the dispute; (4) the appellant’s claim, with reference to the laws and other legal acts and specifying which provisions of substantive or procedural law have been violated or wrongly applied ...; (4.1) arguments required by any of the subparagraphs of paragraph 1 of Article 231.2 of this Code; [and] (5) a list of documents enclosed with the appeal. 2. An appeal on points of law shall be signed by the appellant. 3. A document certifying payment of the State fee shall be attached to the appeal.” “1. An appeal on points of law shall be returned if it does not comply with the requirements of Article 230 and paragraph 1 of Article 231.2 of this Code or if it has been lodged by a person whose rights have not been violated. 2. The Court of Cassation shall adopt a decision to return an appeal on points of law within ten days after the receipt of the appeal. 3. In its decision to return an appeal on points of law the Court of Cassation may fix a time-limit for correcting the shortcoming and lodging the appeal anew.” “1. The Court of Cassation shall admit an appeal on points of law, if (1) the judicial act to be adopted on the given case by the Court of Cassation may have a significant impact on the uniform application of the law, or (2) the contested judicial act contradicts a judicial act previously adopted by the Court of Cassation, or (3) a violation of the procedural or the substantive law by the lower court may cause grave consequences, or (4) there are newly discovered circumstances. 2. The Court of Cassation sitting as a panel composed of the President of the Court of Cassation and the judges of the chamber shall decide whether appeals on points of law lodged with the Court of Cassation comply with the requirements of Article 230 of this Code and paragraph 1 of this article and should be admitted. 3. An appeal on points of law shall be admitted if at least three of the judges of the Court of Cassation vote in favour of admitting it. This decision of the Court of Cassation is not subject to appeal.” 12. The above Articles 231.1 and 231.2 of the CCP were amended into Articles 233 and 234 by the Law of 28 November 2007 with effect from 1 January 2008, following the Constitutional Court’s decision of 9 April 2007 (see paragraph 14 below), and read as follows: “... 2. The Civil and Administrative Chamber of the Court of Cassation shall adopt a decision to return an appeal on points of law within ten days after the receipt of the case file by the Court of Cassation. The decision to return an appeal on points of law must be reasoned, except for the cases in which an appeal on points of law is returned for the lack of the ground stipulated by Article 234 § 1 (1). ...” “1. The Court of Cassation shall admit an appeal on points of law if, in its opinion, the appeal substantiates that (1) the decision of the Court of Cassation concerning the question raised in the appeal may have a significant impact on the uniform application of the law, or (2) the contested judicial act prima facie contradicts a decision previously adopted by the Court of Cassation, or (3) a prima facie judicial error made by the lower court which may cause or have caused grave consequences. ...” 13. The new Article 233 § 2 of the CCP was further amended by the Law of 26 December 2008 with effect from 1 January 2009, following the Constitutional Court’s decision of 8 October 2008 (see paragraph 15 below) and currently reads as follows: “... 2. The Court of Cassation shall adopt a decision to return an appeal on points of law within one month after the receipt of the case file by the Court of Cassation. The decision to return an appeal on points of law must be reasoned. ...” 14. The Constitutional Court found paragraph 2 of Article 231.1 in its part concerning the lack of a requirement to provide reasons for a decision to return an appeal on points of law incompatible with, inter alia, Articles 18 and 19 of the Constitution, because it failed to ensure legal safeguards for an effective and accessible administration of justice. The remaining contested provisions were found to be compatible with the Constitution. 15. The Constitutional Court found paragraph 2 of Article 233 in its part reading “except for the cases in which an appeal on points of law is returned for the lack of the ground stipulated by Article 234 § 1 (1)” incompatible with Articles 18 and 19 of the Constitution. The Constitutional Court noted that the amendments introduced following its decision of 9 April 2007 did not sufficiently ensure the relevant legal guarantees. It found that the legislature, by including the exception in question, failed to ensure the implementation of the above-mentioned decision. The Constitutional Court explained that the requirement of a reasoned decision did not concern this or that particular admissibility ground of an appeal on points of law, but concerned all such grounds. This requirement aimed at ensuring the legitimate and lawful exercise of the court’s discretionary powers and an individual’s confidence in a judicial act.
| 0
|
train
|
001-91786
|
ENG
|
AUT
|
CHAMBER
| 2,009
|
CASE OF LANG v. AUSTRIA
| 3
|
Remainder inadmissible;Violation of Art. 14+9
|
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
|
5. The applicant was born in 1969 and lives in Altmünster. 6. Upon his baptism on 30 July 1983 the applicant became a member of the recognised religious community of the Jehovah’s Witnesses in Austria, within which he assumed the function of a preacher (Prediger) and, since 6 November 1997, an elder (Ältester) in the Jehovah’s Witnesses’ community in Gmunden. This function includes providing pastoral care to the community, leading church services and preaching. 7. In September 2000 the Upper Austrian Military Authority (Militärkommando) ordered the applicant to undergo examinations as to his ability to perform military service. The applicant appealed against the order, claiming that he should be dispensed from military service since he performed a function within the Jehovah’s Witnesses which was equivalent to that of members of a recognised religious society who were exempt from military service under section 24(3) of the Military Service Act (Wehrgesetz). To restrict such a privilege to members of recognised religious societies was not objectively justified and was therefore in breach of the Federal Constitution. 8. On 9 October 2000 the Upper Austria Military Authority dismissed the applicant’s appeal. On 14 December 2000 the Federal Minister for Defence (Bundesminister für Landesverteidigung) confirmed that decision. Both authorities refused the applicant’s appeals on the ground that he did not belong to a recognised religious society. 9. Subsequently, on 25 January 2001, the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof), requesting it to repeal the wording “recognised religious societies” in section 24(3) of the Military Service Act. 10. On 25 September 2001 the Constitutional Court refused to deal with the applicant’s complaint for lack of prospects of success. It found that the applicant’s obligations under the Military Service Act did not interfere with the internal rules and practices of the religious community at issue. It furthermore referred to earlier decisions dealing with the legal status of religious communities and their difference from recognised religious societies under the Recognition Act. 11. On 23 May 2003 the Administrative Court (Verwaltungsgerichtshof) dismissed the applicant’s complaint. It found that exemption from the obligation to perform military service merely applied to members of recognised religious societies and could not be extended to members of registered religious communities. This decision was served on the applicant’s counsel on 4 July 2003. 12. On 26 August 2003 the applicant asked the Federal Ministry for Defence to take no action until the European Court of Human Rights had decided on his application. The applicant was informed that an instruction had been issued to the Upper Austrian Military Authority not to call him up until further notice. 13. Article 9 a § 3 of the Federal Constitution reads as follows: “Every male Austrian citizen is liable for military service. Conscientious objectors who refuse to perform compulsory military service and who are dispensed from this requirement must perform alternative service. The details shall be regulated by ordinary law.” 14. Section 24(3) of the Military Service Act, as in force at the relevant time, read as follows: “An exemption from the obligation to perform military service shall apply to the following members of recognised religious societies: 1. ordained priests, 2. persons involved in spiritual welfare or in clerical teaching after graduating in theological studies, 3. members of a religious order who have made a solemn vow, and 4. students of theology who are preparing to assume a clerical function.” 15. For a detailed description of the legal situation in Austria in this field see Löffelmann v. Austria (no. 42967/98).
| 1
|
train
|
001-58185
|
ENG
|
ITA
|
CHAMBER
| 1,997
|
CASE OF VIERO v. ITALY
| 4
|
Art. 6 inapplicable
|
C. Russo;N. Valticos;R. Pekkanen
|
7. Mr Dario Viero, who is employed by a local medical and welfare centre (“the USSL”) in Veneto, lives in Piovene (Vicenza). 8. On 23 January 1987 he instituted proceedings in the Veneto Regional Administrative Court (“the RAC”) for judicial review of a decision of the Regional Council (Giunta regionale) classifying his post in a lower staff category than the one which corresponded to the duties he actually performed, and claimed on that account payment of the difference in remuneration. On the same day he asked for a date to be fixed for the hearing. He subsequently filed three applications (on 7 June 1989, 12 March 1990 and 2 November 1992) for the case to be set down for an urgent hearing. 9. On 13 January 1995 the RAC ordered the USSL to file certain documents. On 6 April 1995 the RAC gave judgment against the applicant, who, on a date which has not been specified, appealed to the Consiglio di Stato. The proceedings are still pending.
| 0
|
train
|
001-60505
|
ENG
|
BGR
|
CHAMBER
| 2,002
|
CASE OF ANGUELOVA v. BULGARIA
| 1
|
Violation of Art. 2 in respect of death of applicant's son;Violation of Art. 2 in respect of failure to provide timely medical care;Violation of Art. 2 due to lack of effective investigation;Violation of Art. 3;Violation of Art. 5;Violation of Art. 13;No violation of Art. 14
|
Christos Rozakis
|
9. The applicant, Mrs Assya Anguelova, is a Bulgarian national who was born in 1959 and lives in Razgrad. 10. On 29 January 1996 her son, Anguel Zabchekov, aged 17, who had been known to the police as a suspect on theft charges, died after having spent several hours in police custody in Razgrad following his arrest for attempted theft. The ensuing investigations conducted by the prosecution authorities ended with the conclusion that the death must have been caused by an accidental injury which pre-dated Mr Zabchekov's arrest. The applicant contested that conclusion. The applicant describes herself and her late son as belonging to the Roma/Gypsy ethnic group). 11. According to the statements of several witnesses, on 28 January 1996 Mr Zabchekov spent part of the day doing some odd jobs for a neighbour. In the evening he went home for a while and then went out with his sister, her boyfriend and a Mr M., another friend of his. He then spent most of the evening in their company at a local bar. He consumed alcohol. At about 10.30 p.m. or 11.30 p.m. Mr Zabchekov's sister and her boyfriend left the bar, leaving him there with Mr M. The bar closed shortly afterwards. Mr M. stated that he had then left the bar with Mr Zabchekov and that they had parted at the door, Mr M. returning home. All the witnesses (the owner of the bar, the person for whom Mr Zabchekov had worked that day, his sister and her boyfriend, and Mr Zabchekov's father, who was at home when his son dropped in on his way to the bar) were unanimous that he had been in good health, that he had no visible injuries on his body, that he had not been involved in any quarrel or fight, and that he had consumed alcohol. 12. At about midnight on 29 January 1996 a Ms I.A., who lived in a block of flats in Beli Lom Street in Razgrad, noticed from her balcony a man later identified as Mr Zabchekov hanging around by parked cars, bending over and “doing something”. Ms I.A. telephoned a neighbour, Ms I.M. The two women shouted at Mr Zabchekov from their balconies to ask him what he was doing. At that moment Sergeant Mutafov (“C”), a police officer who was not on duty that day, and a young man (“D”), both of whom also lived in the same block of flats, were passing by in the street and were alerted by their neighbours. 13. Mr Zabchekov attempted to run away, and C ran after him. The chase apparently continued for a minute or two. Then D and his two neighbours saw C appearing from around the corner, holding Mr Zabchekov and leading him back to the entrance of the building. The witnesses stated that there had been snow on the ground. 14. C later stated that while trying to run away Mr Zabchekov had slipped and fallen down but had quickly stood up again. This was confirmed by Ms I.A. and Ms I.M., who had been watching from their balconies. They explained that Mr Zabchekov had fallen on a patch of grass. However, D, who had remained in the street and had also observed the incident, stated that he had not seen Mr Zabchekov falling at any moment before his arrest. He repeated that statement at a confrontation with the other witnesses. 15. C was the only witness of the events between the moment when Mr Zabchekov and he had turned round the corner and the moment when they had reappeared in front of the building in Beli Lom Street. C stated that Mr Zabchekov had slipped and fallen down two more times. As a result, C had been able to catch up with him and, while Mr Zabchekov was back on his feet and running, C had tripped him up, Mr Zabchekov had fallen to the ground and C had pounced on him. C had then pulled Mr Zabchekov up by the arm and had led him back. Asked to specify the part of his body on which Mr Zabchekov had fallen, C replied that the boy had fallen on his face. C could not remember whether Mr Zabchekov had protected his face with his hands. C also stated that he had had difficulty in running and apprehending Mr Zabchekov because he had had a leg injury and his shoelaces had been untied. 16. Sergeant Dimitrov (“G”), one of the police officers who arrived later, stated as follows: “When we arrived on the spot [C] told us that while he was trying to arrest Mr Zabchekov the latter ran away and fell two or three times and that if he had not fallen C would not have been able to catch up with him.” 17. The witnesses were unanimous that, while C had been leading Mr Zabchekov back to the entrance of the block of flats, the latter had slipped and fallen. There were discrepancies as to precisely how that had happened. Ms I.M., who observed the incident from her balcony, stated that when C and Mr Zabchekov had reappeared from around the corner of the building, the latter had slipped, fallen and rolled over. D stated, however, that Mr Zabchekov's leg had slipped and he had fallen on his buttocks. C maintained that Mr Zabchekov had in fact only slipped but had not fallen, because he had been holding him. 18. C stated that he had not hit Mr Zabchekov and had not seen anyone hitting him. That was confirmed by Ms I.A. and Ms I.M. The latter, who was also the owner of one of the cars in the car park, clarified that she had indeed seen Mr Zabchekov rolling on the ground when C was leading him back after the chase, but stated that she had not seen anyone kicking him or beating him. D did not mention whether he had seen anyone hitting Mr Zabchekov. 19. C also stated that when he had been in close contact with Mr Zabchekov after arresting him he had not noticed any traces of blood or any grazes on his face. He added that Mr Zabchekov's hair covered part of his forehead and that the colour of his face was dark. D stated that he had not noticed any blood or grazing on Mr Zabchekov's face. He added that the latter smelled of alcohol. 20. Having apprehended Mr Zabchekov, C asked Ms I.M. to call the police, which she did at about 12.20 a.m. Afterwards, she remained inside her flat. 21. C, D and Mr Zabchekov waited at the entrance of the block of flats, apparently for about ten or twenty minutes. It appears that Ms I.A., who stayed on her balcony, did not have a view of the entrance. 22. The witnesses' statements contain few details as to whether there was any kind of verbal exchange between Mr Zabchekov and any of them before the arrival of the police. Some of the witnesses stated that Mr Zabchekov had been mumbling something barely comprehensible. According to Ms I.M., who was watching from her balcony, Mr Zabchekov had repeated several times that he was drunk. Ms I.A., Ms I.M. and C stated that, when Mr Zabchekov had fallen to the ground after being arrested, C had told him: “Get up, I'm not going to drag you.” D stated that he had not heard any such words being uttered. None of the witnesses' statements indicates whether C or D spoke with Mr Zabchekov during the time when they were alone with him at the entrance of the block of flats. 23. In the statement he gave on 29 January 1996, C said that, after the police had left with Mr Zabchekov, he had found a wrench on the spot where D, Mr Zabchekov and himself had been waiting for the police to arrive. C thought that it must have belonged to Mr Zabchekov as it was the right size for removing a car battery. C explained in his statement that he had kept the wrench and had handed it over to the investigator in the morning on 29 January 1996 when he had been summoned to the police station after the death of Mr Zabchekov. However, in a statement taken on 31 January 1996 Sergeant Atanassov (“H”), who had been on duty at the police station when Mr Zabchekov was brought there, said that he had noticed the wrench on a desk at the police station no later than 1.30 a.m., shortly after Mr Zabchekov had arrived there. At a confrontation with the other police officers on 26 April 1996, H recalled that he had in fact first seen the wrench at a later stage. 24. When the telephone call was received at the local police station a patrol car with two police officers, Sergeants Penchev (“A”) and Kolev (“B”), was dispatched to the address. When the police officers arrived they saw C and Mr Zabchekov at the entrance of the block of flats. D was also standing nearby. 25. A recognised Mr Zabchekov, whom he knew as a suspect in several pending theft investigations, and addressed him by name. He handcuffed him. A and some of the other police officers later asserted that at that moment A warned the others to be careful as Mr Zabchekov had a “brain disease”. 26. Another police car, with three police officers, Sergeants Ignatov (“E”), Georgiev (“F”) and Dimitrov (“G”), arrived shortly afterwards. The officers then proceeded to search the area for evidence of attempts by Mr Zabchekov to break into cars. At some point, A led Mr Zabchekov to one of the cars which appeared to have been broken into and asked him whether he had been trying to steal anything. Mr Zabchekov allegedly denied this. He was then handcuffed to a small tree and the police officers continued to search the area. Having identified two cars which had been broken into, the police officers rang the owners' doorbells. One of them came out and went to see the damage done to his car. During that time Mr Zabchekov remained handcuffed to the tree. 27. The only witnesses who gave details about the events between the police's arrival and their departure with Mr Zabchekov were the police officers on duty. Ms. I.A., and D merely stated that the police officers had searched the area. C stated that he had gone to alert the owners of the cars. He had only seen that at a certain point Mr Zabchekov was with the police officers at the car park, where his colleagues were comparing the soles of Mr Zabchekov's shoes with traces visible in the snow. One of the car owners was questioned, but only in respect of the damage caused to his car, by a police officer who visited the site later, at about 11 a.m. on 29 January 1996. 28. According to some of the police officers, at some point when they were searching the area they had noticed Mr Zabchekov lying or sitting on the ground. A stated that at that point he had released Mr Zabchekov from the tree, placed him on the back seat of the police car and handcuffed both his hands. All the police officers who were present in Beli Lom Street stated that at that time they had not noticed any trace of injury on Mr Zabchekov's face. Some of them stated that he appeared to be drunk, and that he had been mumbling and had not been communicative. 29. At about 12.50 a.m. Mr Zabchekov was taken to the police station by A and B. The sergeant on duty, H, stated that he had seen A and B enter the police station with Mr Zabchekov walking between them. The latter's hands had been handcuffed behind his back. A and B had been holding him by the arms and leading him in. Mr Zabchekov had been put in office no. 1. A stated that at that point he had removed the handcuffs from the boy. 30. No written order for Mr Zabchekov's detention was issued. 31. According to the statements of A, B and H, Mr Zabchekov stayed in office no. 1 with B and H, while A went to report to the senior officer on duty, Colonel Iordanov (“I”). H further stated that at that moment he had noticed a bruise on Mr Zabchekov's eyebrow. A and B did not mention any injury. H also stated that Mr Zabchekov's clothes had been wet. They all noticed that Mr Zabchekov had been drunk and mumbling. Colonel I stated that A had informed him that Mr Zabchekov had been brought to the police station; A had said that the arrested person had been identified, but was too drunk for questioning. Colonel I had not seen Mr Zabchekov until about 4.30 a.m. According to the sergeants' statements, Colonel I had ordered that Mr Zabchekov should be given a seat in the passage to sober up. A had then instructed H to call him over the radio as soon as Mr Zabchekov was able to communicate. At an unspecified time A and B had left the police station and returned to their patrol duties. 32. H stated that Mr Zabchekov had fallen asleep soon afterwards, on a chair in the passage, and had been snoring. At about 3 a.m. H had allegedly noticed that Mr Zabchekov had been lying asleep on the floor. H had woken him and put him back on the chair, thinking that “he might catch a cold”. H further stated that at about 3.50 a.m. he had again gone to see Mr Zabchekov who had been sitting on the chair, sleeping and shivering. H had decided to move him back to office no. 1, where it had been warmer. He had woken him and helped him enter the room. Shortly afterwards Mr Zabchekov had slipped from the chair. H had noticed that he had been breathing heavily. H stated that at that point he had contacted Sergeant Dontchev (“J”), and had told him “to call Sergeant Penchev [A] or an ambulance”. 33. J stated that, in accordance with the duty schedule, he had slept on the premises of the police station until 2 a.m. on 29 January 1996, when he had been woken for duty. He had not been informed that anyone was being detained. J's statement did not mention whether, between 2 a.m. and 3.50 a.m., he had gone down the passage where, at that time, according to H, Mr Zabchekov had been sleeping on a chair. J stated that he had only become aware of Mr Zabchekov's presence when at 3.50 a.m. H had reported that the boy's condition seemed to be deteriorating. J had then seen him, noticing injuries on his forehead, and had called A and B by radio. 34. At approximately the same time H or J had alerted Colonel I, the senior officer on duty. I stated that at that moment he had noticed injuries on Mr Zabchekov's face. 35. A and B stated that at 4.30 a.m. they had been contacted by radio and had been told that Mr Zabchekov's condition was rapidly deteriorating. Arriving at the police station, the sergeants had seen Mr Zabchekov lying on the ground, breathing heavily. B had then driven to the hospital and had returned, with Dr Mihailov, the paediatrician on duty, following in an ambulance. 36. Dr Mihailov later stated that at about 5 a.m. the hospital employee in charge of emergencies had asked him to go to the police station “for a 15-year-old boy”. Dr Mihailov explained that he had seen that employee talking to the police officers. He also pointed out that he had not been given any prior information about the boy's condition. 37. Dr Mihailov examined Mr Zabchekov at the police station and advised that he should be taken to hospital as his pulse rate was low. Mr Zabchekov was driven to the hospital in the ambulance, with A and B following in their police car. When they arrived at the hospital, A and B helped to bring Mr Zabchekov to the corridor in front of the office of the doctor on duty. According to the statements of A and B, when Mr Zabchekov was examined several minutes later by Dr Ivanova, the internist on duty, there had followed a heated discussion between her and Dr Mihailov. The police officers had then been informed that Mr Zabchekov had died. 38. B stated that Dr Ivanova had said to him and his colleague: “You must have known Mr Zabchekov's condition”, and that she had insisted that she had not seen him breathing. 39. Dr Mihailov stated that in the police station he had noticed bruises on Mr Zabchekov's chest and that at that time the boy had still been alive but had been unconscious with a weak pulse. Dr Mihailov had then asked the police officers how long the boy had been in such a condition. The police officers had replied: “He was brought to the police station in that condition. 40. Dr Ivanova stated that at about 5 a.m. she had been asked by Dr Mihailov to verify whether a patient who had been brought to the hospital had died. Having found that no cardiac activity was noticeable she had attempted cardiac massage, but to no avail. She further stated that, when she had asked why Dr Mihailov, and not herself, as the internist on duty, had been dispatched to the police station, the hospital employee in charge of emergencies had replied that the request for an ambulance had been said to concern a child, and so it had been decided to send the paediatrician on duty. 41. According to normal practice, all detentions are recorded in a register kept at the police station. The register contains a series of entries organised in columns: the number assigned to the detainee, the name of the officer entering information into the register, the name of the detainee, the reasons for detention, the action taken and the time of release. Information corresponding to each detainee is entered in chronological order. 42. At the Court's request the Government submitted a copy of the Razgrad police station's register for 29 January 1996. The register does not contain an entry for Mr Zabchekov. However, it contains an entry for an “unidentified person” who was assigned number 72. 43. The register does not contain a separate column recording the time of detention. In respect of some of the detainees listed on the same page the time of detention is mentioned together with the date. In respect of the “unidentified person”, as with some of the other detainees listed on the same page, there is no mention of the time of detention in the column indicating the date. However, immediately after the words “unidentified person”, there appears, spread over two columns and two lines, the entry “29 I 96, 01.oo”. A visual examination of the copy of the register shows that the figure “1.oo” has been written over a figure which, as far as legible, had originally read “3.oo” or “5.oo”. 44. It can be also observed that the registration numbers on the same page have been written over. From the copy provided by the Government it is difficult to see the original numbers that were altered. Nevertheless, it can clearly be seen that there are equal spaces between each of the entries except the numbers “72” and “73”, between which there is a significantly smaller space. 45. The entry under number 72 for the detention of an unidentified person states that that person was brought to the police station by A. On the right-hand side of the same line there appears a signature which, in so far as it is legible, appears to be that of Colonel I. 46. In the course of the investigation Colonel I, the senior officer on duty, and J, his assistant that night, were questioned in relation to the registration of Mr Zabchekov's presence at the police station. Colonel I stated that he had not instructed A to register the detainee since A was familiar with the procedure. J stated that shortly after 3.50 a.m., when he had been alerted by H about Mr Zabchekov's deteriorating condition, he had checked the register of detainees but had not seen any entry concerning him. Colonel I further denied having made an entry in the register and stated that the entry for an unknown person had not been there when he had left the police station after Mr Zabchekov's death. 47. Early in the morning of 29 January 1996 the police officers involved submitted a written account of the night's events to the head of the local police. Towards the end of his handwritten report C stated, with no apparent connection with the surrounding text: “The person I apprehended was swarthy (Gypsy)” (“Този когото задържах беше мургав (циганин)”). 48. The head of the local police opened file ZM-I no. 128 which contained a summary of the events, the reports of seven police officers and the written statements by D and one of the owners of the cars which Mr Zabchekov had allegedly tried to break into. Also early in the morning of 29 January 1996 Mr Neshev, an investigator from the Regional Investigation Service (Окръжна следствена служба) in Razgrad opened criminal proceedings under file no. 13/1996 to investigate the death of Mr Zabchekov. 49. According to the applicant, at 8 a.m. on the same day Mr Neshev, accompanied by two uniformed police officers, went to the house of the applicant's family to inform them of Mr Zabchekov's death. They spoke to the boy's stepfather. According to the applicant, the investigator stated that during the night Mr Zabchekov had tried to break into two cars, that the police had chased him, and that, during the chase, Mr Zabchekov had fallen down and had hit his head against the asphalt. 50. Also on 29 January 1996, Mr Neshev questioned the police officers involved and D, the young man who had been with Sergeant Mutafov (C) during the brief chase on Beli Lom Street. The investigator also visited the hospital and saw Mr Zabchekov's body. Pictures of the body were taken. 51. On the same day at about 11.45 a.m. an officer from the local police went to Beli Lom Street in connection with the reported car-theft attempt. He noted that two cars bore signs of attempted theft and questioned their owners. At about 5 p.m., this time apparently acting in connection with the investigation into the death of Mr Zabchekov, he took a sample from a large red patch in the snow. Laboratory analysis revealed that it was animal blood. 52. Also on 29 January 1996 Mr Neshev ordered an autopsy. He put the following questions to the medical experts: “What are the causes of Zabchekov's death? Are there any traumatic injuries on Zabchekov's body? Do they have any causal relation to the death? How were the injuries inflicted? How long was the period between the infliction of the lethal injury and the death and is it possible, as witnesses claimed, that Zabchekov was conscious until 4.30 a.m.? Is the lethal injury related to injuries in places where the skin was broken? Are there any other visible injuries and did they require, in view of their visible characteristics, immediate medical treatment?” 53. The autopsy was carried out on 29 January 1996 (starting at 11.30 a.m.) by three doctors at the Regional Hospital in Razgrad. These were Dr Minchev, head of the forensic department, Dr Militerov, head of the pathology department, and Dr Marinov, a doctor in the forensic department. 54. In their report, dated 29 January 1996 (“the first report”), the experts described their findings in detail. Photographs were taken. 55. The external inspection of the body revealed, inter alia: “At the outer end of the left eyebrow, over the orbital rim, a superficial wound of longish shape, measuring 1 cm by 0.4 cm, with slightly uneven and grazed edges, and covered by a thin brownish scab. The soft tissue around the wound is slightly swollen, the skin being of bluish-purple colour. The eyeball of the left eye is slightly protruded (outwardly) ... A slight surface scar 3.5 cm long, with mild bruising ... on ... the left wrist ... Two surface bruises measuring 7.5 cm by 0.5 cm and 3.5 cm by 0.6 cm, of brownish colour, covered by a reddish scab on the right wrist ...” 56. In the concluding part of the report the experts summarised the injuries on Mr Zabchekov's body as follows: “[1.] Skull and cerebral trauma: Superficial lacerated contusion (a deep bruise) located on the outer side of the left eyebrow along its orbital rim; haematomas on the skin and in the soft tissue around this wound and on the left eyelid, fracture of the back wall of the left 'eye bone' reaching its lower external side, with a bow-like fissure under the external injury described above; epidural haematoma on the left side (haemorrhage between the brain and the skull bones – 110 ml; epidural oedema ... [identified as the cause of death]). [2.] Haematoma on the skin, spotted in a characteristic manner, and haematoma in the soft tissue on the right side of the chest, along the anterior axillary line. [3.] Surface skin grazes on the right side of the forehead and on the upper surface of the left wrist with a limited haematoma in the soft tissue under the skin. [4.] Haematoma of an oval shape and diameter of 0.5 cm on the mucous membrane of the left lower lip. [5.] Two strip-like surface bruises on the skin of typical shape, and haematoma in the soft inner tissue, in the area of the wrist joint of the right hand.” 57. The experts further concluded: “[The death was caused by] accumulated epidural cerebral haematoma on the left-hand side of the forehead, containing 110 ml of blood, followed by a cerebral oedema, with wedging of the cerebellar tonsils into the foramen magnum; this oedema led to the suppression and detachment of vital brain centres (those of breathing and heart activity, which in turn caused a pulmonary oedema), and was the direct cause of death.” 58. Addressing the question of the manner in which the injuries had been inflicted, the experts stated: “1. The injury in the area of the left orbital rim and the left eyeball and the epidural haematoma were caused by a blow by, or against, a blunt object, or an object with a blunt edge, [which had] a delineated [limited] and uneven surface. The blow was sudden and sufficiently strong. It caused the fracture of the back wall of the left 'eye bone' reaching its lower external side (furthermore, the skull bones are 0.2 cm thick); 2. [The injury to the right side of the chest was caused by] a blow by, or against, a hard blunt object, or an object with a blunt edge, having a larger impact surface. The marks in this area are spotted in a manner characteristic of an imprint of the victim's clothes. 3. [The injuries to the right side of the forehead and to the wrists were the result of] blows, or pressing, by or against sharp-edged objects. [The injury to the left part of the lower lip was caused by] a blow by or against a hard blunt object having a delineated [limited] surface.” 59. The experts also stated that in cases of epidural haematoma of the kind Mr Zabchekov had suffered there was characteristically a lucid interval of four to six hours during which no visible signs would be displayed, except that “the victim gradually becomes feeble, apathetic and sleepy, after which he falls into a coma and dies – as happened in the present case (during the period between 1 a.m. and 5 a.m. on 29 January 1996).” The report concluded that Mr Zabchekov's death had been inevitable in the absence of urgent surgical intervention. 60. The laboratory analysis found an alcohol level of 1.42‰ in Mr Zabchekov's blood and 2.40‰ in his urine, corresponding to a medium level of alcohol intoxication. 61. According to the applicant, in the morning of 30 January 1996 she went to the office of the Regional Investigation Service in Razgrad and requested information about the circumstances surrounding her son's death. Mr Neshev, the investigator, informed the applicant that her son had died of a skull fracture. According to the applicant, he explained that her son had been trying to steal car parts and that, when the police had sought to apprehend him, he had run away, had fallen down and had hit his head. According to the applicant, during this meeting Mr Neshev asserted that her son had been taken to hospital, omitting the fact that he had been in police custody. When asked how Mr Zabchekov's skull could have been fractured as a result of his fall, Mr Neshev had allegedly explained that the autopsy had found an “abnormally thin skull”. 62. In the afternoon of 30 January 1996, upon receiving Mr Zabchekov's body from the hospital, the applicant and other family members noticed bruises on his body. The applicant went to the office of a local newspaper, spoke with two journalists and took them to her home, where they took pictures of Mr Zabchekov's body and clothes. Late in the afternoon of 30 January 1996 Mr Zabchekov was buried. 63. On 31 January and 1 February 1996 the investigator questioned Ms I.M. and Ms I.A. 64. On 31 January 1996, by order of the regional prosecutor, Ms Hadzhidimitrova, the investigation was transferred to the Regional Military Prosecutor's Office (Окръжна военна прокуратура). That decision was based on the finding that Mr Zabchekov had died after having been in police detention. The regional prosecutor stated, inter alia: “... for several hours immediately preceding [his] death, the minor Zabchekov, apprehended at 1 a.m. on 29 January 1996 while attempting to steal car parts, was taken by [police] officers ... and placed within the premises of the unit on duty in order to restrict his freedom of movement. Therefore, although he was not detained pursuant to section 35(1) taken in conjunction with section 33(1)(1) of the National Police Act [Закон за националната полиция], as a matter of fact Zabchekov was forcibly held in the police station for about three hours and in the course of his stay [there] ... his condition suddenly deteriorated, and he lost consciousness.” 65. On 31 January 1996, having received the file on the case, the Regional Military Prosecutor's Office opened an investigation under a new file number (3-VIII/96, prosecutor's file 254/96). The case was assigned to a military investigator (военен следовател). During the following weeks the military investigator conducted new examinations of the police officers involved, questioned five persons who had spent the afternoon and evening of 28 January 1996 with Mr Zabchekov, and also heard Dr Mihailov and Dr Ivanova. 66. Two of the police officers, Sergeant Penchev (A) and Sergeant Georgiev (F), mentioned Mr Zabchekov's ethnic origin in their oral evidence to the military investigator. A stated that when he had arrived at Beli Lom Street he had seen two persons emerging from the entrance of the building, one of whom had been “a Gypsy with a criminal record – Anguel Zabchekov”. In his statement F. referred to the applicant's son as “the Gypsy” (three times), “the arrested” (seven times) and “Zabchekov” (twice). 67. On 12 March 1996 the investigator conducted examinations of the witnesses Ms I.A., Ms I. M., C and D. His questions related solely to the number of times Mr Zabchekov had fallen to the ground during the chase on Beli Lom Street and the places where this had happened. On 18 March 1996 the investigator appointed an expert to analyse the clothes which Mr Zabchekov had been wearing on 28 and 29 January 1996. In his report of 20 March 1996 the expert stated that no traces of shoe soles could be found but explained that microscopic remains from particles from a shoe sole would not normally be left on soft fabric. 68. On 20 March 1996 the investigator conducted a reconstruction of the events during Mr Zabchekov's arrest in order to clarify the witnesses' evidence. Those taking part were Sergeant Mutafov (C), the young man who had been with him on 28 and 29 January (D), and the two persons who had observed the scene from their balconies, Ms I.A. and Ms I.M. The police officers who had arrived at Beli Lom Street after Mr Zabchekov was arrested by C did not participate in the reconstruction, which was almost exclusively concerned with the events before the arrival of the two police cars. The reconstruction was videotaped. 69. On 11 April 1996 the applicant submitted to the Varna Military Prosecutor's Office a request for the exhumation of her son's body and for the assignment of a new medical expert, stating that her son had been buried in haste and that exhumation of his body was essential. The applicant suspected that her son's ribs might have been broken. She also submitted to the investigator, Mr Atanasov, two X-ray photographs of her son's head taken several months before his death, to be used for the purpose of establishing whether his skull had been “soft” or “thin”. 70. On 17 or 18 April 1996 five medical experts were appointed to re-examine the conclusions as regards the causes of Mr Zabchekov's death. One of them, Dr Minchev, had participated in the initial group of experts. The other four were Professor Pavlov, head of the forensic department at the Medical University in Varna, Dr Kiuchukov, from the university's neurosurgery department, and Dr Dokov and Dr Radoinova, senior assistants in the forensic department of the same university. The experts were asked the following questions: “1. What injuries did Zabchekov sustain? What was the cause of death? 2. In what manner were the injuries sustained and by how many blows could they have been caused? Could the injuries have been caused by consecutive falls (in accordance with the witnesses' statements and the findings of the investigation reconstruction as recorded on video), or were they the result of direct blows? 3. When were these injuries inflicted? 4. What was Anguel Zabchekov's blood alcohol level at the time of his arrest, at about 12.15 a.m.?” 71. On 26 April 1996 the investigator held a confrontation between all the police officers involved. On the same day three additional witnesses were questioned. On 23 May 1996 the applicant repeated her request for an exhumation. On 29 May 1996 another witness was questioned. On 11 June 1996 Mr Dimitrov, a prosecutor from the Regional Military Prosecutor's Office, sent the applicant a copy of his information note on the proceedings. The note stated, inter alia, that exhumation could be envisaged if this was considered necessary by the five medical experts, who had not yet submitted their opinion. 72. On 28 June 1996 the five experts delivered their report (“the second report”), which was based on an examination of the material in the investigation file. They had also seen the videotape of the reconstruction of Mr Zabchekov's arrest, which had been recorded on 20 March 1996. 73. The experts confirmed that Mr Zabchekov's death had been caused by an epidural oedema resulting from a skull fracture. They also stated, inter alia, that the fatal injury could have been inflicted by a kick, a punch or a blow by a blunt object, or also by a fall and a collision against a “flat broad surface” (широка удряща повърхност). They noted that the autopsy had not recorded any morphological data to allow the identification of the object which had caused the injuries. The second report indicated that the blow which had caused the skull fracture had not been very strong. That conclusion was based on the “particular features of the skull structure (as witnessed by the X-ray photographs enclosed and the thickness as described [in the autopsy report])”. 74. Contrary to the first medical report, which had stated that the interval between the skull injury and Mr Zabchekov's death had been approximately four to six hours, the report of the five experts concluded: “The haematoma ... which caused the death of Zabchekov, had been present for at least ten hours before the time of death. The basis for this conclusion is the appearance of the haematoma (blood clot of dark red colour), which is clearly visible on the photographs attached to the file. Clots of that kind, without the presence of liquid blood, are formed during a period of more than ten hours from the moment when they were caused. During this period the patients' condition is usually characterised by the so-called 'lucid interval' – the time during which they do not display visible warning signs. Their condition gradually deteriorates ... they develop a headache, speech disturbances and problems of coordination of movement, [they] become unstable and sleepy, they stagger, etc., until they fall into a coma.” 75. The photographs relied on by the experts were taken at the time of the autopsy, which began at 11.30 a.m. on 29 January 1996. 76. The experts also found, in view of the amount of alcohol found in Mr Zabchekov's blood, that the symptoms resulting from the head injury had been masked by the effects of alcohol. 77. The report of the five experts also dealt with the other injuries to Mr Zabchekov's body: “The haematoma on the right side of the chest is the result of a blow by or against a flat object with a broad hitting surface, which could have taken the form of a kick, a fall and a collision against a larger object and other objects. The general appearance of the bruise corresponds to the imprint of the clothes of the deceased, which indicates that the blow was inflicted through the clothes ... The bruises and injuries to the right side of the forehead, the two wrist joints and the lower lip are the result of the use of hard, blunt and/or sharp-edged objects with a limited hitting surface. The characteristics of the injuries to the two wrist joints make it possible to conclude that they were caused when the handcuffs were put on, in accordance with the available information ...” 78. On 25 July 1996 the investigator drew up a report proposing to terminate the proceedings. 79. On 31 July 1996 the Regional Military Prosecutor's Office closed the investigation as there was no connection between the acts of the police and the death of Mr Zabchekov. That conclusion was based on the finding of the second medical report that at least ten hours had passed between the injury and death. 80. On 6 August 1996 the applicant lodged an appeal with the National Military Prosecutor's Office (Прокуратура на въоръжените сили). She contended that the investigation had been incomplete and pointed to the repeated refusal to carry out an exhumation, to the alleged discrepancies between the evidence of different witnesses and to the lack of explanation for certain facts, including all the injuries to Mr Zabchekov's body. 81. On 18 December 1996 the National Military Prosecutor's Office confirmed the closure of the investigation and refused the applicant's requests. Its decision stated, inter alia: “[A]part from the physical force used during the arrest of Zabchekov for attempting to steal from cars, there is no evidence that any violence was used against him by police officers, whether ... inside or outside the ... police station. Furthermore, the firm conclusion of the report of the five experts, who are highly qualified in their field, is that the lethal injury was caused more than ten hours prior to death.” 82. It was also decided to refer the case back to the Regional Prosecutor's Office in Razgrad, which was competent to deal with the question whether a criminal act had been committed by a person other than a police officer. 83. On 20 January 1997 the regional prosecutor, Ms Hadzhidimitrova, referred the case to the investigator, Mr Neshev. She noted that the investigation in respect of the police had been closed on the basis of the finding that the fatal injury had been inflicted more than ten hours prior to the death of Mr Zabchekov. Therefore, further evidence needed to be collected as regard the whereabouts and the condition of Mr Zabchekov before 7 p.m. on 28 January 1996. 84. The additional investigation entailed the examination of the applicant and six other witnesses on 23 January 1997 by Mr Neshev. 85. On 23 and 24 January 1997 the applicant made further requests for the exhumation of the body and for a fresh forensic examination, claiming that there were inconsistencies in the evidence. That was rejected by the Razgrad Regional Prosecutor's Office on 31 January 1997 as being unnecessary. 86. The applicant complained to the Chief Public Prosecutor's Office (Главен прокурор). She stated, inter alia, that the prosecutors had consistently failed to explain why the police had not taken proper care of Mr Zabchekov following his arrest. 87. On 17 February 1997 Mr Neshev summoned the applicant (represented by counsel) to allow her to consult the file on the investigation. The applicant made a number of requests and objections concerning shortcomings in the investigation. In particular, she stated that there had been fundamental contradictions between the first and the second medical reports, and that it was clearly impossible for a person suffering from such a grave injury as that found by the autopsy to steal car parts and resist arrest. The applicant again requested the exhumation of the body and the appointment of experts to answer the questions raised in her previous requests. 88. On 18 February 1997 Mr Neshev drew up a report stating that the additional investigation ordered on 20 January 1997 had not disclosed evidence that Mr Zabchekov had been beaten prior to his arrest. It was therefore proposed to suspend the investigation. 89. By an order of 4 March 1997 the regional prosecutor, Ms Hadzhidimitrova, suspended the criminal proceedings as all available evidence had been collected and it was not possible to determine the precise circumstances under which the fatal head injury had been inflicted. 90. The decision noted the findings of the military prosecutors, in particular those concerning the skull fracture, and confirmed them. In respect of the other bodily injuries, the prosecutor stated that they had not placed Mr Zabchekov's life in danger. The decision also mentioned that when he had been taken to the police station Mr Zabchekov had been in good health. 91. On 10 March 1997 the applicant appealed to the Chief Public Prosecutor against the decision to suspend the proceedings. On 20 March 1997 the Chief Public Prosecutor's Office confirmed the suspension of the proceedings. 92. The applicant has submitted four colour photographs of the dead body of Mr Zabchekov and a photograph of the jacket which he was wearing before his death. The photographs were taken by journalists on 30 January 1996 at the applicant's home, after the autopsy and the return of the body for burial. 93. Two of the photographs are of Mr Zabchekov's face. The hair covers half of the forehead. Above and over the left eyebrow can be seen a bluish-purple bruise. The left eyelid is of a bluish colour. A bruise can also be seen on the lips, on the left side of the mouth. 94. On the other two photographs a purple bruise colour can be seen on Mr Zabchekov's chest, on its right side, partly under the right armpit. Wounds are visible on Mr Zabchekov's right wrist. 95. On an unspecified date the applicant, acting through the European Roma Rights Centre, a non-governmental organisation based in Budapest, solicited the opinion of Professor Jorgen Thomsen, State Pathologist, Institute of Forensic Medicine, University of Southern Denmark, Odense, a member of the United Nations Standing Team of Forensic Experts. Professor Thomsen gave a written opinion dated 4 February 1999. Professor Thomsen had at his disposal, inter alia, the description of what had allegedly happened in the case and extracts from the autopsy report and the reports of the forensic experts. Professor Thomsen stated, inter alia: “An epidural haematoma is usually caused by a fall against a hard surface or a strong blow with a blunt object. It is well known that a fall against a hard surface will often leave so-called contre-coup lesions. It is regrettable that the presence or absence of such lesions have not been mentioned. It has been mentioned that the deceased had a thin skull. In my opinion that is not an apologising factor in cases of interpersonal violence, as it is usually not known if a skull is thick or thin and it is inherent in the possible effects of violence that a person may have a thin skull. Together with the epidural haematoma there is usually a fracture (fissure) in the temporal bone and a rupture of the middle meningeal artery. The haemorrhage is thus arterial. It is in the beginning limited by the attachment of the dura to the inside of the bone. There is thus often a lucid interval that may last several hours, but often the interval is not longer than a couple of hours. If the traumatic lesion involves the brain with a concussion or contusions there is usually not a lucid interval. I agree with the two forensic reports that the cause of death was the epidural haematoma and that it was caused by one of the types of traumas mentioned. It may well have happened before the victim was arrested, but it can in no way be excluded that he sustained the fatal lesion during his stay in the police centre. I do not agree with the statement that there was a lapse of ten hours from the trauma until death. It was based on the appearance of the blood clot. It is known that the blood after death can take various forms and even after death there is enzymatic biochemical activity that may change the blood in an unpredictable way and in various ways in different locations. With reference to the other lesions these are not likely to have been sustained from the same trauma as the epidural haematoma. They are the result of blunt violence such as beating, kicking and/or falls, and may have been sustained during the stay in police detention. The marks on the wrists are characteristically the results of handcuffing. Handcuffs will usually not leave marks, but may if they are too tight, if the person is struggling, or if he is dragged by the handcuffs. In summary, it cannot be determined if the epidural haematoma was caused by a fall or other types of blunt violence. It may well have been sustained just before or during the stay in police detention. An epidural haematoma is curable if an operation with evacuation of the haematoma is performed soon enough. If admitted to hospital sooner, Mr Zabchekov might have been saved.” 96. The Government submitted that Mr Zabchekov had a record at the Juvenile Offenders Pedagogic Centre (Детска педагогическа стая) and at the police in Razgrad on account of numerous alleged thefts. 97. A note dated 3 July 1995, issued by the Juvenile Centre and addressed to the police in Razgrad, stated that Mr Zabchekov, who at that time was 16 years old, had a speech defect and was mentally retarded. Another note, dated 18 November 1995, reiterated those findings. The Government explained that on 7 November 1995 the applicant had been heard by an investigator in Razgrad in connection with a criminal investigation into thefts allegedly committed by her son, Mr Zabchekov. She had stated, inter alia, that her son had always had a stammer. He had been ill since the age of 3. In particular, he had had moments when he could not breathe and his skin became bluish. His eyes had often been swollen and he had fainted during moments of sudden fear. Mr Zabchekov had seen doctors who had stated that he had problems with his spine. The applicant had mentioned the name of a Dr Miceva who had all the documents concerning the medical examinations carried out in respect of her son. 98. On 14 December 1995 Mr Zabchekov had been questioned in connection with criminal proceedings concerning thefts. Asked about his health, he had stated that he had been prone to fainting and pain in his head and eyes. On 4 January 1996 an investigator from the District Investigation Service in Razgrad had opened criminal proceedings against Mr Zabchekov and other persons on charges of theft. On 15 January 1996 Mr Zabchekov had been questioned and had stated, inter alia, that he had been treated by Dr Miceva, a psychiatrist, and that he had been taking medication. Mr Zabchekov's lawyer had requested a psychiatric examination, which had been scheduled for 30 January 1996. 99. Section 35(1) of the Act provided as follows: “The police authorities shall issue a written order for an arrested person to be taken to the [place of detention].” 100. By virtue of Article 388 of the Code, the military courts hear criminal cases in which the accused is, for example, a police officer. Where a case would fall within the competence of the military courts, the preliminary investigation is handled by military investigators and prosecutors. 101. Article 362 § 1 (4) taken in conjunction with Article 359 provides that, in the event of a judgment of the European Court of Human Rights finding a violation of the Convention “of significant importance” to a criminal case that has ended by virtue of a judicial decision, the prosecuting authorities shall request the reopening of the case by the competent court.
| 1
|
train
|
001-88802
|
ENG
|
RUS
|
ADMISSIBILITY
| 2,008
|
ROGOZHIN v. RUSSIA
| 4
|
Inadmissible
|
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
|
The applicant, Mr Valeriy Ivanovich Rogozhin, is a Russian national who was born in 1946 and lives in Vilnus, Lithuania. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. On 18 April 1992 the applicant was dismissed from work at construction department No. 3 of a joint stock company Yamburggazdobycha (ООО “Ямбурггаздобыча”). Contrary to the requirements of the domestic law the applicant's “work record card” – a history of one's working life used for calculating pensions – was kept by the employer and was not returned to the applicant until 27 March 1998. On 10 May 1992 the applicant brought proceedings against his former employer seeking to be reinstated. However, since none of the parties appeared for the hearing, on 22 December 1992 the Nadym Town Court of the Yamalo-Nenets Autonomous Region left the applicant's claims unexamined. It appears that the applicant did not attempt to appeal against the above decision. Six years later, on 3 April 1998, the applicant brought proceedings against his former employer seeking to have the entry on his work record card as regards the date of his dismissal changed to 27 March 1998 and to recover salary arrears. On 15 April 1998 the Nadym Town Court returned the applicant's writ, because he had failed to sign it. On 3 April 1998 the applicant also brought similar proceedings against his former employer before the Noviy Urengoy Town Court. Eventually, on 22 October 1998 the Noviy Urengoy Town Court refused to examine the applicant's claims as it had no territorial jurisdiction over the matter. The applicant did not appeal against this decision. On 15 May 1999 the applicant returned his writ, duly signed, to the Nadym Town Court. On 17 May 1999 the Nadym Town Court asked the applicant to clarify the name and the location of the defendant. Since the applicant did not do so within the prescribed time-limit, on 26 July 1999 the Nadym Town Court returned the writ to the applicant. Eventually, following a new attempt by the applicant, on 16 October 2000 the Nadym Town Court refused to accept the applicant's writ for lack of territorial jurisdiction over the matter. On 21 December 2000 the applicant submitted his claims concerning the date of his dismissal and the payment of salary arrears to the Noviy Urengoy Town Court. On 23 July 2001 the Noviy Urengoy Town Court dismissed the applicant's claims. On 22 November 2001 the Yamalo-Nenets Autonomous Regional Court quashed the judgment on appeal and remitted the case for fresh examination. Following the fresh examination of the case, on 17 January 2002 the Noviy Urengoy Town Court granted the applicant's claims in part, obliged the defendant to change the date of the applicant's dismissal and to pay certain salary arrears. On 18 March 2002 the Yamalo-Nenets Autonomous Regional Court upheld the judgment with regard to changing the date of the applicant's dismissal, quashed the rest of the judgment and remitted it for fresh examination. On 1 April 2002 the hearing of the applicant's case in the part quashed on appeal by the decision of 18 March 2002 was fixed for 20 May 2002. During the hearing on 20 May 2002 the applicant added to his claims, and the defendant brought a counterclaim. The next hearing was fixed for 31 May 2002. Following the applicant's request, on 31 May 2002 the case was assigned to another judge. On 26 September 2002 the date of dismissal on the applicant's work record card was changed in compliance with the judgment of 17 January 2002, as upheld on 18 March 2002, and the enforcement proceedings in this respect were terminated. On 5 December 2002 the Presidium of the Yamalo-Nenets Autonomous Regional Court quashed the judgment of 17 January 2002 and the appeal decision of 18 March 2002 by way of supervisory review and remitted the matter for fresh examination. On 22 January 2003 the Noviy Urengoy Town Court set the hearing for 3 February 2003. As regards the eleven hearings scheduled between 3 February 2003 and 18 August 2004, they were adjourned either on the applicant's requests or in view of the necessity to examine his petitions (i.e. to clarify the decision of 22 January 2003, to obtain additional evidence, to examine some of the applicant's claims in separate proceedings, to suspend the proceedings, to appoint expert examinations, to involve third parties to the proceedings, etc.). However, the Noviy Urengoy Town Court dismissed those requests and petitions, having concluded that they were aimed at delaying the proceedings. On 18 August 2004 the Noviy Urengoy Town Court dismissed the applicant's claims in full. On 2 December 2004 the Yamalo-Nenets Autonomous Regional Court upheld the judgment on appeal. Although the judgment of 17 January 2002 and the appeal decision of 18 March 2002 were quashed by way of supervisory review, the date of the applicant's dismissal as recorded on his work record card in compliance with the above judgments on 26 September 2002 remained unchanged. Under Article 99 of the Code of Civil Procedure of 1964 in force until 1 February 2003, a case must be prepared for trial seven days after the writ is lodged. If litigants are from the same town or territory, disputes between them relating to labour issues must be examined by a court of first instance within ten days. Otherwise such disputes must be examined within twenty days. Under Article 284-1 of the Code of Civil Procedure of 1964, an appeal court must examine an appeal ten days after it is filed. Under Article 154 of the Code of Civil Procedure of the Russian Federation of 2002, effective as from 1 February 2003, disputes relating to labour issues must be examined within one month after the writ is lodged. Under Article 348-1 of the Code of Civil Procedure of the Russian Federation of 2002 an appeal court must examine an appeal one month after it is filed.
| 0
|
train
|
001-58092
|
ENG
|
ITA
|
CHAMBER
| 1,997
|
CASE OF SCARFÒ v. ITALY
| 4
|
Art. 6 inapplicable
|
C. Russo;N. Valticos;R. Pekkanen
|
7. Mr Raffaele Vincenzo Scarfò, a civil servant employed by the Calabria Regional Council, lives in Reggio di Calabria. 8. On 4 May 1982 he instituted proceedings in the Calabria Regional Administrative Court (“the RAC”) for judicial review of a decision of the Regional Council (Consiglio Regionale) assigning him, at the time when he was recruited to a permanent post, to a staff category lower than the one to which he considered himself to be entitled on the basis of the duties he had performed during the period when he was employed on a fixed-term contract. 9. On 28 May 1982 the applicant asked for a date to be fixed for the hearing and for the case to be dealt with speedily. On 14 January 1994 he filed a further application for the proceedings to be expedited. 10. In a judgment of 5 December 1994, deposited with the registry on 13 February 1995, the RAC gave judgment against the applicant.
| 0
|
train
|
001-93577
|
ENG
|
TUR
|
CHAMBER
| 2,009
|
CASE OF MÜCEK v. TURKEY
| 4
|
Violation of Article 5 - Right to liberty and security
|
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky
|
4. The applicant was born in 1960 and lives in Kandıra. 5. On 26 November 1995 the applicant was taken into custody by police officers from the Anti-Terrorist Branch of the Istanbul Security Directorate on suspicion of membership of an illegal organisation, namely the Dev-Yol (Revolutionary Way). On 8 December 1995 he was brought before the investigating judge at the Istanbul State Security Court, who ordered him to be detained pending trial. On 9 May 1996 the public prosecutor at the Istanbul State Security Court filed an indictment against the applicant and twelve other accused. Invoking Article 146 of the Criminal Code, he accused the applicant of membership of an illegal armed organisation and of involvement in activities which undermined the constitutional order of the State. 6. The trial commenced before the Istanbul State Security Court. In the subsequent hearings the court refused to release the applicant on account of the nature of the alleged offence and the state of the evidence. On 7 May 2004 the State Security Courts were abolished following a constitutional amendment, and the applicant’s case was transferred to the Istanbul Assize Court. On 30 November 2006 the applicant was released pending trial.
| 1
|
train
|
001-78595
|
ENG
|
UKR
|
CHAMBER
| 2,006
|
CASE OF SOLOVYEV v. UKRAINE
| 3
|
Preliminary objection dismissed (non-exhaustion);Violation of Art. 6-1;Violation of P1-1;Not necessary to examine Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
|
Peer Lorenzen
|
4. The applicant was born in 1939 and lives in the town of Bat-Yam, Israel. 5. On 26 June 2001 the Commercial Court of the Kherson Region commenced bankruptcy proceedings against the State Enterprise “Khersonskyy Sudnobudivelnyy Zavod”, the applicant's former employer. According to the Government, these proceedings are still pending. 6. On 4 December 2002 the Komsomolskyy District Court of Kherson ordered that company to pay the applicant UAH 9,879 in salary arrears. 7. On 16 January 2003 the Komsomolskyy District Bailiffs' Service of Kherson instituted enforcement proceedings. 8. By letter of 11 September 2003, the Kherson Regional Department of the Ministry of Justice informed the applicant that the judgment in his favour had not been executed due to the substantial number of enforcement proceedings against the debtor company and that the procedure for the forced sale of assets belonging to it had been blocked by the Law on the Introduction of a Moratorium on the Forced Sale of Property of 29 November 2001. 9. On 6 October 2004 the State Property Fund sold 83.61% of the debtor's share capital to a private company. Under the terms of the sales contract, the latter undertook to pay all the salary-related debts of the debtor company. 10. On 22 June 2005 the full amount of the judgment debt was transferred to the deposit account of the Bailiffs' Service. The applicant was invited to submit his bank account details to the Bailiffs' Service. On an unspecified date the applicant received the full amount of the debt. 11. The relevant domestic law is summarised in the judgment of Romashov v. Ukraine (no. 67534/01, §§ 16-18 and 39-41, 27 July 2004).
| 1
|
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